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UNITED STATES
SECURITIES AND EXCHANGE
COMMISSION
Washington,
D.C. 20549
FORM 8-K
CURRENT
REPORT
Pursuant
to Section 13 or 15(d)
of the Securities
Exchange Act of 1934
Date of Report
(date of earliest event reported): December 18, 2024
LIBERTY TRIPADVISOR HOLDINGS, INC.
(Exact name
of registrant as specified in its charter)
| Delaware | |
001-36603 | |
46-3337365 |
(State or other jurisdiction of
incorporation or organization) | |
(Commission
File Number) | |
(I.R.S. Employer
Identification No.) |
12300 Liberty Blvd.
Englewood, Colorado 80112
(Address of principal executive offices
and zip code)
Registrant's telephone number, including area
code: (720) 875-5200
Check the appropriate box below if the Form 8-K filing is intended
to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction
A.2. below):
¨ Written
communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
x Soliciting material pursuant to Rule 14a-12 under the
Exchange Act (17 CFR 240.14a-12)
¨ Pre-commencement communications pursuant to Rule 14d-2(b)
under the Exchange Act (17 CFR 240.14d-2(b))
¨ Pre-commencement communications pursuant to Rule 13e-4(c)
under the Exchange Act (17 CFR 240.13e-4(c))
Securities registered pursuant to Section 12(b) of the Act:
| Title of each class |
Trading symbol(s) |
Name
of each exchange on which registered |
| Series A common stock |
LTRPA |
OTCQB Venture Market |
| Series B common stock |
LTRPB |
OTCQB Venture Market |
Indicate by check mark whether the registrant is an emerging
growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities
Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company ¨
If an emerging growth company, indicate by check mark if the
registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards
provided pursuant to Section 13(a) of the Exchange Act. ¨
Item 1.01. Entry into a Material Definitive Agreement.
On December 18, 2024,
Liberty TripAdvisor Holdings, Inc., a Delaware corporation (“Liberty TripAdvisor”), entered into an Agreement
and Plan of Merger (the “Merger Agreement”) with Tripadvisor, Inc., a Delaware corporation (“Tripadvisor”),
and Telluride Merger Sub Corp., a Delaware corporation and an indirect wholly owned subsidiary of Tripadvisor (“Merger Sub”),
whereby subject to the terms thereof, (i) Merger Sub will merge with and into Liberty TripAdvisor (the “Merger”),
with Liberty TripAdvisor surviving the Merger as the surviving corporation and a wholly owned subsidiary of Tripadvisor; and (ii) the
Merger will be immediately followed by a merger of, Liberty TripAdvisor, as such surviving corporation, with and into TellurideSub LLC,
a Delaware limited liability company and a direct wholly owned subsidiary of Tripadvisor (“ParentSub LLC”) (such merger,
the “ParentSub LLC Merger”, and together with the Merger, the “Combination”), with ParentSub LLC
surviving the ParentSub LLC Merger as the surviving company and a wholly owned subsidiary of Tripadvisor. Liberty TripAdvisor has beneficial
ownership of approximately 21.0% of Tripadvisor’s issued and outstanding common stock, par value $0.001 per share (“Tripadvisor
Common Stock”) and approximately 56.8% of the voting power of the issued and outstanding Tripadvisor Shares in the aggregate
(calculated based on 126,535,867 shares of Tripadvisor Common Stock and 12,799,999 shares of Tripadvisor’s Class B common stock,
par value $0.001 (“Tripadvisor Class B Common Stock”, and together with Tripadvisor Common Stock, “Tripadvisor
Shares”) outstanding as of October 31, 2024, as reported in Tripadvisor’s Quarterly Report on Form 10-Q for
the fiscal quarter ended September 30, 2024, filed with the SEC on November 6, 2024).
In connection with the Merger
Agreement, on December 18, 2024, (i) Certares LTRIP LLC, a Delaware limited liability company (“Certares”),
entered into (a) a voting agreement with Liberty TripAdvisor and Tripadvisor (the “Certares Voting Agreement”),
pursuant to which, among other things, Certares has agreed, subject to the terms of the Certares Voting Agreement, to vote its shares
of Liberty TripAdvisor’s 8% Series A Cumulative Redeemable Preferred Stock, par value $0.01 per share (“LTRPP”),
in favor of the adoption of an amendment (the “Liberty TripAdvisor Charter Amendment”) to the Restated Certificate
of Incorporation of Liberty TripAdvisor, dated August 27, 2014, that amends certain provisions of the Certificate of Designations
of LTRPP, dated March 15, 2020, as amended (the “Certificate of Designations”), and (b) a letter agreement
with Liberty TripAdvisor and Tripadvisor (the “Certares Side Letter”), pursuant to which, among other things, Certares
has agreed, subject to the terms of the Certares Side Letter, to waive the mandatory redemption date under the Certificate of Designations
and certain other rights or requirements under the Certificate of Designations, the Registration Rights Agreement, dated as of March 26,
2020, between Liberty TripAdvisor and Certares, as amended (the “Registration Rights Agreement”), and the Investment
Agreement, dated as of March 15, 2020, among Liberty TripAdvisor, Mr. Maffei and the investors party thereto, as amended or
assigned (the “Investment Agreement”), with respect to the Merger Agreement and the transactions contemplated thereby,
including the Merger, and (ii) Gregory B. Maffei entered into a voting agreement with Liberty TripAdvisor and Tripadvisor (the “Maffei
Voting Agreement”, and together with the Certares Voting Agreement, the “Voting Agreements”), pursuant to
which, among other things, Mr. Maffei has agreed, subject to the terms of the Maffei Voting Agreement, to vote his shares of Liberty
TripAdvisor’s Series A common stock, par value $0.01 per share (“LTRPA”), and Series B common stock,
par value $0.01 per share (“LTRPB” and together with LTRPA, the “Liberty TripAdvisor Common Stock”),
in favor of the adoption of the Merger Agreement and the transactions contemplated thereby, including the Merger, and the Liberty TripAdvisor
Charter Amendment.
Agreement and Plan of Merger
Upon completion of the Combination,
Tripadvisor would own and hold, directly or indirectly, all of the assets and liabilities of Liberty TripAdvisor, and ParentSub LLC would
ultimately survive the Combination as a wholly owned subsidiary of Tripadvisor.
Effect
on Liberty TripAdvisor Common Stock. Pursuant to the Merger Agreement and effective as of the effective time of the Merger
(the “Effective Time”), each share of Liberty TripAdvisor Common Stock issued and outstanding immediately prior to
the Effective Time would be converted into the right to receive $0.2567 in cash (without interest thereon) (the “Common Consideration”),
except that (i) solely with respect to shares of Liberty TripAdvisor Common Stock held by any person who has not voted in favor of
the Merger or consented to it in writing and who is entitled to demand and properly demands appraisal of such shares in accordance with,
and who complies in all respects with, Section 262 of the General Corporation Law of the State of Delaware (the “DGCL”),
such shares will not be converted into the right to receive the Common Consideration and instead holders thereof will only be entitled
to receive the fair value of such shares as determined in accordance with Section 262 of the DGCL and (ii) each share of Liberty
TripAdvisor Common Stock (a) held by Liberty TripAdvisor as treasury stock immediately prior to the Effective Time or (b) owned
by Tripadvisor or Merger Sub immediately prior to the Effective Time, in each case, will cease to be outstanding, will be cancelled without
payment of any consideration therefor, and will cease to exist.
Effect
on Liberty TripAdvisor Preferred Stock. Pursuant to the Merger Agreement and effective as of the Effective Time, all shares
of LTRPP issued and outstanding immediately prior to the Effective Time would be converted into the right to receive in the aggregate
(i) $42,471,000 in cash, without interest thereon, and (ii) 3,037,959 validly issued, fully paid and nonassessable shares of
Tripadvisor Common Stock (such consideration, the “Preferred Consideration”, and together with the Common Consideration,
the “Merger Consideration”), except that each share of LTRPP (a) held by Liberty TripAdvisor as treasury stock
immediately prior to the Effective Time or (b) owned by Tripadvisor or Merger Sub immediately prior to the Effective Time, in each
case, will cease to be outstanding, will be cancelled without payment of any consideration therefor, and will cease to exist.
Effect
on Equity Awards.
| · | Options: Each stock option with respect to Liberty TripAdvisor Common Stock outstanding at the
Effective Time, whether vested or unvested, for which the per share exercise price is less than the Common Consideration will become fully
vested and will terminate and be automatically cancelled as of immediately prior to the Effective Time in exchange for the right to receive
a lump sum cash payment, net of taxes, in an amount equal to (i) the number of shares of Liberty TripAdvisor Common Stock underlying
such stock option multiplied by (ii) an amount equal to the Common Consideration minus the applicable exercise price.
Each stock option with respect to Liberty TripAdvisor Common Stock outstanding at the Effective Time, whether vested or unvested, for
which the per share exercise price is equal to or greater than the Common Consideration will terminate and be cancelled as of immediately
prior to the Effective Time, without any consideration being payable in respect thereof, and have no further force or effect. |
| · | Cash Awards: Each outstanding cash award, whether vested or unvested, outstanding at the Effective
Time will be paid (in the case of performance-based cash awards, at the applicable target level of performance), net of taxes, on the
date of the closing of the Merger (the “Closing”). |
Closing
Conditions. The Closing is subject to certain customary conditions, including (among others): (i) the adoption of the
Merger Agreement by the affirmative vote of holders of a majority of the aggregate voting power of the outstanding shares of Liberty TripAdvisor
Common Stock entitled to vote thereon, voting together as a single class; (ii) the adoption of the Liberty TripAdvisor Charter Amendment
by (a) the affirmative vote of holders of a majority of the aggregate voting power of the outstanding shares of Liberty TripAdvisor
Common Stock entitled to vote thereon, voting together as a single class, and (b) the written consent or affirmative vote of a majority
of the holders of the outstanding shares of LTRPP entitled to vote thereon, given in writing or by vote at a meeting, consenting or voting
(as the case may be) separately as a class (collectively with the approval contemplated by clause (i), the “Liberty TripAdvisor
Requisite Approvals”); and (iii) the absence of any order or law that restrains, enjoins or otherwise prohibits the Closing.
Voting
Covenant. The Merger Agreement provides that Liberty TripAdvisor has agreed to vote its Tripadvisor Shares, representing approximately
56.8% of the voting power of the issued and outstanding Tripadvisor Shares in the aggregate (calculated based on 126,535,867 shares of
Tripadvisor Common Stock and 12,799,999 shares of Tripadvisor Class B Common Stock outstanding as of October 31, 2024, as reported
in Tripadvisor’s Quarterly Report on Form 10-Q for the fiscal quarter ended September 30, 2024, filed with the SEC on
November 6, 2024), in a manner proportionally consistent with the vote of the Tripadvisor Shares not owned by Liberty TripAdvisor
or its officers or directors other than with respect to any vote or written consent to approve a Tripadvisor Acquisition Proposal (as
defined below) in connection with which Liberty TripAdvisor does not enter into a definitive alternative acquisition agreement in accordance
with the terms of the Merger Agreement.
Representations,
Warranties and Covenants. The Merger Agreement includes certain customary representations, warranties and covenants of Liberty
TripAdvisor, Tripadvisor and Merger Sub. In addition, Liberty TripAdvisor has agreed to customary “no-shop” restrictions prohibiting
it from soliciting alternative proposals from or participating in any discussions or negotiations with, third parties regarding alternative
acquisition proposals. The board of directors of Liberty TripAdvisor (the “Liberty TripAdvisor Board”) has agreed to
recommend that holders of shares of Liberty TripAdvisor Common Stock vote in favor of approving the adoption of the Merger Agreement and
the Liberty TripAdvisor Charter Amendment, subject to the right to change its recommendation (i) if the Liberty TripAdvisor Board
(or a duly authorized committee thereof) determines, in good faith and in connection with an intervening event or superior proposal, after,
among other things, consulting with its outside legal counsel and, in the case of a superior proposal, its financial advisor, that failure
to make such change would reasonably be expected to be inconsistent with its fiduciary duties under applicable law or (ii) if Tripadvisor
receives an acquisition proposal involving the sale of Tripadvisor (a “Tripadvisor Acquisition Proposal”) and enters
into, or if Tripadvisor informs Liberty TripAdvisor that Tripadvisor intends to enter into, an acquisition agreement for a Tripadvisor
Acquisition Proposal, in order for Liberty TripAdvisor to enter into an alternative acquisition agreement for an acquisition proposal
with the person that made such Tripadvisor Acquisition Proposal. Liberty TripAdvisor also has the right to terminate the Merger Agreement
if the Liberty TripAdvisor Board (or a duly authorized committee thereof) determines, in good faith and in connection with a superior
proposal, after, among other things, consulting with its outside legal counsel and its financial advisor, that failure to make such change
would reasonably be expected to be inconsistent with its fiduciary duties under applicable law. In the event that the Liberty TripAdvisor
Board (or a duly authorized committee thereof) changes its recommendation other than in connection with a Tripadvisor Acquisition Proposal,
Tripadvisor has the right to terminate the Merger Agreement prior to the receipt of the Liberty TripAdvisor Requisite Approvals and receive
from Liberty TripAdvisor a termination fee equal to $16,310,000. In addition, in the event that Liberty TripAdvisor terminates the Merger
Agreement in connection with a superior proposal, Tripadvisor has the right to receive from Liberty TripAdvisor a termination fee equal
to $16,310,000. Liberty TripAdvisor may also terminate the Merger Agreement to enter into an alternative acquisition agreement in connection
with a Tripadvisor Acquisition Proposal without payment of a termination fee.
Liberty TripAdvisor has also
agreed to effect a redemption of Liberty TripAdvisor’s 0.50% exchangeable senior debentures due 2051 (the “Debentures”)
concurrently with or after the Closing. In the event any holders of the Debentures put or exchange their Debentures for cash prior to
the Closing, Tripadvisor has agreed to provide a loan facility (the “TRIP Loan Facility”) to Liberty TripAdvisor of
approximately $330 million, to repay the Debentures that are put or exchanged prior to Closing, which facility, among other things: (i) will
be a term loan (which may be in the form of a delayed draw term facility), (ii) will have an interest rate equal to (a) the
secured overnight financing rate as administrated by the Federal Reserve Bank of New York plus (b) 6.00%, which shall be repayable
in kind (in lieu of payment in cash) on a quarterly basis (or such other time period as jointly agreed to by Liberty TripAdvisor and Tripadvisor),
(iii) will mature on (a) the earlier of (1) September 18, 2025 and (2) 15 business days after the termination
of the Merger Agreement or (b) such later date as jointly agreed to by Liberty TripAdvisor and Tripadvisor, (iv) will not be
prepayable without the prior written consent of Tripadvisor and must be repaid at maturity in cash, and (v) subject to customary
exceptions and exclusions, will be secured by substantially all of the assets of Liberty TripAdvisor and its subsidiaries.
Termination.
The Merger Agreement, in addition to (i) certain customary termination provisions, (ii) the right of Tripadvisor to terminate
the Merger Agreement following a change of recommendation (other than in connection with a Tripadvisor Acquisition Proposal) of the Liberty
TripAdvisor Board (or a duly authorized committee thereof) and (iii) the right of Liberty TripAdvisor to terminate the Merger Agreement
in connection with a superior proposal or to enter into an alternative acquisition agreement in connection with a Tripadvisor Acquisition
Proposal as discussed above, provides that Liberty TripAdvisor or Tripadvisor may terminate the Merger Agreement, subject to certain limitations,
if (a) the Merger has not been consummated on or before September 18, 2025 or (b) the Liberty TripAdvisor Requisite Approvals
are not obtained at a meeting thereof called for the purpose of approving such matters.
Approval
and Recommendation. The Liberty TripAdvisor Board has unanimously approved the Liberty TripAdvisor Charter Amendment, the
Merger Agreement and the other transaction documents and the transactions contemplated by the Merger Agreement, including the Merger,
the Voting Agreements and the Certares Side Letter, and recommended that the Liberty TripAdvisor stockholders approve the adoption of
the Liberty TripAdvisor Charter Amendment and the Merger Agreement.
The foregoing description
of the Merger Agreement does not purport to be complete and is qualified in its entirety by the full text of the Merger Agreement, a copy
of which is filed herewith as Exhibit 2.1 and the terms of which are incorporated by reference herein.
Voting Agreements and Certares Side Letter
The Certares Voting Agreement
provides that, among other things, Certares has agreed to vote or cause to be voted, or to provide its written consent to in respect of,
its shares of LTRPP, representing all of the shares of LTRPP issued and outstanding, in favor of, among other things, the adoption of
the Liberty TripAdvisor Charter Amendment.
The Maffei Voting Agreement
provides that, among other things, Mr. Maffei has agreed to vote or cause to be voted his shares of Liberty TripAdvisor Common Stock,
representing approximately 39% of the total voting power of the issued and outstanding shares of Liberty TripAdvisor Common Stock in
the aggregate, in favor of, among other things, the adoption of the Liberty TripAdvisor Charter Amendment and the Merger Agreement and
the approval of the transactions contemplated by the Merger Agreement, including the Merger, except that in the event that the Liberty
TripAdvisor Board (or a duly authorized committee thereof) changes its recommendation and Tripadvisor elects not to terminate the Merger
Agreement prior to the Liberty TripAdvisor stockholder meeting, Mr. Maffei will only be obligated to vote shares representing 33.37%
of the total voting power of the shares of Liberty TripAdvisor Common Stock in favor thereof, with any shares in excess of such amount
to be voted on such matters in the same proportion as voted by the Liberty TripAdvisor stockholders other than Mr. Maffei.
In addition, subject to certain
conditions, including that the Liberty TripAdvisor Board (or a duly authorized committee thereof) has not changed its recommendation,
Mr. Maffei has agreed to vote his shares of Liberty TripAdvisor Common Stock subject to the Maffei Voting Agreement against any action
or proposal in favor of any Acquisition Proposal (as defined in the Merger Agreement) and certain other matters. Under the Maffei Voting
Agreement, each of Liberty TripAdvisor and, effective from and following the Effective Time, Tripadvisor and ParentSub LLC, jointly and
severally, will indemnify Mr. Maffei for certain losses incurred in connection with or arising out of (i) the Maffei Voting
Agreement or the performance of Mr. Maffei’s obligations thereunder and any claim relating to the Merger Agreement and the
transactions contemplated thereby or (ii) any claim brought by or on behalf of any stockholder of Liberty TripAdvisor (and any resolution
thereof) relating to the Merger or any of the other transactions contemplated by the Merger Agreement that is brought against Liberty
TripAdvisor and/or any of its directors and/or officers (in their capacities as such), in each case, including, subject to certain conditions,
reasonable fees and expenses of Mr. Maffei incurred in the defense of any claim brought by a third party relating thereto. In addition,
Liberty TripAdvisor has agreed to pay up to $200,000 in the aggregate of reasonable out-of-pocket costs and expenses (which cap excludes
any and all filing fees payable under the HSR Act) incurred by Mr. Maffei in connection with the preparation, negotiation, execution
and delivery of the Maffei Voting Agreement.
Each of Certares and Mr. Maffei
has also agreed to (i) certain restrictions on transfers of their respective shares of Liberty TripAdvisor Common Stock and LTRPP,
as applicable, and (ii) waive any appraisal rights to which it or he may be entitled pursuant to applicable law in connection with
the Merger. Mr. Maffei has also agreed to, subject to certain exceptions, certain restrictions on conversion of his shares of LTRPB
into shares of LTRPA.
The Voting Agreements will
terminate upon, among other events, the termination of the Merger Agreement in accordance with its terms.
The Certares Side Letter provides
that, among other things, Certares has waived (i) the mandatory redemption date under the Certificate of Designations and certain
other rights and requirements under the Certificate of Designations requiring Liberty TripAdvisor to redeem, repurchase or otherwise acquire
any of the shares of LTRPP and (ii) certain notice, consent, approval, consultation or other rights that Certares holds or may hold
pursuant to the Certificate of Designations, the Registration Rights Agreement and the Investment Agreement (except with respect to Certares’
consent or affirmative vote with respect to the Liberty TripAdvisor Charter Amendment) with respect to the Merger Agreement and the transactions
contemplated thereby, including the Merger. In addition, under the Certares Side Letter, Certares provides certain releases of claims
that arise from or relate to the foregoing waivers in favor of Liberty TripAdvisor. The Certares Side Letter also provides that each of
the Registration Rights Agreement and the Investment Agreement will terminate effective as of the Effective Time.
The Certares Side Letter will
terminate upon, among other events, the termination of the Merger Agreement in accordance with its terms. If the Certares Side Letter
is terminated, the waivers summarized above will automatically terminate except as such waivers relate to the period during which the
Certares Side Letter was in effect.
The foregoing description
of the Voting Agreements and the Certares Side Letter does not purport to be complete and is qualified in its entirety by the full text
of the respective Voting Agreements and the Certares Side Letter, copies of which are filed herewith as Exhibits 10.1, 10.2 and 10.3 and
the terms of which are incorporated by reference herein.
The Merger Agreement, the
Voting Agreements and the Certares Side Letter (collectively, the “Transaction Documents”) and the above descriptions
have been included to provide investors and security holders with information regarding the terms of the Transaction Documents, the Merger
and the other transactions contemplated by such agreements. It is not intended to provide any other factual information about Liberty
TripAdvisor, Tripadvisor, Merger Sub or their respective subsidiaries or affiliates, or equityholders. The representations, warranties,
covenants and agreements set forth in the applicable Transaction Documents were made only for the purposes of that agreement and as of
specific dates, were made solely for the benefit of the respective parties to the Transaction Documents (and the express third party beneficiaries
described therein), as applicable, and may be subject to limitations agreed upon by the contracting parties, including being qualified
by confidential disclosures made for the purposes of allocating contractual risk between the respective parties to the Transaction Documents
instead of establishing these matters as facts, as well as by information contained in each party’s Annual Report on Form 10-K
and Quarterly Reports on Form 10-Q, and may be subject to standards of materiality applicable to the contracting parties that differ
from those applicable to investors. Investors should be aware that the representations, warranties, covenants and agreements or any description
thereof may not reflect the actual state of facts or condition of Liberty TripAdvisor, Tripadvisor, Merger Sub, or any of their respective
subsidiaries, affiliates, businesses, or equityholders. Moreover, information concerning the subject matter of the representations, warranties
and covenants may change after the date the Transaction Documents, as applicable, which subsequent information may or may not be fully
reflected in public disclosures by Liberty TripAdvisor or Tripadvisor. Accordingly, the representations and warranties in the Transaction
Documents, as applicable, should not be relied on as characterization of the actual state of facts about Liberty TripAdvisor, Tripadvisor
or Merger Sub.
Item 2.03 Creation of a Direct Financial Obligation
or an Obligation under an Off- Balance Sheet Arrangement of a Registrant.
The information set forth
in Item 1.01 above regarding the TRIP Loan Facility is incorporated herein by reference.
Item 5.02 Departure of Directors or Certain
Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
After December 31, 2024,
following the expiration of his existing employment arrangement, Mr. Maffei will no longer be an employee of Liberty TripAdvisor, but
will continue to serve as President, Chief Executive Officer and Chairman of the Liberty TripAdvisor Board and will be appointed the
chairman of the Executive Committee of the Liberty TripAdvisor Board (the “Executive
Committee”). Liberty TripAdvisor has agreed to pay Mr. Maffei the following amounts: (i) an annual retainer equal to
$184,060 (payable quarterly in arrears) for his service as a non-employee director of Liberty TripAdvisor, effective January 1, 2025
(which amount will be the annual fee payable to nonemployee directors of Liberty TripAdvisor in 2025), (ii) an annual fee equal to
$5,000 (payable quarterly in arrears) for his service as a member of the Executive Committee (which amount will also be the annual
fee payable to nonemployee directors serving on the Executive Committee) and (iii) a fee equal to $25,000 (payable quarterly in
arrears) for his service as the chairman of the Executive Committee.
Item 7.01. Regulation FD Disclosure.
On
December 19, 2024, Liberty TripAdvisor and
Tripadvisor issued a joint press release announcing that they have entered into the Merger
Agreement. A copy of the press release is attached as Exhibit 99.1 to this Current Report on Form 8-K and is
incorporated herein by reference.
The
information provided under Item 7.01 of this Current Report on Form 8-K, including Exhibit 99.1, is being furnished and is not
deemed to be “filed” with the SEC for the
purposes of Section 18 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) or otherwise
subject to the liabilities of that section and is not incorporated by reference into any filing of Liberty TripAdvisor under
the Securities Act of 1933, as amended (the “Securities Act”) or the Exchange Act, whether made before
or after the date hereof, except as shall be expressly set forth by specific reference to this Current Report on Form 8-K in such
a filing.
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits.
Exhibit
No. |
|
Description |
| |
|
|
| 2.1† |
|
Agreement and Plan of Merger, dated December 18, 2024, by and among Liberty TripAdvisor Holdings, Inc., Tripadvisor, Inc. and Telluride Merger Sub Corp. |
| 10.1 |
|
Voting Agreement, dated December 18, 2024, by and among Liberty TripAdvisor Holdings, Inc., Tripadvisor, Inc. and Certares LTRIP LLC |
| 10.2 |
|
Voting Agreement, dated December 18, 2024, by and among Liberty TripAdvisor Holdings, Inc., Tripadvisor, Inc. and Gregory B. Maffei |
| 10.3 |
|
Letter Agreement, dated December 18, 2024, by and among Liberty TripAdvisor Holdings, Inc., Tripadvisor, Inc. and Certares LTRIP LLC |
| 99.1 |
|
Joint Press Release, dated December 19, 2024 |
| 104 |
|
Cover Page Interactive Data File (formatted as Inline XBRL and contained in Exhibit 101) |
† Schedules have been omitted pursuant
to Item 601(b)(2) of Regulation S-K. Liberty TripAdvisor hereby undertakes to furnish supplemental copies of any of the omitted schedules
upon request by the Securities and Exchange Commission (“SEC”); provided, however, that Liberty TripAdvisor may request
confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended, for any schedules so furnished.
Cautionary Note Regarding Forward Looking Statements
This Current Report on Form 8-K
includes certain forward-looking statements within the meaning of Section 27A of the Securities Act of 1933, as amended, and Section 21E
of the Securities Exchange Act of 1934, as amended, including certain statements relating to the completion of the proposed transaction,
the timing of the proposed transaction and other matters related to such proposed transaction, including the entry into Maffei Voting
Agreement, the Certares Voting Agreement, the Certares Side Letter, the commitment to provide the TRIP Loan Facility and the issuance
of Tripadvisor Common Stock as part of the Preferred Consideration. All statements other than statements of historical fact are “forward-looking
statements” for purposes of federal and state securities laws. These forward-looking statements generally can be identified by phrases
such as “possible,” “potential,” “intends” or “expects” or other words or phrases of similar
import or future or conditional verbs such as “will,” “may,” “might,” “should,” “would,”
“could,” or similar variations. These forward-looking statements involve many risks and uncertainties that could cause actual
results and the timing of events to differ materially from those expressed or implied by such statements, including, but not limited to:
historical financial information may not be representative of future results; there may be significant transaction costs in connection
with the proposed transaction (including significant tax liability); any effect of the announcement of the proposed transaction on the
ability of Liberty TripAdvisor and Tripadvisor to operate their respective businesses and retain and hire key personnel and to maintain
favorable business relationships; the parties may not realize the potential benefits of the proposed transaction in the near term or at
all; the satisfaction of all conditions to the proposed transaction (including stockholder approvals) may not be achieved; the proposed
transaction may not be consummated; there may be liabilities that are not known, probable or estimable at this time; the proposed transaction
may result in the diversion of management’s time and attention to issues relating to the proposed transaction; unfavorable outcome
of legal proceedings; risks related to disruption of management time from ongoing business operations due to the proposed transaction;
risks related to Liberty TripAdvisor’s failure to repay the TRIP Loan Facility when due; risks relating to Tripadvisor operating
without a controlling stockholder after the Closing; risks inherent to the business may result in additional strategic and operational
risks, which may impact Tripadvisor’s and/or Liberty TripAdvisor’s risk profiles, which each company may not be able to mitigate
effectively; and other risks and uncertainties detailed in periodic reports that Tripadvisor and Liberty TripAdvisor file with the SEC.
These forward-looking statements speak only as of the date of this Current Report on Form 8-K, and Tripadvisor and Liberty TripAdvisor
expressly disclaim any obligation or undertaking to disseminate any updates or revisions to any forward-looking statement contained herein
to reflect any change in Tripadvisor’s or Liberty TripAdvisor’s expectations with regard thereto or any change in events,
conditions or circumstances on which any such statement is based. Please refer to the publicly filed documents of Tripadvisor and Liberty
TripAdvisor, including their most recent Forms 10-K and 10-Q, as such risk factors may be amended, supplemented or superseded from time
to time by other reports Tripadvisor or Liberty TripAdvisor subsequently file with the SEC, for additional information about Tripadvisor
and Liberty TripAdvisor and about the risks and uncertainties related to Tripadvisor’s and Liberty TripAdvisor’s businesses
which may affect the statements made in this Current Report on Form 8-K.
No Offer or Solicitation
This communication is not intended to, and does not, constitute a proxy statement or solicitation of a proxy, consent, vote or authorization
with respect to any securities or in respect of the Merger. This communication does not
constitute an offer to sell or the solicitation of an offer to buy any securities or a solicitation of any vote or approval, nor shall
there be any sale of securities in any jurisdiction in which such offer, solicitation or sale would be unlawful prior to registration
or qualification under the securities laws of any such jurisdiction. No offer of securities shall be made except by means of a prospectus
meeting the requirements of Section 10 of the Securities Act.
Additional Information
Nothing in this Current
Report on Form 8-K shall constitute a solicitation to buy or an offer to sell shares of common stock of Liberty TripAdvisor or
Tripadvisor. Liberty TripAdvisor intends to file with the SEC relevant materials, including a proxy statement on Schedule 14A in
connection with the proposed transaction and a Schedule 13E-3 transaction statement. LIBERTY TRIPADVISOR’S STOCKHOLDERS AND
OTHER INVESTORS ARE URGED TO READ THE PROXY STATEMENT AND THE SCHEDULE 13E-3 TRANSACTION STATEMENT WHEN THEY BECOME AVAILABLE,
TOGETHER WITH ALL RELEVANT SEC FILINGS REGARDING THE PROPOSED TRANSACTION, AND ANY OTHER RELEVANT DOCUMENTS FILED AS EXHIBITS
THEREWITH, AS WELL AS ANY AMENDMENTS OR SUPPLEMENTS TO THOSE DOCUMENTS CAREFULLY AND IN THEIR ENTIRETY BEFORE MAKING ANY VOTING OR INVESTMENT DECISION WITH RESPECT TO THE TRANSACTIONS, BECAUSE THEY WILL CONTAIN IMPORTANT INFORMATION ABOUT THE
PROPOSED TRANSACTION. After the confirmation (or deemed confirmation) by the staff of the SEC that there are no further comments on
the proxy statement or that Liberty TripAdvisor may commence mailing of the proxy statement, the proxy statement and other relevant
materials for the proposed transaction will be mailed to all Liberty TripAdvisor stockholders. Copies of these SEC filings will be
available, free of charge, at the SEC’s website (http://www.sec.gov). Copies of the filings together with the materials
incorporated by reference therein will also be available, without charge, by directing a request to Liberty TripAdvisor
Holdings, Inc., 12300 Liberty Boulevard, Englewood, Colorado 80112, Attention: Investor Relations, Telephone: (720)
875-5200.
Participants in a Solicitation
Liberty TripAdvisor anticipates
that the following individuals will be participants (the “Liberty TripAdvisor Participants”) in the solicitation of
proxies from holders of Liberty TripAdvisor’s LTRPA and LTRPB in connection with the proposed transaction: Gregory
B. Maffei, Chairman of the Liberty TripAdvisor Board and Liberty TripAdvisor’s President and Chief Executive Officer, Christy Haubegger,
Michael J. Malone, Chris Mueller, Larry E. Romrell, Albert E. Rosenthaler and J. David Wargo, all of whom are members of the Liberty TripAdvisor
Board, Brian J. Wendling, Liberty TripAdvisor’s Senior Vice President and Chief Financial Officer, and Renee L. Wilm, Liberty TripAdvisor’s
Chief Legal Officer and Chief Administrative Officer. Information regarding the Liberty TripAdvisor Participants, including a description
of their direct or indirect interests, by security holdings or otherwise, and Liberty TripAdvisor’s transactions with related persons
can be found under the captions “Proposal 1 – The Election of Directors Proposal”, “Director Compensation”,
“Proposal 3 – The Say-On-Pay Proposal”, “Executive Officers”, “Executive Compensation”,
“Security Ownership of Certain Beneficial Owners and Management—Security Ownership of Management” and “Certain
Relationships and Related Party Transactions” contained in Liberty TripAdvisor’s definitive proxy statement for its 2024 annual
meeting of stockholders (the “Liberty Proxy Statement”), which was filed with the SEC on April 24, 2024 and is
available at: https://www.sec.gov/ix?doc=/Archives/edgar/data/1606745/000110465924051281/tm242814d2_def14a.htm. To the extent that certain
Liberty TripAdvisor Participants or their affiliates have acquired or disposed of security holdings since the “as of” date
disclosed in the Liberty Proxy Statement, such transactions have been or will be reflected on Statements of Change in Ownership on Form 4
or amendments to beneficial ownership reports on Schedules 13D filed with the SEC, which are available at: https://www.sec.gov/edgar/browse/?CIK=1606745&owner=exclude.
Additional information regarding the Liberty TripAdvisor Participants in the proxy solicitation and a description of their interests will
be contained in the proxy statement for Liberty TripAdvisor’s special meeting of stockholders and other relevant materials to be
filed with the SEC in respect of the contemplated transactions when they become available. These documents can be obtained free of charge
from the sources indicated above.
Tripadvisor anticipates that the following individuals may be participants
(the “Tripadvisor Participants”) in the solicitation of proxies from holders
of Liberty TripAdvisor’s LTRPA and LTRPB in connection with the proposed transaction: Gregory B. Maffei, Chairman of the board of
directors of Tripadvisor (the “Tripadvisor Board”), Matt Goldberg, President
and Chief Executive Officer and Director, Trynka Shineman Blake, Betsy Morgan, Jay C. Hoag, Greg O’Hara, Jeremy Philips, Albert
E. Rosenthaler, Jane Jie Sun and Robert S. Wiesenthal, all of whom are members of the Tripadvisor Board, Mike Noonan, Chief Financial
Officer, and Seth J. Kalvert, Chief Legal Officer and Secretary. Information about the Tripadvisor Participants, including a description
of their direct or indirect interests, by security holdings or otherwise, and Tripadvisor’s transactions with related persons is
set forth in the sections entitled “Proposal No. 1: Election of Directors”, “Proposal No. 3: Advisory Vote on Compensation
of Named Executive Officers”, “Proposal No. 4: Advisory Vote on the Frequency of Future Advisory Resolutions to Approve The
Compensation Of Tripadvisor’s Named Executive Officers”, “Executive Officers”, “Compensation Discussion
and Analysis”, “CEO Pay Ratio”, “Pay Versus Performance”, “Executive Compensation”, “Director
Compensation”, “Security Ownership of Certain Beneficial Owners and Management” and “Certain Relationships and
Related Transactions” contained in Tripadvisor’s definitive proxy statement for its 2024 annual meeting of shareholders, which
was filed with the SEC on April 29, 2024 (which is available at https://www.sec.gov/ix?doc=/Archives/edgar/data/1526520/000095017024049349/trip-20240426.htm)
and other documents subsequently filed by Tripadvisor with the SEC. To the extent holdings of Tripadvisor capital stock by the directors
and executive officers of Tripadvisor have changed from the amounts of Tripadvisor capital stock held by such persons as reflected therein,
such changes have been or will be reflected on Statements of Change in Ownership on Form 4 filed with the SEC. Additional information
regarding the Tripadvisor Participants in the proxy solicitation and a description of their interests will be contained in the proxy statement
for Liberty TripAdvisor’s special meeting of stockholders and other relevant materials to be filed with the SEC in respect of the
contemplated transactions when they become available. These documents can be obtained free of charge from the sources indicated above.
SIGNATURE
Pursuant to the
requirements of the Securities Exchange Act of 1934, as amended, the registrant has duly caused this report to be signed on its behalf
by the undersigned hereunto duly authorized.
Date: December 19, 2024
| |
LIBERTY TRIPADVISOR HOLDINGS, INC. |
| |
|
| |
By: |
/s/ Katherine C. Jewell |
| |
Name: |
Katherine C. Jewell |
| |
Title: |
Vice President |
Exhibit 2.1
EXECUTION VERSION
AGREEMENT AND PLAN OF MERGER
among
LIBERTY TRIPADVISOR HOLDINGS, INC.,
TRIPADVISOR, INC.
and
TELLURIDE MERGER SUB CORP.
Dated as of December 18, 2024
TABLE OF CONTENTS
Page
| ARTICLE I THE
MERGER; CLOSING; EFFECTIVE TIME |
3 |
| |
|
| |
1.1 |
The Merger |
3 |
| |
1.2 |
Closing |
3 |
| |
1.3 |
Effective Time |
3 |
| |
|
|
|
| ARTICLE II ORGANIZATIONAL
DOCUMENTS, DIRECTORS AND OFFICERS OF THE SURVIVING CORPORATION |
4 |
| |
|
| |
2.1 |
The Certificate of Incorporation |
4 |
| |
2.2 |
The Bylaws |
4 |
| |
2.3 |
Directors of Surviving Corporation |
4 |
| |
2.4 |
Officers of the Surviving Corporation |
4 |
| |
|
|
|
| ARTICLE III
EFFECT OF THE MERGER ON SECURITIES; EXCHANGE |
4 |
| |
|
| |
3.1 |
Effect on Capital Stock |
4 |
| |
3.2 |
Exchange of Certificates |
6 |
| |
3.3 |
Dissenters’ Rights |
9 |
| |
3.4 |
Adjustments to Prevent Dilution |
10 |
| |
3.5 |
Treatment of Equity Awards |
10 |
| |
|
|
|
| ARTICLE IV REPRESENTATIONS
AND WARRANTIES OF THE COMPANY |
12 |
| |
|
| |
4.1 |
Organization, Good Standing and
Qualification |
12 |
| |
4.2 |
Capital Structure |
12 |
| |
4.3 |
Corporate Authority and Approval;
Financial Advisor Opinion |
14 |
| |
4.4 |
Governmental Filings; No Violations |
15 |
| |
4.5 |
Company Reports; Financial Statements |
16 |
| |
4.6 |
Absence of Certain Changes |
17 |
| |
4.7 |
Litigation |
17 |
| |
4.8 |
No Undisclosed Liabilities |
17 |
| |
4.9 |
Takeover Statutes |
18 |
| |
4.10 |
Brokers and Finders |
18 |
| |
4.11 |
Ownership of Parent Common Stock |
18 |
| |
4.12 |
Employee Benefits |
18 |
| |
4.13 |
Compliance with Laws, Licenses |
19 |
| |
4.14 |
Material Contracts |
20 |
| |
4.15 |
Taxes |
22 |
| |
4.16 |
Intellectual Property |
23 |
| |
4.17 |
Data Privacy |
25 |
| |
4.18 |
Insurance |
26 |
| |
4.19 |
Real Property |
26 |
| |
4.20 |
Regulation U |
26 |
| |
4.21 |
Supplemental Indenture |
26 |
TABLE OF CONTENTS
(cont.)
Page
| |
4.22 |
No Other Representations
and Warranties |
26 |
| |
|
|
|
| ARTICLE V REPRESENTATIONS
AND WARRANTIES OF PARENT AND MERGER SUB |
27 |
| |
|
| |
5.1 |
Organization, Good Standing and
Qualification |
27 |
| |
5.2 |
Ownership of Merger Sub |
28 |
| |
5.3 |
Corporate Authority; Approval |
28 |
| |
5.4 |
Parent Reports; Financial Statements |
29 |
| |
5.5 |
Absence of Certain Changes |
30 |
| |
5.6 |
No Undisclosed Liabilities |
30 |
| |
5.7 |
Takeover Statutes |
30 |
| |
5.8 |
Governmental Filings; No Violations |
30 |
| |
5.9 |
Litigation |
31 |
| |
5.10 |
Brokers and Finders |
31 |
| |
5.11 |
Taxes |
31 |
| |
5.12 |
Financial Ability |
32 |
| |
5.13 |
Solvency |
32 |
| |
5.14 |
No Other Representations and
Warranties |
32 |
| |
5.15 |
Access to Information; Disclaimer |
32 |
| |
|
|
|
| ARTICLE VI COVENANTS |
33 |
| |
|
| |
6.1 |
Company Interim Operations |
33 |
| |
6.2 |
No Solicitation; Acquisition
Proposals |
37 |
| |
6.3 |
Information Supplied; Schedule
13E-3 |
42 |
| |
6.4 |
Company Stockholders Meeting |
43 |
| |
6.5 |
Filings; Other Actions; Notification
and Cooperation |
44 |
| |
6.6 |
Access; Consultation |
45 |
| |
6.7 |
Stock Exchange De-listing and
De-registration |
46 |
| |
6.8 |
Publicity |
46 |
| |
6.9 |
Expenses; Transfer Taxes |
46 |
| |
6.10 |
Indemnification; Directors’
and Officers’ Insurance |
47 |
| |
6.11 |
Takeover Statute |
49 |
| |
6.12 |
Control of the Company’s
or Parent’s Operations |
49 |
| |
6.13 |
Section 16(b) |
49 |
| |
6.14 |
Approval by Sole Stockholder
of Merger Sub |
50 |
| |
6.15 |
Stockholder Litigation |
50 |
| |
6.16 |
Treatment of Exchangeable Debentures |
51 |
| |
6.17 |
Treatment of Forward Contract |
52 |
| |
6.18 |
Intended Tax Treatment |
52 |
| |
6.19 |
Amendment of the Company Charter |
53 |
| |
6.20 |
Certain Contract Terminations |
53 |
| |
6.21 |
ParentSub LLC Merger |
53 |
| |
6.22 |
Waiver of Conflicts Regarding
Representation |
54 |
TABLE OF CONTENTS
(cont.)
Page
| |
6.23 |
Voting of Parent
Common Stock |
56 |
| |
|
|
|
| ARTICLE VII
CONDITIONS |
56 |
| |
|
| |
7.1 |
Conditions to Each Party’s
Obligation to Effect the Merger |
56 |
| |
7.2 |
Conditions to Obligations of
Parent and Merger Sub |
57 |
| |
7.3 |
Conditions to Obligation of the
Company |
58 |
| |
7.4 |
Frustration of Conditions |
58 |
| |
|
|
|
| ARTICLE VIII
TERMINATION |
59 |
| |
|
| |
8.1 |
Termination by Mutual Consent |
59 |
| |
8.2 |
Termination by Either Parent
or the Company |
59 |
| |
8.3 |
Termination by the Company |
59 |
| |
8.4 |
Termination by Parent |
60 |
| |
8.5 |
Effect of Termination and Abandonment |
60 |
| |
|
|
|
| ARTICLE IX MISCELLANEOUS
AND GENERAL |
62 |
| |
|
| |
9.1 |
Survival |
62 |
| |
9.2 |
Modification or Amendment |
62 |
| |
9.3 |
Waiver |
62 |
| |
9.4 |
Counterparts; Effectiveness |
63 |
| |
9.5 |
Governing Law and Venue; Waiver
of Jury Trial |
63 |
| |
9.6 |
Notices |
64 |
| |
9.7 |
Entire Agreement |
65 |
| |
9.8 |
No Third Party Beneficiaries |
65 |
| |
9.9 |
Obligations of Parent and of
the Company |
66 |
| |
9.10 |
Severability |
66 |
| |
9.11 |
Interpretation |
66 |
| |
9.12 |
Assignment |
68 |
| |
9.13 |
Specific Performance |
68 |
| |
9.14 |
No Recourse |
69 |
| |
9.15 |
Definitions |
69 |
INDEX OF DEFINED TERMS
| Defined
Term |
Section |
| |
|
| Acceptable
Confidentiality Agreement |
9.15
|
| Acquisition
Proposal |
9.15 |
| Action |
9.5(b) |
| Affiliate |
9.15 |
| Agreement |
Preamble |
| Alternative
Acquisition Agreement |
6.2(d) |
| Antitrust
Laws |
9.15 |
| Applicable
Date |
4.5(a) |
| A&R
Company Bylaws |
4.4(b) |
| Baker
Botts |
9.15 |
| Balance
Sheet |
4.8 |
| Bankruptcy
and Equity Exception |
4.3(a) |
| Beneficially
Own |
9.15 |
| Beneficial
Owner |
9.15 |
| Beneficial
Ownership |
9.15
|
| Capitalization
Date |
4.2(a) |
| Carrying
Credit |
9.15 |
| Cash
Award |
3.5(b) |
| Certares |
Recitals |
| Certares
Side Letter |
9.15 |
| Certares
Voting Agreement |
Recitals |
| Certificate |
3.1(c) |
| Certificate
of Amendment |
6.19 |
| Certificate
of Designations |
Recitals |
| Certificate
of Incorporation |
2.1 |
| Certificate
of Merger |
1.3 |
| Change
in Recommendation |
6.2(d) |
| Citi |
4.3(b) |
| Closing |
1.2 |
| Closing
Date |
1.2 |
| Code |
Recitals |
| Consent |
4.4(a) |
| Common
Share |
3.1(a) |
| Common
Share Merger Consideration |
3.1(a) |
| Company |
Preamble |
| Company,
LLC |
9.15 |
| Company
Board |
Recitals |
| Company
Charter Amendment |
Recitals |
| Company
Disclosure Letter |
ARTICLE IV |
| Company
Equity Awards |
9.15 |
| Company
Intellectual Property |
9.15 |
| Company
Licensed IP |
9.15 |
| Company
Owned IP |
9.15 |
| Company
Material Adverse Effect |
9.15 |
| Defined
Term |
Section |
| Company
Parent Shares |
6.23 |
| Company
Plan |
9.15 |
| Company
Recommendation |
4.3(c) |
| Company
Related Parties |
8.5(f) |
| Company
Reports |
4.5(a) |
| Company
Requisite Approval |
4.3(a) |
| Company
Section 16 Officer |
9.15 |
| Company
Stock Plan(s) |
9.15 |
| Company
Stockholders Meeting |
6.4(a) |
| Company
Termination Fee |
8.5(b) |
| Consent |
4.4(a) |
| Contracts |
4.4(b) |
| Covered
Person |
9.15 |
| COVID-19 |
9.15 |
| D&O
Insurance |
6.10(b) |
| Dealer |
6.17(b) |
| Delaware
Chancery Court |
9.5(b) |
| DGCL |
Recitals |
| Disinterested
Stockholders |
9.15 |
| Dissenting
Shares |
3.1(c) |
| Dissenting
Stockholders |
3.1(a)
|
| Effective
Time |
1.3 |
| ERISA |
9.15 |
| Exchange
Act |
4.4(a) |
| Exchange
Fund |
3.2(a) |
| Exchange
Rates |
9.15 |
| Exchangeable
Debentures |
9.15 |
| Exchangeable
Senior Debentures Indenture |
9.15 |
| Excluded
Common Share |
3.1(a) |
| Excluded
Series A Preferred Share |
3.1(b) |
| Excluded
Shares |
3.1(c) |
| Federal
Reserve Board |
9.15 |
| FCPA |
4.13(b) |
| Filing
Time |
6.3(b) |
| Foreign
Competition Laws |
4.4(a) |
| Forward
Contract |
9.15 |
| Forward
Contract Amendment |
6.17(a) |
| Form FR
G-3 |
4.20 |
| GAAP |
9.15 |
| Governmental
Entity |
4.4(a) |
| HSR
Act |
4.4(a) |
| Indebtedness |
9.15 |
| Indemnified
Parties |
6.10(a) |
| Intellectual
Property |
9.15 |
| Intended
Tax Treatment |
Recitals |
| Defined
Term |
Section |
| Intervening
Event |
9.15 |
| Investee |
9.15 |
| IT
Systems |
9.15 |
| Knowledge
of the Company |
9.15 |
| Knowledge
of Parent |
9.15 |
| Law |
9.15 |
| Liberty
Media |
9.15 |
| Liberty
Media Contracts |
9.15 |
| Liberty
Media Letter Agreement |
9.15 |
| Liberty
Media Side Letter |
9.15 |
| Licenses |
4.13(a) |
| Lien |
4.2(e) |
| Maffei |
9.15 |
| Maffei
Voting Agreement |
Recitals |
| Margin
Stock |
9.15 |
| Marks |
9.15 |
| Material
Contracts |
4.14(i) |
| Merger |
Recitals |
| Merger
Consideration |
3.1(c) |
| Merger
Sub |
Preamble |
| Necessary
Information |
6.22(c) |
| Non-Recourse
Party |
9.14 |
| O’Melveny |
9.15 |
| Option |
3.5(a) |
| Order |
9.15 |
| OTC |
6.3(c) |
| Other
Company Filing |
6.3(c) |
| Parent |
Preamble |
| Parent
Acquisition Proposal |
9.15 |
| Parent
Board |
Recitals |
| Parent
Business Combination |
6.1(f) |
| Parent
Class B Common Stock |
4.11 |
| Parent
Common Stock |
4.11 |
| Parent
Credit Agreement |
9.15 |
| Parent
Disclosure Letter |
ARTICLE V |
| Parent
Loan Facility |
9.15 |
| Parent
Loan Facility Guarantors |
9.15 |
| Parent
Material Adverse Effect |
9.15 |
| Parent
Related Parties |
8.5(f) |
| Parent
Reports |
9.15 |
| Parent
Section 16 Officer |
9.15 |
| Parent
Shares |
6.23 |
| ParentSub
LLC |
Recitals |
| ParentSub
LLC Merger |
Recitals |
| Paying
Agent |
3.2(a) |
| Defined
Term |
Section |
| Payment |
8.5(e) |
| Permitted
Liens |
9.15 |
| Permitted
Parent Access Circumstance |
6.22(c) |
| Person |
9.15 |
| Personal
Information |
9.15 |
| Post-Closing
Representation |
6.22(a) |
| Potter
Anderson |
9.15 |
| Privacy
Laws |
9.15 |
| Privacy
Requirements |
9.15 |
| Privileged
Information |
9.15 |
| Proceedings |
4.7 |
| Processing |
9.15 |
| Protected
Information |
9.15 |
| Proxy
Statement |
6.3(a) |
| Real
Property |
4.19
|
| Registered
IP |
4.16(a) |
| Regulation
U |
9.15 |
| Related
Parties |
8.5(f) |
| Representative |
9.15 |
| Represented
Persons |
6.22(a) |
| Restated
Company Certificate of Incorporation |
Recitals |
| Restated
Parent Bylaws |
5.8(b) |
| Restated
Parent Certificate of Incorporation |
5.8(b) |
| Rev.
Proc. 2018-12 |
6.18(b) |
| Schedule
13E-3 |
6.3(a) |
| SEC |
4.5(a) |
| Securities
Act |
4.4(a) |
| Series A
Common Share Merger Consideration |
3.1(a) |
| Series A
Common Stock |
3.1(a) |
| Series A
Option |
3.5(a) |
| Series A
Preferred Shares |
3.1(b) |
| Series A
Preferred Share Cash Merger Consideration |
3.1(b) |
| Series A
Preferred Share Equity Merger Consideration |
3.1(b) |
| Series A
Preferred Share Merger Consideration |
3.1(b) |
| Series B
Common Share Merger Consideration |
3.1(a) |
| Series B
Common Stock |
3.1(a) |
| Series B
Option |
3.5(a) |
| Series C
Common Stock |
4.2(a) |
| Shares |
3.1(c) |
| Sherman |
9.15 |
| Skadden |
9.15 |
| Solvent |
9.15 |
| Special
Committee |
Recitals |
| Staff |
6.3(b) |
| Subsidiary |
9.15 |
| Defined
Term |
Section |
| Superior
Proposal |
9.15 |
| Surviving
Corporation |
1.1 |
| Takeover
Statute |
4.9 |
| Tax |
9.15 |
| Tax
Return |
9.15 |
| Taxable |
9.15 |
| Termination
Date |
8.2(a) |
| Trade
Secrets |
9.15 |
| Transaction
Documents |
9.15 |
| Treasury
Regulations |
9.15 |
| Uncertificated
Series A Preferred Shares |
3.1(c) |
| Uncertificated
Shares |
3.1(c) |
| Voting
Agreements |
Recitals |
| Willful
Breach |
9.15 |
Exhibits:
| Exhibit A: |
Form of Amended
and Restated Certificate of Incorporation |
| Exhibit B: |
Form of Amended and Restated
Bylaws |
| Exhibit C: |
Form of Certificate of
Amendment to the Restated Company Certificate of Incorporation |
AGREEMENT AND PLAN OF MERGER
This AGREEMENT AND PLAN OF
MERGER (this “Agreement”), is entered into as of December 18, 2024, by and among Liberty TripAdvisor Holdings, Inc.,
a Delaware corporation (the “Company”), Tripadvisor, Inc., a Delaware corporation (“Parent”),
and Telluride Merger Sub Corp., a Delaware corporation and an indirect wholly owned Subsidiary of Parent (“Merger Sub”).
RECITALS
WHEREAS, the board of directors
of the Company (the “Company Board”) has, as of the date of this Agreement, by resolutions duly adopted, unanimously
(a) determined that this Agreement, including the merger of Merger Sub with and into the Company with the Company surviving the
merger as the surviving corporation (the “Merger”), the Parent Loan Facility, the Maffei Voting Agreement and the
transactions contemplated thereby, the Certares Voting Agreement and the transactions contemplated thereby, the Certares Side Letter
and the transactions contemplated thereby, and the other transactions contemplated hereby, are advisable and fair to, and in the best
interests of, the Company and its stockholders, including the Disinterested Stockholders, (b) declared this Agreement and the transactions
contemplated hereby (including the Merger) advisable, (c) approved this Agreement, the execution and delivery by the Company of
this Agreement, the performance by the Company of its covenants and agreements contained herein and the consummation of the Merger and
the other transactions contemplated hereby upon the terms and subject to the conditions contained herein, (d) approved and declared
advisable an amendment (the “Company Charter Amendment”) to the Restated Certificate of Incorporation of the Company,
dated August 27, 2014 (the “Restated Company Certificate of Incorporation”), that amends certain provisions of
the Certificate of Designations of 8% Series A Cumulative Redeemable Preferred Stock of the Company, dated March 15, 2020 (the
“Certificate of Designations”), (e) directed that the adoption of this Agreement and the Company Charter Amendment
be submitted to a vote of the stockholders of the Company entitled to vote thereon at the Company Stockholders Meeting, and (f) subject
to Section 6.2, resolved to recommend that the stockholders of the Company entitled to vote thereon approve the adoption
of this Agreement and the Company Charter Amendment in accordance with the General Corporation Law of the State of Delaware (“DGCL”);
WHEREAS, the board of directors
of Parent (the “Parent Board”) has formed a special committee (the “Special Committee”), consisting
solely of non-management independent members of the Parent Board who are not affiliates of the Company to, among other things, evaluate
and oversee the terms of this Agreement, the Merger and the other transactions contemplated hereby, and to make a recommendation to the
Parent Board as to whether Parent and Merger Sub should enter into this Agreement;
WHEREAS, the Special
Committee has, as of the date of this Agreement, by resolutions duly adopted, unanimously (a) determined that this Agreement
and the transactions contemplated hereby, including the Merger and the Parent Loan Facility are advisable, fair to, and in the best
interests of, Parent and its stockholders (excluding the Company, its Affiliates and Certares), (b) recommended to the Parent
Board that the Parent Board (i) determine that this Agreement, the transactions contemplated hereby, including the Merger and
the Parent Loan Facility, are fair to, and in the best interests of, Parent and its stockholders (excluding the Company, its
Affiliates and Certares), (ii) declare this Agreement and the transactions contemplated hereby (including the Merger and the
Parent Loan Facility) advisable and (iii) approve this Agreement, the execution and delivery by Parent and Merger Sub of this
Agreement, the performance by Parent and Merger Sub of the covenants and agreements contained herein and the consummation of the
transactions contemplated hereby, including the Merger and the Parent Loan Facility, upon the terms and subject to the conditions
contained herein;
WHEREAS, the Parent
Board, having received the unanimous recommendation of the Special Committee, has, as of the date of this Agreement, by resolutions
duly adopted, (a) determined that this Agreement and the transactions contemplated hereby, including the Merger and the Parent
Loan Facility are fair to, and in the best interests of, Parent and its stockholders (excluding the Company, its Affiliates and
Certares), (b) declared this Agreement and the transactions contemplated hereby (including the Merger and the Parent Loan
Facility) advisable and (c) approved this Agreement, the execution and delivery by Parent and Merger Sub of this Agreement, the
performance by Parent and Merger Sub of its covenants and agreements contained herein and the consummation of the Merger and the
other transactions contemplated hereby upon the terms and subject to the conditions contained herein;
WHEREAS, the board of
directors of Merger Sub, by resolutions duly adopted, has unanimously (a) approved and declared advisable this Agreement, the
Merger and the consummation of the other transactions contemplated hereby upon the terms and subject to the conditions set forth in
this Agreement, (b) determined that the Merger is fair to, and in the best interests of, Merger Sub and its sole stockholder,
(c) resolved to recommend that the sole stockholder of Merger Sub approve the adoption of this Agreement and (d) directed
that the adoption of this Agreement be submitted to a vote of the sole stockholder of Merger Sub;
WHEREAS, concurrently with
the execution and delivery of this Agreement and as a condition and material inducement to Parent entering into this Agreement, Maffei
is entering into a voting agreement with the Company and Parent (the “Maffei Voting Agreement”), agreeing to vote
certain Shares Beneficially Owned by Maffei in favor of approving the adoption of this Agreement, the Merger and the transactions contemplated
hereby, including voting in favor of approving the adoption of the Company Charter Amendment, subject to the terms and conditions set
forth therein;
WHEREAS, concurrently with
the execution and delivery of this Agreement and as a condition and material inducement to Parent entering into this Agreement, Certares
LTRIP LLC, a Delaware limited liability company (“Certares”), is entering into a voting agreement with the Company
and Parent (the “Certares Voting Agreement” and together with the Maffei Voting Agreement, collectively, the “Voting
Agreements”), agreeing to vote certain Shares Beneficially Owned by Certares in favor of approving the adoption of the Company
Charter Amendment, subject to the terms and conditions set forth therein;
WHEREAS, immediately following
the Effective Time (as defined below), the Surviving Corporation (as defined below) shall be merged with and into TellurideSub LLC, a
Delaware limited liability company and a direct wholly owned Subsidiary of Parent (“ParentSub LLC”), and the separate
corporate existence of the Surviving Corporation shall thereupon cease (the “ParentSub LLC Merger”);
WHEREAS, the Company, Parent
and Merger Sub desire to make certain representations, warranties, covenants and agreements in connection with this Agreement; and
WHEREAS, for
U.S. federal income tax purposes, the parties intend that the Merger taken together with the ParentSub LLC Merger qualify as a “reorganization”
within the meaning of Section 368(a) of the Internal Revenue Code of 1986, as amended (the “Code”) and Treasury
Regulations promulgated thereunder (the “Intended Tax Treatment”), and that this Agreement be, and is hereby, adopted
as a plan of reorganization within the meaning of Section 368(a) of the Code and Treasury Regulations Sections 1.368-2(g) and
1.368-3.
NOW, THEREFORE, in consideration
of the premises, and of the representations, warranties, covenants and agreements contained herein, the receipt and sufficiency of which
are acknowledged and agreed, the parties hereto agree as follows:
ARTICLE I
THE MERGER; CLOSING; EFFECTIVE TIME
1.1 The
Merger. Upon the terms and subject to the conditions set forth in this Agreement, and in accordance with the DGCL, at the Effective
Time, Merger Sub shall be merged with and into the Company and the separate corporate existence of Merger Sub shall thereupon cease.
The Company shall be the surviving corporation in the Merger (in such capacity, sometimes hereinafter referred to as the “Surviving
Corporation”), and become, directly or indirectly, a wholly owned Subsidiary of Parent, and the separate corporate existence
of the Company with all its property, rights, privileges, powers and franchises shall continue unaffected by the Merger, except as set
forth in ARTICLE II. The Merger shall have the effects specified in the DGCL, this Agreement and the Certificate of Merger
(as defined below).
1.2 Closing.
Unless this Agreement shall have been terminated pursuant to ARTICLE VIII and unless otherwise mutually agreed in writing
by the parties hereto, the closing of the Merger (the “Closing”) shall be conducted remotely via the electronic exchange
of documents and signatures at 8:00 a.m., Eastern Time, on the date that is three (3) Business Days following the day on which the
last to be satisfied or waived of each of the conditions set forth in ARTICLE VII (other than those conditions that by their
terms are to be satisfied at the Closing, but subject to the satisfaction or waiver of those conditions) shall have been satisfied or
waived in accordance with this Agreement. The date on which the Closing occurs is referred to as the “Closing Date”.
1.3 Effective
Time. On the terms and subject to the conditions set forth herein, on the Closing Date, Parent and the Company will cause the certificate
of merger with respect to the Merger (the “Certificate of Merger”) to be executed, acknowledged and filed with the
Secretary of State of the State of Delaware as provided in the DGCL. The Merger shall become effective on the date and at the time when
the Certificate of Merger has been duly filed with the Secretary of State of the State of Delaware or at such later date or time as may
be agreed upon by the Company and Parent in writing and set forth in the Certificate of Merger in accordance with the DGCL (the “Effective
Time”).
ARTICLE II
ORGANIZATIONAL DOCUMENTS, DIRECTORS AND OFFICERS
OF THE SURVIVING CORPORATION
2.1 The
Certificate of Incorporation. At the Effective Time, the certificate of incorporation of the Company in effect immediately prior
to the Effective Time (the “Certificate of Incorporation”) shall be amended and restated in its entirety to read in
the form set forth in Exhibit A until thereafter amended as provided therein and applicable Law, subject to Section 6.10.
2.2 The
Bylaws. At the Effective Time, the bylaws of the Company in effect immediately prior to the Effective Time (the “Bylaws”)
shall be amended and restated in their entirety to read in the form set forth in Exhibit B until thereafter amended as provided
therein and applicable Law, subject to Section 6.10.
2.3 Directors
of Surviving Corporation. The parties hereto shall take all actions necessary so that the directors of Merger Sub immediately prior
to the Effective Time shall, from and after the Effective Time, be the directors of the Surviving Corporation to hold office until their
respective successors have been duly elected or appointed and qualified or until their earlier death, resignation or removal in accordance
with the DGCL, the Certificate of Incorporation and the Bylaws.
2.4 Officers
of the Surviving Corporation. The parties hereto shall take all actions necessary so that the officers of Merger Sub immediately
prior to the Effective Time shall, from and after the Effective Time, be the officers of the Surviving Corporation to hold office until
their successors have been duly elected or appointed and qualified or until their earlier death, resignation or removal in accordance
with the DGCL, the Certificate of Incorporation and the Bylaws.
ARTICLE III
EFFECT OF THE MERGER ON SECURITIES;
EXCHANGE
3.1 Effect
on Capital Stock. At the Effective Time, as a result of the Merger and without any action on the part of the holder of any securities
of the Company, Parent or Merger Sub or any other person:
(a) Common
Share Merger Consideration. Each share of Series A common stock, par value $0.01, of the Company (the “Series A
Common Stock”) and Series B common stock, par value $0.01, of the Company (the “Series B Common Stock”
and together with the Series A Common Stock, collectively, the “Common Shares” and each a “Common Share”)
issued and outstanding immediately prior to the Effective Time (other than (i) the Common Shares owned by Parent or Merger Sub,
(ii) the Common Shares owned by the Company as treasury stock (each such Common Share referred to in clauses (i) and
(ii) above, an “Excluded Common Share” and, collectively, the “Excluded Common Shares”)
and (iii) Common Shares that are held by stockholders (“Dissenting Stockholders”) who (A) have not voted
in favor of the Merger or consented to it in writing and (B) have properly demanded appraisal rights of such Common Shares in accordance
with, and have complied in all respects with, all provisions of Section 262 of the DGCL concerning the rights of holders of Common
Shares to demand appraisal of such Common Shares in connection with the Merger) shall be converted into the right to receive cash without
interest thereon, with (x) each share of Series A Common Stock receiving $0.2567 in cash (without interest thereon) (the “Series A
Common Share Merger Consideration”) and (y) each share of Series B Common Stock receiving $0.2567 in cash (without
interest thereon) (the “Series B Common Share Merger Consideration” and, together with the Series A Common
Share Merger Consideration, collectively, the “Common Share Merger Consideration”).
(b) Series A
Preferred Share Merger Consideration. All of the shares of 8% Series A Cumulative Redeemable Preferred Stock, par value $0.01,
of the Company (the “Series A Preferred Shares”) issued and outstanding immediately prior to the Effective Time
(other than (i) the Series A Preferred Shares owned by Parent or Merger Sub and (ii) the Series A Preferred Shares
owned by the Company as treasury stock (each such Series A Preferred Share referred to in clauses (i) and (ii) above,
an “Excluded Series A Preferred Share” and, collectively, the “Excluded Series A Preferred Shares”))
shall be converted into the right to receive in the aggregate (A) $42,471,000 in cash, without interest thereon (the “Series A
Preferred Share Cash Merger Consideration”) and (B) 3,037,959 validly issued, fully paid and nonassessable shares of Parent
Common Stock (the “Series A Preferred Share Equity Merger Consideration” and, together with the Series A
Preferred Share Cash Merger Consideration, collectively, the “Series A Preferred Share Merger Consideration”).
(c) At
the Effective Time, all of the Common Shares and the Series A Preferred Shares (collectively, the “Shares”) (other
than the Excluded Common Shares and Excluded Series A Preferred Shares (collectively, the “Excluded Shares”)
and the Common Shares owned by Dissenting Stockholders (the “Dissenting Shares”)) then issued and outstanding shall
cease to be outstanding, shall be cancelled and shall cease to exist, and (i) each certificate (a “Certificate”)
formerly representing any of the Shares (other than the Excluded Shares and the Dissenting Shares) and (ii) each book-entry account
formerly representing any uncertificated Common Shares (“Uncertificated Common Shares”) (other than the Excluded Shares
and the Dissenting Shares) or any uncertificated Series A Preferred Shares (“Uncertificated Series A Preferred Shares”)
shall thereafter represent only the right to receive the applicable Common Share Merger Consideration or the Series A Preferred
Share Merger Consideration, as applicable (collectively, the “Merger Consideration”), and the holders thereof shall
cease to have any rights with respect to such Shares other than the right to receive the applicable Merger Consideration upon surrender
thereof in accordance with Section 3.2, and each Certificate and Uncertificated Share formerly representing Shares owned
by Dissenting Stockholders shall thereafter represent only the right to receive the payment of which reference is made in Section 3.3.
(d) Cancellation
of Excluded Shares. Each Excluded Share issued and outstanding as of immediately prior to the Effective Time shall, by virtue of
the Merger and without any action on the part of the Company, Parent or Merger Sub, cease to be outstanding, shall be cancelled without
payment of any consideration therefor and shall cease to exist.
(e) Merger
Sub. Each share of common stock, par value $0.01, of Merger Sub issued and outstanding immediately prior to the Effective Time shall
be converted into one (1) share of common stock, par value $0.01, of the Surviving Corporation.
3.2 Exchange
of Certificates.
(a) Paying
Agent. Immediately prior to the Effective Time, Parent shall deposit, or cause to be deposited, with a paying agent selected by Parent
with the Company’s prior written approval, which shall not be unreasonably withheld, conditioned or delayed (the “Paying
Agent”), for the benefit of the holders of (i) Common Shares (other than Excluded Common Shares and Dissenting Shares)
an aggregate amount of cash comprising the amounts required to be delivered pursuant to Section 3.1(a) in respect of
Common Shares and (ii) Series A Preferred Shares (other than Excluded Series A Preferred Shares), (A) an aggregate
amount of cash comprising amounts required to be delivered pursuant to Section 3.1(b), (B) an aggregate number of uncertificated,
whole book-entry shares of Parent Common Stock comprising the Series A Preferred Share Equity Merger Consideration and (C) cash
in an amount sufficient to pay any dividends or distributions as provided in Section 3.2(d), in each case, without any interest
(such aggregate amount of consideration being hereinafter referred to as the “Exchange Fund”). The Paying Agent shall
invest the cash portion of the Exchange Fund as directed by Parent; provided that (x) such investments shall be an obligation
of, or guaranteed by, the United States of America, in commercial paper obligations rated A-1 or P-1 or better by Moody’s Investors
Service, Inc. or Standard & Poor’s Corporation, respectively, or in certificates of deposit, bank repurchase agreements
or bankers’ acceptances of commercial banks and (y) no such investment (or losses thereon) shall affect the amount of Merger
Consideration payable to the holders of Shares pursuant to Section 3.1. To the extent that there are losses with respect
to such investments, or the Exchange Fund diminishes for any other reason below the level required to make prompt cash payment as contemplated
by Section 3.1, Parent shall promptly replace or restore the cash in the Exchange Fund so as to ensure that the Exchange
Fund is at all times maintained at a level sufficient to make all cash payments required pursuant to Section 3.1. No later
than five (5) Business Days prior to the Closing Date, Parent shall enter into an agreement with the Paying Agent, in form and substance
reasonably satisfactory to the Company (which confirmation of satisfaction shall not be unreasonably withheld, conditioned or delayed),
to effect the applicable terms of this Agreement.
(b) Exchange
Procedures. Promptly after the Effective Time (and in any event, in the case of holders of Common Shares within five (5) Business
Days thereafter or in the case of holders of Series A Preferred Shares within one (1) Business Day thereafter), Parent shall
cause the Paying Agent to mail to each holder of record of a Certificate representing Common Shares and deliver to each holder of record
a Certificate representing Series A Preferred Shares, in each case outstanding immediately prior to the Effective Time, as applicable
(other than the Excluded Shares and Shares owned by Dissenting Stockholders): (i) a letter of transmittal in a form reasonably acceptable
to the Company (which such consent must be provided by the Company prior to the Closing) advising such holder of the effectiveness of
the Merger and the conversion of its Certificates into the applicable Common Share Merger Consideration or the Series A Preferred
Share Merger Consideration, as applicable, and specifying that delivery shall be effected, and risk of loss and title to such Certificates
shall pass, only upon delivery of the Certificates (or affidavits of loss in lieu of such Certificates, as provided in Section 3.2(g))
and (ii) instructions for use in effecting the surrender of such Certificates (or affidavits of loss in lieu of such Certificates
as provided in Section 3.2(g)). Upon the surrender of the Certificates (or affidavits of loss in lieu thereof as provided
in Section 3.2(g)) to the Paying Agent in accordance with the terms of such transmittal materials, the holders of such Certificates
shall be entitled to receive in exchange therefor, and Parent shall cause the Paying Agent to pay or deliver as promptly as reasonably
practicable thereafter (and in any event, in the case of holders of Certificates representing Series A Preferred Shares, within
two (2) Business Days), an amount in immediately available funds (or, if no wire transfer instructions are provided, a check, and
in each case, after giving effect to any required Tax withholding provided in Section 3.2(i)) equal to the cash amount (rounded
to the nearest cent) that such holder is entitled to receive pursuant to Section 3.1(a) or Section 3.1(b),
as applicable, cash in an amount sufficient to pay any dividends or distributions as provided in Section 3.2(d), and/or a
number of shares of Parent Common Stock which shall represent, in the aggregate, the whole number of shares of Parent Common Stock that
such holder has the right to receive pursuant to Section 3.1(b), as applicable, in each case, after giving effect to any
required Tax withholding provided in Section 3.2(i), and the Certificates so surrendered shall forthwith be cancelled. No
interest will be paid or accrued on any amount payable to holders of such Certificates. In the event of a transfer of ownership of Common
Shares or Series A Preferred Shares, as applicable, represented by such Certificates that are not registered in the transfer records
of the Company, a check for any cash to be paid or the shares of Parent Common Stock to be exchanged, as applicable, upon due surrender
of such Certificates, may be issued and/or paid to such a transferee if such Certificates formerly representing such Common Shares or
Series A Preferred Shares, as applicable, are 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.
(c) Uncertificated
Shares. Promptly after the Effective Time (and in any event, in the case of holders of Common Shares within five (5) Business
Days thereafter or in the case of holders of Series A Preferred Shares within one (1) Business Day thereafter), Parent shall
cause the Paying Agent to (i) mail to each registered holder of Uncertificated Common Shares (other than in respect of the Excluded
Shares and Dissenting Shares) and deliver to each registered holder of Uncertificated Series A Preferred Shares (other than in respect
of the Excluded Shares and Dissenting Shares) materials advising such holder of the effectiveness of the Merger and the conversion of
(A) the Common Shares into the right to receive the applicable Common Share Merger Consideration and (B) the Series A
Preferred Shares into the right to receive the Series A Preferred Share Merger Consideration, as applicable, and (ii) deliver
(A) the applicable Common Share Merger Consideration that such holder is entitled
to receive in respect of its Common Shares pursuant to Section 3.1(a) and (B) the Series A Preferred Share
Merger Consideration that such holder is entitled to receive in respect of its Series A Preferred Shares pursuant to Section 3.1(b) (in
each case, after giving effect to any required Tax withholdings as provided in Section 3.2(i)), without interest thereon.
(d) Distributions
with Respect to Unexchanged Shares. All shares of Parent Common Stock to be issued pursuant to the Merger shall be deemed issued
and outstanding as of the Effective Time and whenever a dividend or other distribution is declared by Parent in respect of the Parent
Common Stock, the record date for which is after the Effective Time, that declaration shall include dividends or other distributions
in respect of all shares of Parent Common Stock issuable in the Merger. No dividends or other distributions in respect of the Parent
Common Stock issued pursuant to the Merger shall be paid to any holder of any unsurrendered Certificate until such Certificate (or affidavit
of loss in lieu thereof) is surrendered for exchange in accordance with this ARTICLE III. Subject to the effect of applicable
Laws, following surrender of any such Certificate (or affidavit of loss in lieu thereof), there shall be issued and/or paid to the holder
of the whole shares of Parent Common Stock issued in exchange therefor, without interest thereon, (i) at the time of such surrender,
the dividends or other distributions with a record date after the Effective Time theretofore payable with respect to such whole shares
of Parent Common Stock and not paid and (ii) at the appropriate payment date, the dividends or other distributions payable with
respect to such whole shares of Parent Common Stock with a record date after the Effective Time, but with a payment date subsequent to
surrender.
(e) Transfers.
From and after the Effective Time, there shall be no transfers on the stock transfer books of the Company of the Shares that were outstanding
immediately prior to the Effective Time.
(f) Termination
of the Exchange Fund. Any portion of the Exchange Fund (including the proceeds of any investments of the Exchange Fund) that remains
unclaimed by the stockholders of the Company for twelve (12) months after the Effective Time shall be delivered, at Parent’s option,
to Parent. Any holder of Shares (other than the Excluded Shares) who has not theretofore complied with this ARTICLE III shall
thereafter look only to Parent for delivery of any payment of Merger Consideration and cash in an amount sufficient to pay any dividends
or distributions, as applicable (after giving effect to any required Tax withholdings as provided in Section 3.2(i)) upon
due surrender of its Certificates (or affidavits of loss in lieu of such Certificates as provided in Section 3.2(g)), without
any interest thereon. Notwithstanding the foregoing, none of the Surviving Corporation, Parent, the Paying Agent or any other Person
shall be liable to any former holder of Shares for any amount properly delivered to a public official pursuant to applicable abandoned
property, escheat or similar Laws. To the fullest extent permitted by Law, immediately prior to the date any Merger Consideration would
otherwise escheat to or become the property of any Governmental Entity, such Merger Consideration shall become the property of ParentSub
LLC, free and clear of all claims or interest of any Person previously entitled thereto.
(g) Lost,
Stolen or Destroyed Certificates. In the event any of the Certificates shall have been lost, stolen or destroyed, upon the making
of an affidavit (in form and substance satisfactory to the Company) of that fact by the Person claiming such Certificate to be lost,
stolen or destroyed to the Paying Agent or ParentSub LLC, the Paying Agent will issue in exchange for such lost, stolen or destroyed
Certificate the Merger Consideration that would have been issuable or payable pursuant to the provisions of this ARTICLE III
(after giving effect to any required Tax withholdings as provided in Section 3.2(i)) had such lost, stolen or destroyed
Certificates been surrendered. No bond or other surety shall otherwise be required to be paid, posted or delivered in connection with
the foregoing.
(h) Tax
Treatment. For all purposes of this Section 3.2 and for U.S. federal income tax purposes, and in accordance with Treasury
Regulations Section 1.358-2(a)(2)(ii), a holder of Series A Preferred Shares will be treated as having surrendered, in exchange
for the Series A Preferred Share Cash Merger Consideration to be paid to such holder pursuant to Section 3.1, a number
of Series A Preferred Shares (which are specifically identified by such holder in the letter of transmittal to be exchanged for
such holder’s aggregate Series A Preferred Share Cash Merger Consideration) equal to the product of (A) the total number
of Series A Preferred Shares held by such holder and converted into the right to receive the Series A Preferred Share Merger
Consideration pursuant to this Agreement and (B) a fraction, the numerator of which is the Series A Preferred Share Cash Merger
Consideration and the denominator of which is the sum of (x) the fair market value of the Series A Preferred Share Equity Merger
Consideration and (y) the Series A Preferred Share Cash Merger Consideration.
(i) Withholding
Rights. Each of Parent, Merger Sub, the Surviving Corporation and the Paying Agent shall be entitled to deduct and withhold from
the consideration otherwise payable pursuant to this Agreement such amounts as are required to be deducted and withheld with respect
to the making of such payment under the Code, or any other applicable state, local or foreign Tax Law. To the extent that amounts are
so deducted or withheld and timely remitted by Parent, Merger Sub, the Surviving Corporation or the Paying Agent, as applicable, to the
applicable Governmental Entity, such withheld 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 by Parent, Merger Sub, the Surviving Corporation or the Paying Agent,
as the case may be.
3.3 Dissenters’
Rights. Notwithstanding anything to the contrary herein, any Dissenting Shares (until such time as such stockholder effectively withdraws,
fails to perfect, or otherwise loses such stockholder’s appraisal rights under the DGCL with respect to such shares, at which time
such shares shall cease to be Dissenting Shares, as applicable) shall not be converted into or represent the right to receive the applicable
Common Share Merger Consideration pursuant to the provisions of this ARTICLE III unless and until the holder thereof shall
have failed to perfect or shall have effectively withdrawn or otherwise lost such holder’s right to appraisal under the DGCL, and
instead and in lieu thereof the Dissenting Stockholders shall be entitled to receive only the payments provided by Section 262 of
the DGCL with respect to the Common Shares owned by such Dissenting Stockholders. From and after the Effective Time, all Dissenting Shares
shall no longer be outstanding and shall be cancelled and cease to exist, and each Dissenting Stockholder shall cease to have any rights
with respect thereto, except the right to receive the fair value of such Dissenting Shares in accordance with the provisions of Section 262
of the DGCL. Notwithstanding the foregoing, if, after the Effective Time any Person who otherwise would be deemed a Dissenting Stockholder
shall have failed to properly perfect or shall have effectively withdrawn or otherwise lost the right to appraisal under Section 262
of the DGCL or if a court of competent jurisdiction shall finally determine that the Dissenting Stockholder is not entitled to relief
provided by Section 262 of the DGCL with respect to any Common Shares, such Common Shares shall thereupon be treated as though such
Common Shares had been converted, as of the Effective Time, into the right to receive the applicable Common Share Merger Consideration
without interest and less any required Tax withholding. Prior to the Effective Time, the Company shall give Parent written notice as
promptly as reasonably practicable of any written demands for appraisal, attempted withdrawals of such demands, and any other instruments
served pursuant to applicable Law received by the Company relating to stockholders’ rights of appraisal. The Company shall not,
except with the prior written consent of Parent, voluntarily make any payment with respect to any demands for appraisal, offer to settle
or settle any such demands or approve any withdrawal of any such demands. Any amounts required to be paid in respect of the Common Shares
held by the Dissenting Stockholders shall be paid by Parent or Parent shall cause ParentSub LLC to pay such amounts.
3.4 Adjustments
to Prevent Dilution. In the event that Parent or the Company changes the number of Parent Shares (as defined below), Shares or securities
convertible or exchangeable into or exercisable for Parent Shares or Shares, as applicable, in each case issued and outstanding prior
to the Effective Time as a result of a distribution, reclassification, stock split (including a reverse stock split), stock dividend
or distribution, recapitalization, subdivision, or other similar transaction, the Merger Consideration shall be equitably adjusted to
eliminate the effects of such event on the Merger Consideration.
3.5 Treatment
of Equity Awards.
(a) Treatment
of Stock Options. At the Effective Time, with respect to each outstanding option (a “Option”) to purchase Series A
Common Stock granted under a Company Stock Plan (a “Series A Option”), whether vested or unvested, (i) if
the per Common Share exercise price of such Option is equal to or greater than the Series A Common Share Merger Consideration, such
Option shall terminate and be cancelled as of immediately prior to the Effective Time, without any consideration being payable in respect
thereof, and have no further force or effect and (ii) if the per Common Share exercise price of such Option is less than the Series A
Common Share Merger Consideration, such Option shall become fully vested and shall terminate and be automatically cancelled as of immediately
prior to the Effective Time in exchange for the right to receive, in accordance with this Section 3.5(a), a lump sum cash
payment in the amount equal to (A) the number of shares of Series A Common Stock underlying the Option immediately prior to
the Effective Time, multiplied by (B) an amount equal to the Series A Common Share Merger Consideration minus
the applicable exercise price. At the Effective Time, with respect to each outstanding Option to purchase Series B Common Stock
granted under a Company Stock Plan (a “Series B Option”), whether vested or unvested, (i) if the per Common
Share exercise price of such Option is equal to or greater than the Series B Common Share Merger Consideration, such Option shall
terminate and be cancelled as of immediately prior to the Effective Time, without any consideration being payable in respect thereof,
and have no further force or effect and (ii) if the per Common Share exercise price of such Option is less than the Series B
Common Share Merger Consideration, such Option shall become fully vested and shall terminate and be automatically cancelled as of immediately
prior to the Effective Time in exchange for the right to receive, in accordance with this Section 3.5(a), a lump sum cash
payment in the amount equal to (A) the number of shares of Series B Common Stock underlying the Option immediately prior to
the Effective Time, multiplied by (B) an amount equal to the Series B Common Share Merger Consideration minus
the applicable exercise price. From and after the Effective Time, each Option shall no longer be exercisable by the former holder thereof,
but shall only entitle such holder to the payment of the amount described in this Section 3.5(a), if any. Parent shall, or,
if applicable, shall cause one of its Subsidiaries to, pay the amounts (if any) payable under this Section 3.5(a) to
each former holder of an Option that was outstanding immediately prior to the Effective Time through ParentSub LLC’s payroll to
such former holder, as soon as practicable following the Effective Time (but in any event not later than ten (10) calendar days
thereafter), net of any Taxes withheld pursuant to Section 3.2(i).
(b) Treatment
of Cash Awards. Each outstanding cash award (a “Cash Award”) under a Company Stock Plan, whether vested or unvested,
outstanding at the Effective Time shall be paid (in the case of performance-based Cash Awards, at the applicable target level of performance)
on the Closing Date. Such cash payments shall be made through ParentSub LLC’s payroll and shall be subject to applicable Tax withholding
requirements. From and after the Effective Time, each Cash Award shall only entitle the applicable award holder to the payment of the
amount described in this Section 3.5(b).
(c) Further
Action. At or prior to the Effective Time, the Company, the Company Board and the compensation committee of the Company Board, as
applicable, shall adopt any resolutions and take any actions which are reasonably necessary (i) to effectuate the provisions of
this Section 3.5 and (ii) cause the Company Stock Plans to terminate at the Effective Time.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
Except (a) as set forth
in the corresponding sections or subsections of the disclosure letter delivered to Parent by the Company at the time of entering into
this Agreement (the “Company Disclosure Letter”), it being understood and agreed that any disclosure set forth in
one section or subsection of the Company Disclosure Letter shall be deemed to be disclosed with respect to, and shall be deemed to apply
to and qualify, the section or subsection of this Agreement to which it corresponds in number and each other section or subsection of
this Agreement to the extent the qualifying nature of such disclosure with respect to such other section or subsection is reasonably
apparent on the face of such disclosure, or (b) as disclosed in any Company Reports filed with the SEC on or after the Applicable
Date and prior to the second Business Day prior to the date of this Agreement (excluding any disclosures (other than statements of historical
fact) contained in any “Forward-Looking Statements” and “Risk Factors” sections of such Company Reports and any
other disclosures included or referenced in any such Company Reports that are cautionary, predictive or forward looking in nature); provided
that nothing disclosed in any such Company Reports will be deemed to modify or quantify the representations and warranties set forth
in the first sentence of Section 4.6, the Company hereby represents and warrants to Parent and Merger Sub as follows (provided,
that no representation or warranty is made in this ARTICLE IV with respect to the substance of any financial or other information
(i) which has directly been provided by Parent for the purpose of assisting the Company with its SEC reporting obligations as a
public company or (ii) extracted and reproduced in the Company Reports from the Parent Reports):
4.1 Organization,
Good Standing and Qualification. The Company is a legal entity duly organized, validly existing and in good standing under the Laws
of its jurisdiction of organization. The Company 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, except where the failure to have such power or authority
would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. Except as would not, individually
or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, each of the Company’s Subsidiaries is a
legal entity duly organized, validly existing and (where such concept is recognized) 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 duly qualified or licensed,
and has all necessary governmental approvals, to do business and (where such concept is recognized) is in good standing in each jurisdiction
in which the property owned, leased or operated by it or the nature of the business conducted by it makes such approvals, qualification
or licensing necessary, except where the failure to be so duly approved, qualified or licensed and in good standing would not, individually
or in the aggregate, reasonably be expected to have a Company Material Adverse Effect.
4.2 Capital
Structure.
(a) The
authorized capital stock of the Company consists of (i) 200,000,000 shares of Series A Common Stock, (ii) 7,500,000 shares
of Series B Common Stock, (iii) 200,000,000 shares of Series C Common Stock, par value $0.01 (the “Series C
Common Stock”) and (iv) 50,000,000 shares of Preferred Stock, of which 187,414 shares have been designated as 8% Series A
Cumulative Redeemable Preferred Stock. As of the close of business on December 16, 2024 (the “Capitalization Date”),
(A) 73,084,484 shares of Series A Common Stock were issued and outstanding, (B) 4,815,438 shares of Series B Common
Stock were issued and outstanding, (C) no shares of Series C Common Stock were issued and outstanding, (D) 187,414 Series A
Preferred Shares were issued and outstanding, (E) no Shares are held in the treasury of the Company, (F) no Shares were held
by any Subsidiary of the Company, and (G) 1,529,221 Common Shares were reserved for issuance under the Company Stock Plans (of which
929,999 Common Shares were subject to outstanding Series A Options and 599,222 Common Shares were subject to outstanding Series B
Options). As of the Capitalization Date, Cash Awards in an aggregate of $1,176,266 were outstanding. All of the outstanding Shares have
been duly authorized and validly issued and are fully paid and nonassessable, and were not issued in violation of any preemptive or similar
rights or applicable Law.
(b) From
the Capitalization Date to the execution of this Agreement, the Company has not issued any Shares, except pursuant to the exercise of
Options outstanding as of the Capitalization Date, in accordance with their terms, and, since the Capitalization Date, the Company has
not granted any Options or restricted stock units or Cash Awards.
(c) Except
as set forth in Section 4.2(a), as of the date of this Agreement, there are no outstanding (i) shares of capital stock
or equity securities or obligations of the Company or its Subsidiaries convertible into or exchangeable for shares of capital stock or
other equity or voting securities of the Company or its Subsidiaries or (ii) rights, options, warrants, conversion rights, stock
appreciation rights, redemption rights, repurchase rights, agreements, arrangements, calls, rights of first refusal, rights of first
offer, “phantom” stock rights, equity-based compensation, contingent value rights, subscriptions, commitments or rights of
any kind that obligate the Company or any of its Subsidiaries to issue, transfer or sell any shares of capital stock or other equity
or voting securities of the Company or any of its Subsidiaries or any securities or obligations convertible into or exchangeable or exercisable
for, or giving any Person a right to subscribe for or acquire from the Company or any of its Subsidiaries any equity or voting securities
of the Company or any of its Subsidiaries, including pursuant to any offer letter. The Company does not have outstanding any bonds, debentures,
notes or other obligations that grant the holders thereof the right to vote (or convertible into or exercisable for securities having
the right to vote) with the stockholders of the Company on any matter. Each Option and Cash Award was granted in accordance with the
terms of the applicable Company Stock Plan and all other applicable Law.
(d) Section 4.2(d) of
the Company Disclosure Letter sets forth, as of the date of this Agreement, a complete and accurate list identifying all of the outstanding
Options and Cash Awards granted under the applicable Company Stock Plan or otherwise, including the holder, the type of award, the number
of Common Shares subject thereto or the cash value thereof (assuming target achievement of applicable performance goals for the Cash
Awards, as applicable), the date of grant, vesting schedule, and in the case of any Option, the exercise price and expiration date.
(e) Section 4.2(e) of
the Company Disclosure Letter sets forth, as of the date of this Agreement, a complete and accurate list identifying (i) each of
the Company’s Subsidiaries and the ownership interest of the Company and its Subsidiaries in each such Subsidiary and (ii) any
other Person (other than Parent and its Subsidiaries) in which the Company or any of its Subsidiaries holds capital stock or other equity
interest (other than securities held by any employee benefit plan of the Company or any of its Subsidiaries or any trustee, agent or
other fiduciary in such capacity under any such employee benefit plan). No Subsidiary of the Company owns any Shares. Each of the outstanding
shares of capital stock or other securities of each of the Company’s Subsidiaries has been duly authorized and validly issued and
is fully paid and nonassessable and is owned by the Company or by a direct or indirect wholly owned Subsidiary of the Company, free and
clear of any lien, charge, pledge, security interest, claim or other encumbrance (each, a “Lien”), except for Permitted
Liens and Liens arising under applicable securities Laws.
4.3 Corporate
Authority and Approval; Financial Advisor Opinion.
(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 to consummate the Merger, subject only to (i) the adoption of this Agreement by
the affirmative vote of holders of a majority of the aggregate voting power of the outstanding Common Shares entitled to vote thereon,
voting together as a single class, and (ii) the adoption of the Company Charter Amendment by (A) the affirmative vote of holders
of a majority of the aggregate voting power of the outstanding Common Shares entitled to vote thereon, voting together as a single class,
and (B) written consent or affirmative vote of the majority of the holders of the then outstanding Series A Preferred Shares
entitled to vote thereon, given in writing or by vote at a meeting, consenting or voting (as the case may be), separately as a class
(clauses (i) and (ii) together, the “Company Requisite Approval”). This Agreement has been
duly executed and delivered by the Company and, assuming due execution and delivery by Parent and Merger Sub, constitutes a 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 received the opinion of Citigroup Global Markets Inc. (“Citi”), financial advisor to the Company,
to the effect that, as of the date of such opinion and based upon and subject to the various assumptions made, procedures followed, matters
considered and qualifications and limitations set forth therein, the Common Share Merger Consideration to be received by the holders
of Common Shares (other than Maffei and his Affiliates) pursuant to this Agreement is fair, from a financial point of view, to such holders
(it being understood and agreed that such opinion is for the benefit of the Company Board and may not be relied on by Parent or Merger
Sub for any purpose).
(c) As
of the date hereof, the Company Board, has, by resolutions duly adopted, unanimously (i) determined that this Agreement, including
the Merger, the Parent Loan Facility, the Maffei Voting Agreement and the transactions contemplated thereby, the Certares Voting Agreement
and the transactions contemplated thereby, the Certares Side Letter and the transactions contemplated thereby, and the other transactions
contemplated hereby are advisable and fair to, and in the best interests of, the Company and its stockholders, including the Disinterested
Stockholders, (ii) declared this Agreement and the transactions contemplated hereby (including the Merger) advisable, (iii) approved
this Agreement, the execution and delivery by the Company of this Agreement, the performance by the Company of its covenants and agreements
contained herein and the consummation of the Merger and the other transactions contemplated hereby upon the terms and subject to the
conditions contained herein, (iv) approved and declared advisable the Company Charter Amendment to the Restated Company Certificate
of Incorporation that amends certain provisions of the Certificate of Designations, (v) directed that the adoption of this Agreement
and the Company Charter Amendment be submitted to a vote of the stockholders of the Company entitled to vote thereon at the Company Stockholders
Meeting, and (vi) subject to Section 6.2, resolved to recommend that the stockholders of the Company entitled to vote
thereon approve the adoption of this Agreement and the Company Charter Amendment in accordance with the DGCL (the “Company Recommendation”).
4.4 Governmental
Filings; No Violations.
(a) Other
than (i) the filing of the Certificate of Merger pursuant to Section 1.3, (ii) the filing of the Certificate of
Amendment (as defined below) pursuant to Section 6.19 and (iii) the necessary filings, notices, reports, consents, registrations,
approvals, permits, expirations of waiting periods, clearances or authorizations (any of the foregoing being a “Consent”)
required under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the “HSR Act”) or any applicable
foreign competition Laws (the “Foreign Competition Laws”) in connection with the Merger, the Securities Exchange Act
of 1934, as amended (the “Exchange Act”), and the Securities Act of 1933, as amended (the “Securities Act”),
no filings, notices and/or reports are required to be made by the Company or its Subsidiaries with, nor are any Consents required to
be obtained by the Company or its Subsidiaries from, any domestic, foreign or transnational governmental, competition or regulatory authority,
court, arbitral tribunal, agency, commission, body or other legislative, executive or judicial governmental entity or self-regulatory
agency (each, a “Governmental Entity”) in connection with the execution, delivery and performance of this Agreement
by the Company and/or the consummation by the Company of the Merger and the other transactions contemplated hereby, except, in each case,
those that the failure to make or obtain would not, individually or in the aggregate, reasonably be expected to have a Company Material
Adverse Effect or prevent, materially delay or materially impair the ability of the Company to consummate the Merger.
(b) The
execution, delivery and performance of this Agreement by the Company does not, and the consummation by the Company of the Merger and
the other transactions contemplated hereby will not, (i) constitute or result in, subject in the case of the consummation of the
Merger and adoption and effectiveness of the Company Charter Amendment, to obtaining the Company Requisite Approval, a breach or violation
of, or contravention or a default under, the Restated Company Certificate of Incorporation, the Certificate of Designations, or the Amended
and Restated Bylaws of the Company, effective August 11, 2015 (the “A&R Company Bylaws”), (ii) constitute
or result in, with or without the lapse of time or the giving of notice or both, a breach or violation of, a default or termination or
modification (or right of termination or modification) under, payment of additional fees under, the creation or acceleration of any obligations
under, or the creation of a Lien on any of the assets of the Company or any of its Subsidiaries pursuant to, any agreement, lease, license,
contract, consent, settlement, note, mortgage, indenture, arrangement, understanding or other obligation (each, a “Contract”
and, collectively, the “Contracts”) binding upon the Company or any of its Subsidiaries or (iii) assuming (solely
with respect to performance of this Agreement and consummation of the Merger and the other transactions contemplated hereby, including
the adoption of the Company Charter Amendment) the Consents referred to in Section 4.4(a) are made or obtained and receipt
of the Company Requisite Approval, conflict with or violate any Law or License to which the Company or any of its Subsidiaries is subject,
except, in the case of clauses (ii) and (iii) above, for any such breach, violation, default, termination, modification,
payment, requirement, creation, acceleration, Lien, conflict or violation that would not, individually or in the aggregate, reasonably
be expected to have a Company Material Adverse Effect.
4.5 Company
Reports; Financial Statements.
(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 or to the U.S. Securities and Exchange Commission (the “SEC”) pursuant to the
Exchange Act or the Securities Act since December 31, 2022 (the “Applicable Date”) (the forms, statements, reports
and documents filed with or furnished to the SEC since the Applicable Date and those filed with or furnished to the SEC subsequent to
the date of this Agreement, in each case as amended, the “Company Reports”). Each of the Company Reports, at the time
of its filing or being furnished, complied as to form or, if not yet filed or furnished, will comply as to form, in all material respects
with the applicable requirements of the Securities Act, the Exchange Act and the Sarbanes-Oxley Act of 2002, and any rules and regulations
promulgated thereunder applicable to the Company Reports. As of their respective filing dates (or, if amended or superseded by a filing
prior to the date of this Agreement, on the date of such amended or superseded filing), the Company Reports did not, and any Company
Reports filed with or furnished to the SEC subsequent to the date of this Agreement will not, contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary to make the statements made therein, in light of the
circumstances in which they were made, not misleading. Notwithstanding the foregoing, the Company makes no representation or warranty
with respect to information supplied by or on behalf of the Company or its Subsidiaries for inclusion or incorporation by reference in
any of the Company Reports.
(b) The
Company is in compliance in all material respects with the applicable listing and corporate governance rules and regulations of
the OTC.
(c) The
Company maintains disclosure controls and procedures (as defined in Rule 13a-15(e) or 15d-15(e) under the Exchange Act)
that are sufficient to provide reasonable assurance that material information required to be disclosed by the Company in its filings
with the SEC under the Exchange Act is recorded and reported on a timely basis to the individuals responsible for the preparation of
the Company’s filings with the SEC under the Exchange Act. The Company maintains internal controls over financial reporting (as
defined in Rule 13a-15(f) or 15d-15(f), as applicable, under the Exchange Act) sufficient to provide reasonable assurance regarding
the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with GAAP. Since
the Applicable Date, to the Knowledge of the Company, the Company has not received any notification of (i) any “significant
deficiencies” or “material weaknesses” in the design or operation of its internal controls over financial reporting,
(ii) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s
internal control over financial reporting or (iii) any complaints regarding a material violation of accounting procedures, internal
accounting controls or auditing matters relating to the period since the Applicable Date, including from employees of the Company or
its Subsidiaries regarding questionable accounting, auditing or legal compliance matters, in each case that would be reasonably expected
to adversely affect the Company’s ability to record, process, summarize and report financial information. Each of the consolidated
balance sheets included in or incorporated by reference into the Company Reports (including the related notes and schedules) fairly presents,
in each case, in all material respects, the consolidated financial position of the Company and its Subsidiaries, as of the date of such
balance sheet, and each of the consolidated statements of income, cash flows and changes in stockholders’ equity (deficit) included
in or incorporated by reference into the Company Reports (including any related notes and schedules) fairly presents, in each case, in
all material respects, the results of operations, retained earnings (loss) and changes in financial position, as the case may be, of
the Company and its Subsidiaries for the periods set forth therein (subject, in the case of unaudited statements, to notes and normal
year-end audit adjustments that are not or will not be material in amount or effect), in each case in accordance with GAAP consistently
applied during the periods involved, except as may be noted therein or in the notes thereto.
4.6 Absence
of Certain Changes. Since January 1, 2024 and through the date of this Agreement, there has not been any change, event, occurrence,
condition, effect, circumstance or development which has had or would, individually or in the aggregate, reasonably be expected to have,
a Company Material Adverse Effect. Since January 1, 2024 and through the date of this Agreement, other than with respect to the
negotiation and execution of this Agreement and the consummation of the transactions contemplated hereby, the Company and its Subsidiaries
have conducted their respective businesses in the ordinary course of such businesses in all material respects.
4.7 Litigation.
As of the date of this Agreement, there are no civil, criminal, or administrative actions, suits, demands, arbitrations, litigations,
mediations, claims, hearings, examinations, inquiries, notices of violation, investigations, proceedings, demand letters, settlements,
or enforcement actions (“Proceedings”), pending or, to the Knowledge of the Company, threatened in writing by or against
the Company or any of its Subsidiaries, except for those that would not, individually or in the aggregate, reasonably be expected to
have a Company Material Adverse Effect. Neither the Company nor any of its Subsidiaries, or their respective directors, officers or employees,
in their capacities as such is a party to or subject to the provisions of any Order that would, individually or in the aggregate, reasonably
be expected to have a Company Material Adverse Effect or that would prevent, materially delay or materially impair the ability of the
Company to consummate the Merger.
4.8 No
Undisclosed Liabilities. There are no obligations or liabilities of the Company or any of its Subsidiaries, whether or not accrued,
whether known or unknown, on-or off-balance sheet, contingent, absolute or otherwise other than (a) liabilities or obligations disclosed,
reflected, reserved against or otherwise provided for in the consolidated balance sheet of the Company as of September 30, 2024
and the notes thereto set forth in the Company’s quarterly report on Form 10-Q for the fiscal quarter ended September 30,
2024 (the “Balance Sheet”), (b) liabilities or obligations incurred in the ordinary course of business (none
of which is a liability for breach of contract, breach of warranty, tort, infringement, violation of Law, or that relates to any cause
of action, claim or lawsuit) since September 30, 2024, (c) liabilities or obligations arising out of this Agreement or the
transactions contemplated hereby, (d) liabilities or obligations that would not be required to be reflected or reserved against
in the balance sheet of the Company under GAAP or (e) liabilities or obligations that have not had and would not, individually or
in the aggregate, reasonably be expected to have a Company Material Adverse Effect; provided, that in no event shall any obligation
or liability of Parent or any of its Subsidiaries be deemed a liability or obligation of the Company or any of its Subsidiaries for purposes
of this Section 4.8.
4.9 Takeover
Statutes. The Company has taken all action required to be taken by it in order to exempt this Agreement, the Merger and the other
transactions contemplated by this Agreement from (and this Agreement, the Merger and the other transactions contemplated by this Agreement)
the requirements or restrictions of any “fair price”, “moratorium”, “control share acquisition” or
other similar anti-takeover statute or regulation, including Section 203 of the DGCL (each, a “Takeover Statute”)
or any anti-takeover provision in the Restated Company Certificate of Incorporation or A&R Company Bylaws.
4.10 Brokers
and Finders. Except with respect to Citi, the Company has not employed any broker or finder or incurred any liability for any brokerage
fees, commissions or finders’ fees in connection with the Merger or the other transactions contemplated in this Agreement.
4.11 Ownership
of Parent Common Stock. As of the date of this Agreement, the Company and/or its Subsidiaries directly or indirectly own 16,445,894
shares of common stock, par value $0.001, of Parent (“Parent Common Stock”) and 12,799,999 shares of Class B
common stock, par value $0.001 of Parent (“Parent Class B Common Stock”) free and clear of all Liens except for
Permitted Liens and Liens arising under applicable securities Laws; provided that, for the avoidance of doubt, this representation
is not being made with respect to any shares of Parent Common Stock or Parent Class B Common Stock owned by the executive officers
and/or directors of the Company in their respective individual capacities or through entities for estate planning purposes.
4.12 Employee
Benefits.
(a) Each
material Company Plan as of the date of this Agreement is listed in Section 4.12(a) of the Company Disclosure Letter.
True and complete copies of each of the material Company Plans and all material amendments thereto are publicly available on EDGAR or
have been provided or made available to Parent on or prior to the date of this Agreement.
(b) All
Company Plans have been established, maintained, funded operated and administrated in all material respects in accordance with their
terms and are in compliance with applicable Laws (including, if applicable, ERISA and the Code), except as would not, individually or
in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Neither the Company nor, to the Knowledge of the
Company, any other Person is in material breach of, or material default under, any Company Plan.
(c) Each
form of award agreement (with exhibits) evidencing outstanding Options and Cash Awards is publicly available on EDGAR or has been made
available to Parent, and any agreements that deviate in any material way from such forms have been made available to Parent.
(d) Neither
the Company nor any of its Subsidiaries or any entity which is considered a single employer with the Company under Section 4001
of ERISA or Section 414 of the Code, contributes to or is obligated to contribute to, or otherwise has had any current or contingent
liability or obligation under or with respect to, in each case, in the last six (6) years, an “employee pension benefit plan”
(as defined in Section 3(2) of ERISA) subject to Title IV of ERISA, Section 412 of the Code or Section 302 of ERISA
(including any “multiemployer plan” within the meaning of Section (3)(37) of ERISA).
(e) All
contributions required to be made by the Company or its Subsidiaries under each Company Plan, as of the date of this Agreement, have
been timely made and all obligations in respect of each Company Plan have been properly accrued and reflected in the most recent consolidated
balance sheet filed or incorporated by reference in the Company Reports prior to the date of this Agreement.
(f) As
of the date of this Agreement, there are no material Proceedings or litigation pending or, to the Knowledge of the Company, threatened
in writing relating to the Company Plans.
(g) Except
to the extent otherwise provided in this Agreement, neither the execution and delivery of this Agreement nor the consummation of the
transactions contemplated hereby, to the extent that such transactions are related to the Merger, would, either alone or in combination
with any other event, (i) result in any material payment or benefit becoming due to any current or former employee or other service
provider of the Company or its Subsidiaries, (ii) materially increase any benefits under any Company Plan, (iii) result in
the acceleration of the time of payment, vesting or funding of any such benefits, (iv) require a contribution or payment by the
Company or its Subsidiaries to or under any Company Plan, or (v) result in any payments or benefits that, individually or in combination
with any other payment or benefit, would reasonably be expected to constitute an “excess parachute payment” as defined in
Section 280G of the Code or in the imposition of an excise Tax under Section 4999 of the Code. None of the Company nor any
of its Subsidiaries has an obligation to gross up, reimburse or indemnify any Person for any Tax incurred pursuant to Section 409A
or 4999 of the Code.
4.13 Compliance
with Laws, Licenses.
(a) The
businesses of each of the Company and its Subsidiaries since the Applicable Date have not been, and are not being, conducted in violation
of any applicable Law, except for such violations that would not, individually or in the aggregate, reasonably be expected to have a
Company Material Adverse Effect. To the Knowledge of the Company, no investigation or review by any Governmental Entity with respect
to the Company or any of its Subsidiaries is pending or, as of the date of this Agreement, threatened in writing, except for such investigations
or reviews the outcome of which would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse
Effect. Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, the
Company and its Subsidiaries possess each permit, license, certification, approval, registration, consent, authorization, franchise,
concession, variance, exemption and Order issued or granted by a Governmental Entity (each, a “License” and collectively,
the “Licenses”) necessary to conduct their respective businesses as currently conducted. Notwithstanding the foregoing,
this Section 4.13 shall not apply with respect to compliance with Tax Laws, which shall be covered exclusively by Section 4.15.
(b) The
Company, its Subsidiaries and, to the Knowledge of the Company, their respective officers, directors and employees are in compliance
in all material respects with and since the Applicable Date have complied in all material respects with: (i) the provisions of the
U.S. Foreign Corrupt Practices Act of 1977, as amended (15 U.S.C. § 78dd-1, et seq.) (“FCPA”) applicable
to the Company, its Subsidiaries and such officers, directors and employees and (ii) the provisions of all applicable anti-bribery
and anti-corruption Laws of each jurisdiction in which the Company and its Subsidiaries operate. Since the Applicable Date, to the Knowledge
of the Company, the Company, its Subsidiaries and their respective officers, directors and employees have not paid, offered or promised
to pay, or authorized or ratified the payment, directly or to the Knowledge of the Company indirectly, of any monies or anything of value
(including any gift, bribe, rebate, payoff or kickback) to any national, provincial, municipal or other Governmental Entity or government
official or any political party or candidate for political office for the purpose of corruptly influencing any act or decision of such
official to obtain or retain business, to corruptly direct business to any person, to improperly obtain or retain favorable treatment
or to secure any other improper benefit or advantage, in each case in violation in any material respect of the FCPA or any Laws described
in clause (ii).
(c) The
Company and its Subsidiaries have instituted and maintain policies and procedures reasonably designed to promote compliance with the
FCPA and other applicable anti-bribery and anti-corruption Laws in each jurisdiction in which the Company and its Subsidiaries operate.
(d) Neither
the Company nor any of its Subsidiaries is, nor, to the Knowledge of the Company, any director, manager or employee of the Company or
any of its Subsidiaries (in his or her capacity as a director, manager or employee of the Company or any of its Subsidiaries), is or
and since the Applicable Date, has been, subject to any actual, pending, or, to the Knowledge of the Company, threatened Proceedings,
or made any voluntary disclosures to any Governmental Entity, involving the Company or any of its Subsidiaries relating to the FCPA or
any other applicable anti-bribery and anti-corruption Laws.
4.14 Material
Contracts. Section 4.14 of the Company Disclosure Letter sets forth a list as of the date of this Agreement of each Contract
to which either the Company or any of its Subsidiaries is a party or bound (other than (i) each Contract solely among the Company
and its wholly owned Subsidiaries and (ii) the Company Plans) that:
(a) requires
the Company or its Subsidiaries to deal exclusively with any Person or group of related Persons, which Contract is material to the Company
and its Subsidiaries, taken as a whole (other than any licenses or other Contracts entered into in the ordinary course);
(b) is
material to the formation, creation, operation, management or control of any partnership or joint venture, the book value of the Company’s
investment in which exceeds $50,000;
(c) is
required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the
Securities Act, but that has not yet been so filed;
(d) contains
a put, call or similar right pursuant to which the Company or any of its Subsidiaries would be required to purchase or sell, as applicable,
any equity interests of any Person (other than the Company or any of its wholly owned Subsidiaries), other than as would not be material
in type or amount to the Company and its Subsidiaries, taken as a whole;
(e) was
entered into with Affiliates of the Company or any of its Subsidiaries (other than the Company and its Subsidiaries) that is not a Company
Plan or that was entered into other than on arms’-length terms;
(f) requires
the Company or any of its Subsidiaries, directly or indirectly, to make any advance, loan, extension of credit, service penalty or capital
contribution to, or other investment in, any Person (other than the Company or any of its wholly owned Subsidiaries) in excess of $25,000
individually or $50,000 in the aggregate;
(g) constitutes
any settlement agreement or other resolution of any actual or threatened Proceeding pursuant to which the Company or any of its Subsidiaries
has outstanding payment obligations in excess of $50,000;
(h) contains
(i) any grant by any Person to the Company of any license, sublicense, right, consent, or covenant not to assert, under or with
respect to any Intellectual Property of any Person, or (ii) any grant to any Person by the Company of any license, sublicense, right,
consent, or covenant not to assert, under or with respect to any Intellectual Property (each such Contract, an “IP License”),
other than, in the case of (i), licenses for off-the-shelf software commercially available for a one-time or annual fee (whichever is
higher) of no more than $50,000, and in the case of (ii), non-exclusive licenses of Intellectual Property in the ordinary course of business
that do not permit further resale or distribution;
(i) is
a Contract not of a type (disregarding any dollar thresholds, materiality or other qualifiers, restrictions or other limitations applied
to such Contract type) described in the foregoing clauses (a) through (h) that has or would reasonably be expected
to, either pursuant to its own terms or the terms of any related Contracts, involve payments or receipts in excess of $50,000 in any
year (such Contracts required to be listed pursuant to clauses (a) – (h) above and this clause (i), the
“Material Contracts”); or
(j) is
a Liberty Media Contract.
Each of the Material Contracts is valid and binding
on the Company or its Subsidiaries, as the case may be, and, to the Knowledge of the Company, each other party thereto, and is in full
force and effect, except for such failures to be valid and binding or to be in full force and effect as would not, individually or in
the aggregate, reasonably be expected to have a Company Material Adverse Effect. Neither the Company nor any of its Subsidiaries nor,
to the Knowledge of the Company, any other party is in breach of or in default under any Material Contract, and, to the Knowledge of
the Company, no 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 any of its Subsidiaries, in each case, except for such breaches and defaults as would not, individually or in the aggregate,
reasonably be expected to have a Company Material Adverse Effect.
4.15 Taxes.
Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect:
(a) the
Company and each of its Subsidiaries (i) have timely filed (taking into account all applicable extensions) all Tax Returns required
to be filed by any of them and all such filed Tax Returns are complete and accurate in all respects and (ii) have paid all Taxes
due and owing whether or not shown as due on such Tax Returns;
(b) there
are no pending, ongoing or (to the Knowledge of the Company) threatened Proceedings by any Governmental Entity with respect to Taxes
of or with respect to the Company or any of its Subsidiaries; no deficiencies for any Taxes have been claimed, proposed, assessed or
threatened or asserted in writing against the Company or any of its Subsidiaries and neither the Company nor any of its Subsidiaries
has received written notice of any audit, examination, investigation or other Proceedings in respect of Taxes of the Company or any of
its Subsidiaries that has not been fully resolved;
(c) all
Taxes that the Company or any of its Subsidiaries are or were required by Law to withhold or collect have been duly and timely withhold
or collected, and have been duly and timely paid to the proper Governmental Entity or other proper Person or properly set aside in accounts
for this purpose;
(d) there
are no Liens for Taxes upon any property or assets of the Company or any of its Subsidiaries, except for Permitted Liens;
(e) neither
the Company nor any of its Subsidiaries has any liability under any Tax allocation, Tax sharing or similar contract or arrangement that
obligates the Company or any of its Subsidiaries to make any payment computed by reference to the Taxes, Taxable income or Taxable losses
of any other Person (other than customary Tax indemnifications contained in credit or other commercial agreements the primary purpose
of which agreements does not relate to Taxes, and any contract or arrangement that is a commercial or employment agreement, the principal
purpose of which does not relate to Taxes, or any such contract or arrangement exclusively between or among the Company and/or its Subsidiaries);
(f) neither
the Company nor any of its Subsidiaries will be required to include any material item of income in, or exclude any material item of deduction
from, taxable income for any taxable period (or portion thereof) ending after the Effective Time as a result of (i) any installment
sale or open transaction disposition made prior to the Effective Time, (ii) any prepaid amount received on or prior to the Effective
Time, (iii) Section 481(a) of the Code (or an analogous provision of state, local, or foreign Law) by reason of a change
in accounting method made prior to the Effective Time or (iv) “closing agreement” as described in Section 7121
of the Code (or any corresponding or similar provision of state, local or non-U.S. Law) executed prior to the Closing;
(g) (i) neither
the Company nor any of its Subsidiaries has been a member of a consolidated, combined or unitary Tax group (other than (A) a group
the common parent of which was the Company or any Subsidiary of the Company or (B) a group the common parent of which was Qurate
Retail, Inc. or any Subsidiary of Qurate Retail, Inc. or any of their respective predecessors), and (ii) neither the Company
nor any of its Subsidiaries have any liability for Taxes of any other Person (other than Taxes of the Company or any of its Subsidiaries)
in accordance with Treasury Regulation Section 1.1502-6 (or any similar provision of foreign, state or local Law), as a transferee
or successor, or by Contract (other than customary commercial Contracts entered into in the ordinary course of business and the principal
subject matter of which is not Taxes);
(h) neither
the Company nor any of its Subsidiaries has participated in or been a party to a transaction that, as of the date of this Agreement,
constitutes a “listed transaction” within the meaning of Section 6707A(c)(2) of the Code or Treasury Regulation
Section 1.6011-4(b)(2); and
(i) as
of the date of this Agreement, neither the Company nor any of its Subsidiaries is aware of the existence of any fact, or has taken or
agreed to take any action, including, for the avoidance of doubt, any action expressly contemplated to be taken pursuant to this Agreement
or any of the Transaction Documents, that could reasonably be expected to prevent or impede the Merger taken together with the ParentSub
LLC Merger from properly being treated in accordance with the Intended Tax Treatment for U.S. federal income tax purposes.
4.16 Intellectual
Property.
(a) Section 4.16(a) of
the Company Disclosure Letter sets forth a complete and accurate list of (i) all issued, registered or applied for Intellectual
Property included in the Company Owned IP (“Registered IP”) and (ii) material unregistered Marks owned or purported
to be owned by the Company; including for each item of Registered IP, the record owner, the jurisdiction in which such item has been
issued, registered, or filed, and the issuance, registration, or application number and date. All Registered IP is subsisting, and to
the Knowledge of the Company, valid and enforceable. All renewal, maintenance and other necessary filings and fees due and payable to
any Governmental Entity or Internet domain name registrar to maintain all material Registered IP in full force and effect have been timely
submitted or fully paid.
(b) The
Company (i) is the sole and exclusive owner of all right, title and interest in and to all material Company Owned IP and (ii) has
valid and enforceable rights, pursuant to a valid written IP License to use, sell and license, as the case may be, all Company Licensed
IP as the same is used, sold and licensed in the business as presently conducted and proposed to be conducted, in each case of (i) and
(ii), free and clear of all Liens (except Permitted Liens). Except as would not, individually or in the aggregate, reasonably be expected
to have a Company Material Adverse Effect, the Company Owned IP and such Company Licensed IP (when used within the scope of the applicable
IP License), collectively constitute all Intellectual Property used in, necessary and sufficient for, the conduct and operation of the
business as currently conducted and proposed to be conducted.
(c) Except
as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, the Company and the
conduct and operation of the Company’s business, as presently conducted and as currently proposed to be conducted, has not within
the past six (6) years infringed, misappropriated, diluted or otherwise violated, and do not currently infringe, misappropriate,
dilute or otherwise violate any Intellectual Property of any Person. The Company is not the subject of any pending, or to the Knowledge
of the Company, threatened Proceedings alleging or involving any of the foregoing, or challenging the ownership, use, validity or enforceability
of any Company Owned IP or Company Licensed IP, except for Proceedings that would not, individually or in the aggregate, reasonably be
expected to have a Company Material Adverse Effect. In the past six (6) years, the Company has not received written or, to the Knowledge
of the Company, unwritten notice of any such threatened claim or challenge, and, to the Knowledge of the Company, there are no facts
or circumstances that would form the basis for any such claim or challenge, except for those that would not, individually or in the aggregate,
reasonably be expected to have a Company Material Adverse Effect.
(d) No
Person has infringed, misappropriated, diluted or otherwise violated, or is currently infringing, misappropriating, diluting,
or otherwise violating any Company Intellectual Property in a manner that has had or would, individually or in the aggregate, reasonably
be expected to have a Company Material Adverse Effect. No such claims have been made in writing against any Person by the Company.
(e) The
Company has taken adequate measures, at least consistent with those in the industry in which the business operates, to protect the confidentiality
and value of all material Trade Secrets included in the Company Intellectual Property. Except as would not, individually or in the aggregate,
reasonably be expected to have a Company Material Adverse Effect, the Company has not disclosed or authorized or consented to the disclosure
of any Trade Secret included in the Company Intellectual Property that is material to the Company’s business to any Person (including
any former or current employee, contractor, or consultant of the Company) other than pursuant to a valid and enforceable written agreement
adequately restricting the disclosure and use of such Trade Secret; and to the Knowledge of the Company, no Person to whom a material
Trade Secret has been so disclosed is in violation of any such agreement or has otherwise misappropriated any such material Trade Secret.
(f) To
the Knowledge of the Company, no former or current founder, officer, director, employee, consultant or independent contractor of the
Company has been or is currently involved in the development of any material Intellectual Property for or on behalf of the Company.
(g) The
IT Systems (i) are adequate and sufficient (including with respect to working condition and capacity) for the operation of the business
as currently conducted, and (ii) to the Knowledge of the Company, do not contain any defect, viruses, worms, Trojan horses, bugs,
faults or other devices, errors, contaminants or effects that: (A) materially disrupt or materially adversely affect the functionality
of any IT Systems; or (B) enable any third party to access without authorization any IT Systems. There have been no failures, breakdowns,
continued substandard performance, outages or unscheduled downtime or other adverse events affecting any of the IT Systems that have
had or would, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect.
(h) Neither
the execution and delivery of this Agreement nor the consummation of the transaction contemplated hereby will result in: (i) the
loss or impairment of, or any Lien (other than a Permitted Liens) on, any Company Owned IP or the Company’s rights to any Company
Licensed IP; (ii) the release, disclosure or delivery of any source code included in the Company’s software to any Person;
(iii) the grant, assignment or transfer by the Company to any other Person (other than Parent or any of its Subsidiaries) of any
license or other right under, to or in any Company Owned IP or Company Licensed IP; (iv) the payment of any additional consideration
by the Company to, or the reduction of any payments to the Company from, any Person with respect to any Company Owned IP or Company Licensed
IP; or (v) the breach by the Company of, or creation on behalf of any Person of the right to terminate or modify any Contract to
which the Company is a party relating to any Company Owned IP or Company Licensed IP.
4.17 Data
Privacy.
(a) The
Company and, to the Knowledge of the Company, any Person acting for or on behalf of the Company is, and has at all times in the past
three (3) years been in material compliance with all Privacy Requirements. In the past three (3) years, neither the Company
nor any third party acting on its behalf has received any notice of any claims, charges, investigations or regulatory inquiries related
to or alleging a material violation of any Privacy Requirements.
(b) The
Company has (i) implemented and at all times maintained since the Applicable Date commercially reasonable security procedures and
practices, including technical and organizational safeguards designed to protect the IT Systems and all Personal Information and other
confidential data in its possession or under its control against loss, theft, misuse or unauthorized access, use, modification, alteration,
destruction or disclosure and (ii) taken commercially reasonable steps to ensure, including by making contractual commitments to
the extent required by applicable Privacy Laws, that any Person with access to any Personal Information collected by or on behalf of
the Company has implemented and maintains the same.
(c) Since
the Applicable Date, there have been no material security breaches, unauthorized access to, use or disclosure of or other material adverse
events or incidents related to any Personal Information Processed by or, to the Knowledge of the Company, on behalf of the Company. In
the past three (3) years, the Company has not provided or been legally required to provide any notice to any Person in connection
with an unauthorized disclosure of Personal Information.
(d) The
Company is not subject to any contractual requirement or other legal obligation that, following the Closing, would prohibit in any material
respect the Company from Processing any Personal Information in the manner in which the Company Processed such Personal Information prior
to the Closing. The transfer of Personal Information in connection with the transactions contemplated by this Agreement will not violate
in any material respect any Privacy Requirements as they currently exist or as they existed at any time since the Applicable Date during
which any of the applicable to the Personal Information in the possession or control of the Company was collected or obtained.
4.18 Insurance.
The insurance policies held by the Company provide adequate coverage for all normal risks incident to the business of the Company and
its Subsidiaries and their respective properties and assets, except for any such failures to maintain such policies that would not, individually
or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. Each such policy is in full force and effect and
all premiums due with respect to all such policies have been paid, with such exceptions that would not, individually or in the aggregate,
reasonably be expected to have a Company Material Adverse Effect.
4.19 Real
Property. The Company does not own any fee interest in land, or buildings, structures or any other improvements (excluding any such
improvements consisting of fixtures) located on land (collectively, “Real Property”).
4.20 Regulation
U.
(a) As
of the date hereof, the Company has executed and delivered to Parent a Statement of Purpose for an Extension of Credit Secured by Margin
Stock on Form FR G-3 (“Form FR G-3”) and all information provided by the Company in such Form FR G-3
is true and correct in all material respects.
(b) The
Company is not, and after giving effect to application of the proceeds, if any, advanced pursuant to the Parent Loan Facility will not
be, required to register as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended.
(c) The
Company (i) is not an obligor with respect to any Carrying Credit and (ii) has not extended any Carrying Credit to any other
person.
4.21 Supplemental
Indenture. As of the date hereof, the Company has entered into a supplemental indenture to the Exchangeable Senior Debentures Indenture
to irrevocably elect to settle any repurchase or exchange obligations in cash, and such supplemental indenture shall be effective no
later than the date hereof.
4.22 No
Other Representations and Warranties. Except for the representations and warranties of the Company contained in this ARTICLE IV
or in any certificate or agreement delivered pursuant to this Agreement, the Company is not making and has not made, and no other
Person (including Certares) is making or has made on behalf of the Company, any express or implied representation or warranty in connection
with this Agreement or the transactions contemplated hereby; and neither the Company nor any Person (including Certares) on behalf of
the Company is making any express or implied representation or warranty with respect to the Company or any of its Subsidiaries or their
respective businesses or with respect to any other information made available to Parent or Merger Sub in connection with the transactions
contemplated by this Agreement. Except for the representations and warranties expressly set forth in this ARTICLE IV or in
any certificate or agreement delivered pursuant to this Agreement, the Company hereby disclaims all liability and responsibility for
all projections, forecasts, estimates, financial statements, financial information, appraisals, statements, promises, advice, data or
information made, communicated or furnished (orally or in writing, including electronically) to Parent, any of Parent’s Affiliates
or any Representatives of Parent or any of Parent’s Affiliates, including omissions therefrom. Without limiting the foregoing,
the Company makes no representation or warranty of any kind whatsoever, express or implied, written or oral, at law or in equity, to
Parent or any of its Affiliates or any Representatives of Parent or any of its Affiliates regarding the success, profitability or value
of the Company. The Company hereby acknowledges and agrees with the statements set forth in Section 5.14.
ARTICLE V
Representations and warranties of parent and merger sub
Except (a) as set forth
in the corresponding sections or subsections of the disclosure letter delivered to the Company by Parent at the time of entering into
this Agreement (the “Parent Disclosure Letter”), it being understood and agreed that any disclosure set forth in one
section or subsection of the Parent Disclosure Letter shall be deemed to be disclosed with respect to, and shall be deemed to apply to
and qualify, the section or subsection of this Agreement to which it corresponds in number and each other section or subsection of this
Agreement to the extent the qualifying nature of such disclosure with respect to such other section or subsection is reasonably apparent
on the face of such disclosure or (b) as disclosed in any Parent Reports filed with the SEC on or after the Applicable Date and
prior to the second Business Day prior to the date of this Agreement (excluding any disclosures (other than statements of historical
fact) contained in any “Forward-Looking Statements” and “Risk Factors” sections of such Parent Reports and any
other disclosures included or referenced in any such Parent Reports that are cautionary, predictive or forward looking in nature), Parent
and Merger Sub hereby represent and warrant to the Company as follows:
5.1 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. Each of Parent and Merger Sub has all requisite corporate power and authority
to own, lease and operate its properties and assets and to carry on its business as presently conducted, except where the failure to
have such power or authority would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect.
Except as would not, individually or in the aggregate, reasonably be expected to have a Parent Material Adverse Effect, each of the Parent’s
Subsidiaries is a legal entity duly organized, validly existing and (where such concept is recognized) 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 Parent and Merger Sub is duly qualified or licensed,
and has all necessary governmental approvals, to do business and (where such concept is recognized) is in good standing in each jurisdiction
in which the property owned, leased or operated by it or the nature of the business conducted by it makes such approvals, qualification
or licensing necessary, except where the failure to be so duly approved, qualified or licensed and in good standing would not, individually
or in the aggregate, reasonably be expected to have a Parent Material Adverse Effect. Parent has made available to the Company, prior
to the date of this Agreement, a complete and correct copy of the organizational documents of Parent, Merger Sub and ParentSub LLC, in
each case, in effect as of the date of this Agreement.
5.2 Ownership
of Merger Sub. The authorized capital stock of Merger Sub consists of 1,000 shares of common stock, par value $0.01 per share, all
of which are validly issued and outstanding. All of the issued and outstanding capital stock of Merger Sub is, and at the Effective Time
will be, owned directly by ParentSub LLC. Merger Sub was formed solely for purposes of engaging in the transactions contemplated by this
Agreement and has not conducted any business prior to the date of this Agreement and does not have any assets, liabilities or obligations
of any nature other than those incident to its formation, and prior to the Effective Time will not have engaged in any business and will
not have any assets, liabilities or obligations other than those arising pursuant to this Agreement and the transactions contemplated
hereby, including the Merger. The authorized equity interests of ParentSub LLC consist solely of limited liability company interests,
all of which are held directly by Parent. All of the outstanding limited liability company interests of ParentSub LLC have been duly
authorized and validly issued.
5.3 Corporate
Authority; Approval. Each of Parent and Merger Sub has all requisite corporate power and authority and each has taken all corporate
action necessary in order to execute, deliver and, subject to obtaining the approval contemplated by Section 6.14 of this
Agreement in the case of Merger Sub, perform its obligations under this Agreement and to consummate the Merger. This Agreement has been
duly executed and delivered by Parent and Merger Sub and constitutes a 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. As of the date hereof,
the board of directors of Merger Sub, by resolutions duly adopted, has unanimously (a) approved and declared advisable this Agreement,
the Merger and the consummation of the other transactions contemplated hereby, upon the terms and conditions set forth in this Agreement,
(b) determined that the Merger is fair to, and in the best interests of Merger Sub and its sole stockholder, (c) resolved to
recommend to the sole stockholder of Merger Sub the adoption of this Agreement and (d) directed that this Agreement be submitted
to the sole stockholder of Merger Sub for its adoption and the approval of the Merger and the transactions contemplated hereby. The adoption
of this Agreement by ParentSub LLC as the sole stockholder of Merger Sub pursuant to Section 6.14 is the only vote or approval
required in order for Parent and Merger Sub to execute and deliver this Agreement, to perform their obligations under this Agreement,
or to consummate the transactions contemplated hereby, including the Merger, on the terms and subject to the conditions of this Agreement.
No approval by the stockholders of Parent is required in order for Parent to execute, deliver and perform its obligations under this
Agreement or to consummate the transactions contemplated hereby, including the Merger and the issuance of the Series A Preferred
Share Equity Merger Consideration on the terms and subject to the conditions of this Agreement.
5.4 Parent
Reports; Financial Statements.
(a) Parent
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 or to the SEC pursuant to the Exchange Act or the Securities Act since the Applicable Date (the forms,
statements, reports and documents filed with or furnished to the SEC since the Applicable Date and those filed with or furnished to the
SEC subsequent to the date of this Agreement, in each case as amended, the “Parent Reports”). Each of the Parent Reports,
at the time of its filing or being furnished, complied as to form in all material respects with the applicable requirements of the Securities
Act, the Exchange Act and the Sarbanes-Oxley Act of 2002, and any rules and regulations promulgated thereunder applicable to the
Parent Reports. As of their respective filing dates (or, if amended or superseded by a filing prior to the date of this Agreement, on
the date of such amended or superseded filing), the Parent Reports did 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. Notwithstanding the foregoing, Parent makes no representation or warranty with respect to information
supplied by or on behalf of Parent or its Subsidiaries for inclusion or incorporation by reference in any of the Parent Reports.
(b) Parent
is in compliance in all material respects with the applicable listing and corporate governance rules and regulations of NASDAQ.
(c) Parent
maintains disclosure controls and procedures (as defined in Rule 13a-15(e) or 15d-15(e) under the Exchange Act) that are
sufficient to provide reasonable assurance that material information required to be disclosed by Parent in its filings with the SEC under
the Exchange Act is recorded and reported on a timely basis to the individuals responsible for the preparation of Parent’s filings
with the SEC under the Exchange Act. Parent maintains internal controls over financial reporting (as defined in Rule 13a-15(f) or
15d-15(f), as applicable, under the Exchange Act) sufficient to provide reasonable assurance regarding the reliability of financial reporting
and the preparation of financial statements for external purposes in accordance with GAAP. Since the Applicable Date, to the Knowledge
of Parent, Parent has not received any notification of (i) any “significant deficiencies” or “material weaknesses”
in the design or operation of its internal controls over financial reporting, (ii) any fraud, whether or not material, that involves
management or other employees who have a significant role in Parent’s internal control over financial reporting or (iii) any
complaints regarding a material violation of accounting procedures, internal accounting controls or auditing matters relating to the
period since the Applicable Date, including from employees of Parent or its Subsidiaries regarding questionable accounting, auditing
or legal compliance matters, in each case that would be reasonably expected to adversely affect Parent’s ability to record, process,
summarize and report financial information. Each of the consolidated balance sheets included in or incorporated by reference into the
Parent Reports (including the related notes and schedules) fairly presents, in each case, in all material respects, the consolidated
financial position of Parent and its Subsidiaries, as of the date of such balance sheet, and each of the consolidated statements of income,
cash flows and changes in stockholders’ equity (deficit) included in or incorporated by reference into the Parent Reports (including
any related notes and schedules) fairly presents, in each case, in all material respects, the results of operations, retained earnings
(loss) and changes in financial position, as the case may be, of Parent and its Subsidiaries for the periods set forth therein (subject,
in the case of unaudited statements, to notes and normal year-end audit adjustments that are not or will not be material in amount or
effect), in each case in accordance with GAAP consistently applied during the periods involved, except as may be noted therein or in
the notes thereto.
5.5 Absence
of Certain Changes. Since January 1, 2024 and through the date of this Agreement, there has not been any change, event, occurrence,
condition, effect, circumstance or development which has had or would, individually or in the aggregate, reasonably be expected to have,
a Parent Material Adverse Effect. Since January 1, 2024 and through the date of this Agreement, other than with respect to the negotiation
and execution of this Agreement and the consummation of the transactions contemplated hereby, Parent and its Subsidiaries have conducted
their respective businesses in the ordinary course of such businesses in all material respects.
5.6 No
Undisclosed Liabilities. There are no obligations or liabilities of Parent or its Subsidiaries, whether or not accrued, whether known
or unknown, on-or off-balance sheet, contingent, absolute or otherwise other than (a) liabilities or obligations disclosed, reflected,
reserved against or otherwise provided for in the consolidated balance sheet of Parent as of September 30, 2024 and the notes thereto
set forth in Parent’s quarterly report on Form 10-Q for the fiscal quarter ended September 30, 2024 (the “Parent
Balance Sheet”), (b) liabilities or obligations incurred in the ordinary course of business (none of which is a liability
for breach of contract, breach of warranty, tort, infringement, violation of Law, or that relates to any cause of action, claim or lawsuit)
since September 30, 2024, (c) liabilities or obligations arising out of this Agreement or the transactions contemplated hereby,
(d) liabilities or obligations that would not be required to be reflected or reserved against in the Parent Balance Sheet under
GAAP or (e) liabilities or obligations that have not had and would not, individually or in the aggregate, reasonably be expected
to have a Parent Material Adverse Effect; provided, that in no event shall any obligation or liability of Parent or any of its
Subsidiaries be deemed a liability or obligation of Parent or any of its Subsidiaries for purposes of this Section 5.6.
5.7 Takeover
Statutes. Parent has taken all action required to be taken by it in order to exempt this Agreement, the Merger and the other transactions
contemplated by this Agreement from (and this Agreement, the Merger and the other transactions contemplated by this Agreement) the requirements
or restrictions of any Takeover Statute or any anti-takeover provision in the Restated Parent Certificate of Incorporation or Restated
Parent Bylaws.
5.8 Governmental
Filings; No Violations.
(a) Other
than (i) the filing of the Certificate of Merger pursuant to Section 1.3, (ii) a Registration Statement of Parent
on Form FR G-1 and any required Annual Report of Parent on Form FR G-4, in each case, with respect to the Parent Loan Facility
and (iii) the necessary Consents required under the HSR Act or any Foreign Competition Laws in connection with the Merger, the Exchange
Act and the Securities Act, no filings, notices and/or reports are required to be made by Parent or Merger Sub or their Subsidiaries
with, nor are any Consents required to be obtained by Parent or Merger Sub or their Subsidiaries from any Governmental Entity in connection
with the execution, delivery and performance of this Agreement by Parent and Merger Sub and/or the consummation by Parent and Merger
Sub of the Merger and the other transactions contemplated hereby, including the issuance of the Series A Preferred Share Equity
Merger Consideration, except, in each case, those that the failure to make or obtain would not, individually or in the aggregate, reasonably
be expected to have a Parent Material Adverse Effect.
(b) The
execution, delivery and performance of this Agreement by Parent and Merger Sub does not, and the consummation by Parent and Merger Sub
of the Merger and the other transactions contemplated hereby will not, (i) constitute or result in a breach or violation of, or
contravention or a default under, the Restated Certificate of Incorporation of Parent, dated December 20, 2011 (the “Restated
Parent Certificate of Incorporation”), the Amended and Restated Bylaws of Parent, dated December 20, 2011, as amended
on February 12, 2013 (the “Restated Parent Bylaws”) or certificate of incorporation or bylaws of Merger Sub,
(ii) constitute or result in, with or without the lapse of time or the giving of notice or both, a breach or violation of, a default
or termination or modification (or right of termination or modification) under, payment of additional fees under, the creation or acceleration
of any obligations under, or the creation of a Lien on any of the assets of Parent or any of its Subsidiaries pursuant to any Contract
binding upon Parent or any of its Subsidiaries or (iii) assuming (solely with respect to performance of this Agreement and consummation
of the Merger and the other transactions contemplated hereby) the Consents referred to in Section 5.8(a) are made or
obtained, conflict with or violate any Law or License to which Parent or any of its Subsidiaries is subject; except, in the case
of clauses (ii) and (iii) above, for any such breach, violation, default, termination, modification, payment,
requirement, creation, acceleration, Lien, conflict or violation that would not, individually or in the aggregate, reasonably be expected
to have a Parent Material Adverse Effect.
5.9 Litigation.
As of the date of this Agreement, there are no civil, criminal, or administrative Proceedings pending or, to the Knowledge of Parent,
threatened in writing by or against Parent or its Subsidiaries that seek to enjoin, or would reasonably be expected to have the effect
of preventing or making illegal any of the transactions contemplated by this Agreement, except for those that would not, individually
or in the aggregate, reasonably be expected to have a Parent Material Adverse Effect. None of Parent or its Subsidiaries, or their directors,
officers or employees, in their capacities as such, is a party to or subject to the provisions of any Order that would, individually
or in the aggregate, reasonably be expected to have a Parent Material Adverse Effect.
5.10 Brokers
and Finders. Except with respect to Centerview Partners LLC, Parent has not employed any broker or finder or incurred any liability
for any brokerage fees, commissions or finders’ fees in connection with the Merger or the other transactions contemplated in this
Agreement.
5.11 Taxes.
Except as would not reasonably be expected to have a Parent Material Adverse Effect, as of the date of this Agreement, neither Parent
nor any of its Subsidiaries is aware of the existence of any fact, or has taken or agreed to take any action, including, for the avoidance
of doubt, any action expressly contemplated to be taken pursuant to this Agreement or any of the Transaction Documents, that could reasonably
be expected to prevent or impede the Merger taken together with the ParentSub LLC Merger from properly being treated in accordance with
the Intended Tax Treatment for U.S. federal income tax purposes.
5.12 Financial
Ability. Parent has, and will have as of the Effective Time, sufficient cash on hand or access to available funds to enable Parent
and Merger Sub to satisfy all of Parent’s and Merger Sub’s payment obligations under (and contemplated by) this Agreement,
including, without limitation, the payment of the aggregate Merger Consideration, payment of the obligations under the Exchangeable Debentures
as contemplated by Section 6.16 and all other amounts payable pursuant to ARTICLE III and all related fees and
expenses. Notwithstanding anything to the contrary contained herein, Parent and Merger Sub acknowledge and agree that their obligations
to consummate the transactions contemplated by this Agreement are not contingent upon any of their ability to obtain any third party
financing.
5.13 Solvency.
Neither Parent nor Merger Sub is entering into this Agreement with the intent to hinder, delay or defraud either present or future creditors.
Immediately after giving effect to all of the transactions contemplated by this Agreement and the making of the payments contemplated
by this Agreement, and assuming (a) satisfaction of the conditions to Parent’s obligation to consummate the Merger as set
forth herein, the accuracy of the representations and warranties of the Company set forth herein and the performance by the Company of
its obligations hereunder in all material respects, (b) that the most recent financial forecasts for the Company made available
to Parent by or on behalf of the Company prior to the date hereof have been prepared in good faith based upon assumptions that were reasonable
and (c) that, immediately prior to the Effective Time, without giving effect to the Merger, the Company and its Subsidiaries, on
a consolidated basis, are Solvent, the Surviving Corporation and its Subsidiaries, on a consolidated basis, will be Solvent.
5.14 No
Other Representations and Warranties. Except for the representations and warranties of Parent and Merger Sub contained in this ARTICLE V
or in any certificate or agreement delivered pursuant to this Agreement, neither Parent nor Merger Sub is making and has made, and
no other Person is making or has made on behalf of Parent and Merger Sub, any express or implied representation or warranty in connection
with this Agreement or the transactions contemplated hereby and neither Parent nor Merger Sub nor any person on behalf of Parent and
Merger Sub is making any express or implied representation or warranty with respect to Parent and Merger Sub or with respect to any other
information made available to the Company in connection with the transactions contemplated by this Agreement.
5.15 Access
to Information; Disclaimer. Parent and Merger Sub each acknowledges and agrees that it (a) has had an opportunity to discuss
the business of the Company and its Subsidiaries with the management of the Company, (b) has had reasonable access to (i) the
books and records of the Company and its Subsidiaries and (ii) the documents provided by the Company for purposes of the transactions
contemplated by this Agreement, (c) has been afforded the opportunity to ask questions of and receive answers from officers of the
Company, (d) has conducted its own independent investigation of the Company and its Subsidiaries, their respective businesses and
the transactions contemplated hereby and (e) has not relied on any representation, warranty or other statement by any Person (including
Certares) on behalf of the Company or any of its Subsidiaries, other than the representations and warranties of the Company contained
(i) in ARTICLE IV or (ii) in any certificate or agreement delivered pursuant to this Agreement, and that all other
representations and warranties are specifically disclaimed. Without limiting the foregoing, except for the representations and warranties
set forth in ARTICLE IV or in any certificate or agreement delivered pursuant to this Agreement, each of Parent and Merger
Sub further acknowledges and agrees that none of the Company or any of its stockholders, directors, officers, employees, Affiliates,
advisors, agents or other Representatives (including Certares) has made any representation or warranty concerning any estimates, projections,
forecasts, business plans or other forward-looking information regarding the Company, its Subsidiaries or their respective businesses
and operations. Each of Parent and Merger Sub hereby acknowledges that there are uncertainties inherent in attempting to develop such
estimates, projections, forecasts, business plans and other forward-looking information 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, business plans and other forward-looking information furnished to them (including the reasonableness of the assumptions
underlying such estimates, projections, forecasts, business plans and other forward-looking information), and that Parent and Merger
Sub will have no claim against the Company or any of its stockholders, directors, officers, employees, Affiliates, advisors, agents or
other Representatives with respect thereto. Each of Parent and Merger Sub hereby acknowledges and agrees with the statements set forth
in Section 4.22.
ARTICLE VI
COVENANTS
6.1 Company
Interim Operations. Except (1) as required by applicable Law, (2) as Parent may approve in writing (such approval not to
be unreasonably withheld, conditioned or delayed), (3) as expressly disclosed in Section 6.1 of the Company Disclosure
Letter or (4) as expressly provided for in this Agreement, any other Transaction Document or as expressly required by the Restated
Company Certificate of Incorporation, the A&R Company Bylaws or comparable governing documents in effect as of the date of this Agreement,
the Company covenants and agrees as to itself and its Subsidiaries that, from and after the execution of this Agreement and prior to
the earlier of (x) the Effective Time or (y) termination of this Agreement in accordance with ARTICLE VIII, (A) the
Company shall use its commercially reasonable efforts to conduct its business and the business of its Subsidiaries in the ordinary course
of business in all material respects, including using commercially reasonable efforts to manage the Company’s operating and transaction
fees, costs, charges and expenses in accordance with Section 6.1 of the Company Disclosure Letter; provided, however,
that no action taken by Parent or any of its Subsidiaries or that is specifically permitted by any of subclauses (a) through
(p) of Section 6.1(B) shall be deemed a breach of either this clause (A) or any other subclause
of Section 6.1(B) and (B) without limiting the generality of, and in furtherance of, the foregoing, the Company
shall not and will not permit any of its Subsidiaries to:
(a) (i) amend
its certificate of incorporation or bylaws (or comparable governing documents), other than amendments to the governing documents of any
wholly owned Subsidiary of the Company that would not prevent, materially delay or materially impair the Merger or the other transactions
contemplated by this Agreement, (ii) split, combine, subdivide or reclassify its outstanding equity interests (except for any such
transaction by a wholly owned Subsidiary of the Company which remains a wholly owned Subsidiary after consummation of such transaction),
(iii) declare, set aside or pay any dividend or distribution payable in cash, stock or property (or any combination thereof) in
respect of any of its equity interests (except for any dividends or distributions paid by a direct or indirect wholly owned Subsidiary
of the Company to another direct or indirect wholly owned Subsidiary of the Company or to the Company) or (iv) purchase, repurchase,
redeem or otherwise acquire any of its equity interests or any securities convertible or exchangeable into or exercisable for any of
its equity interests (other than (A) pursuant to the exercise of Options or the forfeiture of, or withholding of Taxes with respect
to, Options, in each case, outstanding as of the date of this Agreement in accordance with existing terms of such awards and the applicable
Company Stock Plan, as in effect as of the date hereof, (B) purchases, repurchases, redemptions or other acquisitions of securities
of any wholly owned Subsidiary of the Company by the Company or any other wholly owned Subsidiary of the Company, (C) in connection
with the conversion of shares of Series B Common Stock into shares of Series A Common Stock in accordance with the Restated
Company Certificate of Incorporation, or (D) for the avoidance of doubt, in connection with the Exchangeable Debentures as contemplated
by Section 6.16 and the Forward Contract as contemplated by Section 6.17);
(b) merge
or consolidate with any other Person, or restructure, reorganize or completely or partially liquidate (other than mergers among, or the
restructuring, reorganization or liquidation of any wholly owned Subsidiaries of the Company that would not prevent, materially delay
or materially impair the Merger or the other transactions contemplated by this Agreement);
(c) (i) increase
in any manner the compensation or consulting fees, bonus, pension, welfare, fringe or other benefits, severance or termination pay of
any employee or other service provider of the Company or any of its Subsidiaries, (ii) take any action to accelerate the vesting
or lapsing of restrictions or payment, or fund or in any other way to secure the payment, of any compensation, award or benefits under
any Company Plan, (iii) become a party to, establish, adopt, terminate or make any change to any Company Plan (or any arrangement
that would have been a Company Plan had it be entered into prior to this Agreement), (iv) grant any new awards, or amend or modify
the terms of outstanding awards, under any Company Plan, (v) hire, engage or terminate (other than for cause) the employment or
engagement of any employee or service provider or (vi) forgive any loans or issue any loans to any employee or other service provider
of the Company or any of its Subsidiaries;
(d) incur
any Indebtedness, guarantee, endorse, assume or otherwise become liable or responsible for any Indebtedness of another Person or issue
any rights to acquire any Indebtedness, except (i) inter-company Indebtedness among the Company and its wholly owned Subsidiaries
or (ii) any Parent Loan Facility;
(e) make
or commit to any capital expenditures;
(f) other
than pursuant to Permitted Liens, transfer, lease, license, sell, assign, mortgage, pledge, place a Lien upon or otherwise dispose of
any properties or assets (including equity interests of any of its Subsidiaries, Parent Common Stock and Parent Class B Common Stock,
but not including any Intellectual Property) (other than (i) transactions among the Company and its wholly owned Subsidiaries, (ii) in
connection with any Parent Loan Facility, (iii) any deemed sales or dispositions pursuant to Section 16 of the Exchange Act,
(iv) in connection with any business combination transaction, including any merger, consolidation, share exchange, tender offer,
exchange offer or other similar transaction, reorganization, recapitalization, dissolution, liquidation, reverse stock-split or other
similar transaction, by or involving Parent (a “Parent Business Combination”) or (v) pursuant to Contracts in
effect as of the date of this Agreement and set forth in Section 6.1(f) of the Company Disclosure Letter, including
pursuant to the Liberty Media Contracts);
(g) (i) sell,
lease, license, sublicense, assign, transfer, abandon, allow to lapse or expire, or otherwise dispose of any Company Owned IP or (ii) disclosed
any material Trade Secrets of the Company to any other Person (other than in the ordinary course of business to a Person bound by adequate
confidentiality obligations);
(h) issue,
deliver, sell, grant, transfer, or encumber, or authorize the issuance, delivery, sale, grant, transfer or encumbrance of, any shares
of its capital stock or any securities convertible or exchangeable into or exercisable for, or any options, warrants or other rights
to acquire, any such shares, except (i) for the issuance of any Certificate in replacement of any lost or destroyed Certificate
representing then previously existing Shares, (ii) for any shares of Common Shares issued pursuant to Options (including any vesting,
exercise or settlement thereof) outstanding on the date of this Agreement in accordance with the existing terms of such awards and the
applicable Company Stock Plan, as in effect as of the date hereof (including the withholding of shares to satisfy withholding tax obligations
in respect of Company Equity Awards), (iii) any such issuance, delivery, sale, grant or transfer by wholly owned Subsidiaries to
the Company or to any other wholly owned Subsidiary of the Company, (iv) for issuances of shares of Series A Common Stock upon
the conversion of shares of Series B Common Stock into shares of Series A Common Stock in accordance with the Restated Company
Certificate of Incorporation or (v) in connection with any Parent Loan Facility;
(i) acquire
or commit to acquire any business, assets or other property, whether by merger, consolidation, purchase of property or assets or otherwise,
other than pursuant to a Parent Business Combination or in compliance with the Liberty Media Contracts;
(j) make
any material change with respect to its financial accounting policies or procedures, except as required by changes in GAAP (or any interpretation
thereof), by Regulation S-X under the Exchange Act or by applicable Law;
(k) enter
into any new line of business;
(l) make
any loans, advances or capital contributions to, or investments in, any Person (other than loans, advances or capital contributions to
the Company or any direct or indirect wholly owned Subsidiary of the Company);
(m) except
in the ordinary course of business (but subject to the incurrence of only de minimis liability to the Company) or in connection
with the transactions contemplated by the Transaction Documents (including the definitive documentation governing the Parent Loan Facility),
(i) amend or modify in any material respect (other than renewals) or terminate (excluding (A) terminations, expirations or
non-renewals in accordance with the terms thereof and, for the avoidance of doubt, the redemption, repurchase or exchange of the Exchangeable
Debentures (and any amendment or modification to the Exchangeable Senior Debentures Indenture related to such redemption, repurchase
or exchange) and settlement of the Forward Contract as contemplated by this Agreement and (B) the Forward Contract Amendment) any
Company Material Contract or waive, release or assign any material rights, claims or benefits under any Company Material Contract or
(ii) enter into any Contract that would have been a Company Material Contract had it been entered into prior to the date of this
Agreement unless it is on terms substantially consistent with, or on terms more favorable to the Company or its Subsidiaries (and to
Parent and its Subsidiaries following the Closing) than, a Contract it is replacing, except for any engagement letter for advisors or
service providers in connection with the transactions contemplated by the Transaction Documents, including a proxy solicitor and an inspector
of elections;
(n) (i) settle,
compromise or otherwise agree to the resolution of any action, suit, case, litigation, claim, hearing, arbitration, investigation or
other proceedings before or threatened to be brought before a Governmental Entity, other than settlements, compromises or resolutions
not in excess of amounts available under the Company’s applicable insurance policy and such settlements, compromises or resolutions
do not involve any admission of guilt, material injunctive or equitable relief or impose material restrictions on the business activities
of the Company or its Subsidiaries or (ii) waive, release, grant or transfer any material claim or right of material value or knowingly
consent to the termination of any material claim or right of material value;
(o) (i) make,
change or revoke any material Tax election or adopt or change any method of Tax accounting other than in the ordinary course consistent
with past practice, (ii) (A) enter into any “closing agreement” as described in Section 7121 of the Code (or
any comparable or similar provisions of applicable Law) with respect to any material tax liability or (B) settle or compromise any
material liability with respect to Taxes or surrender any material claim for a refund of Taxes, (iii) file any material amended
Tax Return or (iv) consent to any extension or waiver of the limitations period applicable to any material claim or material assessment
with respect of Taxes;
(p) (i) extend
any Carrying Credit to any other person at any time while any obligation of the Company under the Parent Loan Facility remains outstanding
or (ii) use the proceeds of the Parent Loan Facility for the purpose, directly or indirectly, of buying or carrying Margin Stock;
or
(q) agree,
resolve or commit to do any of the foregoing.
6.2 No
Solicitation; Acquisition Proposals.
(a) No
Solicitation or Negotiation. Subject to the provisions of this Section 6.2, from the date of this Agreement until the
Effective Time (or, if earlier, the valid termination of this Agreement in accordance with ARTICLE VIII) the Company shall
not, and shall use its reasonable best efforts to cause its Subsidiaries and its and their respective directors, officers and employees
not to, and shall instruct its other Representatives not to, directly or indirectly: (i) solicit, initiate, knowingly encourage
or knowingly facilitate any inquiries or the making of any proposal or offer that constitutes, or would reasonably be expected to lead
to, an Acquisition Proposal; (ii) participate in any discussions or negotiations with any Person regarding any Acquisition Proposal;
or (iii) provide any non-public information concerning the Company or any of its Subsidiaries to any Person, or afford access to
the business, assets, properties, books or records, other information or employees or other Representatives of the Company or any of
its Subsidiaries with the intent to induce, or that would reasonably be expected to lead to, any Acquisition Proposal. The Company shall,
and the Company shall cause its Subsidiaries and direct its Representatives to, immediately (A) cease and cause to be terminated
any discussions and negotiations with any Person (other than Parent, Merger Sub and their Representatives) conducted theretofore with
respect to any Acquisition Proposal, or proposal that would reasonably be expected to lead to an Acquisition Proposal and cease providing
any information to any such Person or its Representative, (B) with respect to any Person with whom such discussions or negotiations
have been terminated, promptly following the date hereof (and in any event within five (5) Business Days hereof) request that such
Person and its Representatives return or destroy, in accordance with the terms of the applicable confidentiality agreement, any information
furnished by or on behalf of the Company and shall use reasonable best efforts to secure its rights and ensure the performance of any
such Person’s obligations under any applicable confidentiality agreement, (C) promptly terminate all access granted to any
Person and its Representatives to any physical or electronic data rooms relating (or other diligence access) and (D) not terminate,
waive, amend or modify any provision of any existing confidentiality agreement with respect to a potential Acquisition Proposal. Notwithstanding
anything to the contrary in this Agreement, the Company and its Representatives may in any event (x) inform any Person that makes
an Acquisition Proposal of the restrictions imposed by this Section 6.2 and (y) waive any standstill provisions in any
agreement (including any confidentiality agreement) with any Person or group solely to the extent such standstill provisions would prohibit
such Person or group from making an Acquisition Proposal privately to the Company Board.
(b) Fiduciary
Exception to No Solicitation Provision. Notwithstanding anything to the contrary in this Section 6.2, prior to the receipt
of the Company Requisite Approval, the Company may, in response to an unsolicited, bona fide written Acquisition Proposal, (i) provide
access to 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 is provided to Parent promptly (and in any event within twenty-four
(24) hours) following the time such information is made available to such Person and that, prior to furnishing any such material non-public
information, the Company receives from the Person making such Acquisition Proposal an executed Acceptable Confidentiality Agreement and
(ii) engage or participate in any discussions or negotiations with any such Person regarding such Acquisition Proposal if, and only
if, prior to taking any action described in clause (i) or (ii) above, (1) the Company Board (or any committee
thereof) determines in good faith after consultation with outside legal counsel that (A) based on the information then available
and after consultation with a financial advisor that such Acquisition Proposal either constitutes a Superior Proposal or would reasonably
be expected to lead to a Superior Proposal and (B) the failure to take such action would reasonably be expected to be inconsistent
with its fiduciary duties under applicable Law and (2) with respect to clause (ii) above, the Company provides written notice
to Parent at least twenty-four (24) hours prior to engaging or participating in any discussions or negotiations with any Person regarding
such Acquisition Proposal.
(c) Notice.
From and after the date of this Agreement, the Company shall promptly (and, in any event, within twenty-four (24) hours) notify Parent
if (i) any written or other bona fide inquiries, proposals or offers with respect to an Acquisition Proposal or that would reasonably
be expected to lead to an Acquisition Proposal are received by the Company, (ii) any non-public information is requested in connection
with any Acquisition Proposal or would reasonably be expected to lead to an Acquisition Proposal from the Company or (iii) any discussions
or negotiation with respect to an Acquisition Proposal or would reasonably be expected to lead to an Acquisition Proposal are sought
to be initiated or continued with the Company, indicating, in connection with such notice, the name of such Person and the material terms
and conditions of any proposals or offers (including providing copies of any written material delivered by such Person) and thereafter
shall keep Parent reasonably informed, on a current basis, of the status and terms of any such proposals or offers (including any material
amendments thereto) and the status of any such discussions or negotiations (including delivery to Parent within twenty-four (24) hours
of copies of all communications delivered by or on behalf of such Person in connection with such proposal or offer).
(d) No
Change in Recommendation or Alternative Acquisition Agreement. Except as provided in Section 6.2(e), Section 6.2(f) or
Section 6.2(h), from and after the date of this Agreement until the receipt of the Company Requisite Approval, the Company
Board (or any committee thereof) shall not (i) withhold, withdraw, qualify or modify (or publicly propose or resolve to withhold,
withdraw, qualify or modify), in a manner adverse to Parent, the Company Recommendation or approve, recommend or otherwise declare advisable
any Acquisition Proposal, (ii) fail to include the Company Recommendation in the Proxy Statement, (iii) other than with respect
to a tender or exchange offer, reaffirm the Company Recommendation within ten (10) days of receipt of a written request from Parent
to do so (and if the Company Stockholders Meeting is scheduled to be held within ten (10) days, then within three (3) Business
Days of such request) if an Acquisition Proposal or any material modification thereto has been made public (other than by Parent or any
of its Subsidiaries or Representatives) and not withdrawn (provided, that Parent shall be entitled to make such written request
for reaffirmation only once for each Acquisition Proposal and once for each material amendment to such Acquisition Proposal), (iv) fail
to recommend against any Acquisition Proposal that is a tender or exchange offer by a third party pursuant to Rule 14d-9 or Rule 14e-2
promulgated under the Exchange Act within ten (10) Business Days of the commencement thereof, (v) approve or recommend, or
publicly propose to enter into an Alternative Acquisition Agreement (each of the foregoing clauses (i) – (v), a “Change
in Recommendation”) or (vi) cause or permit the Company or any of its Subsidiaries to enter into any letter of intent,
memorandum of understanding, agreement in principle, acquisition agreement, merger agreement, option agreement or other agreement (other
than a confidentiality agreement referred to in Section 6.2(b) entered into in compliance with Section 6.2(a))
(an “Alternative Acquisition Agreement”) relating to any Acquisition Proposal or (vii) approve or recommend,
or publicly propose to enter into an Alternative Acquisition Agreement.
(e) Superior
Proposal Exception to Change in Recommendation Provision or Entry into an Alternative Acquisition Agreement. Notwithstanding anything
to the contrary set forth in Section 6.2, following receipt of a written Acquisition Proposal by the Company after the date
of this Agreement that did not result from a material breach of Section 6.2(a) and that the Company Board (or any committee
thereof) determines in good faith, after consultation with its outside legal counsel and financial advisor, constitutes a Superior Proposal,
the Company Board (or any committee thereof) may, at any time prior to the receipt of the Company Requisite Approval, make a Change in
Recommendation or terminate this Agreement to enter into an Alternative Acquisition Agreement with respect to such Superior Proposal
in accordance with this Section 6.2(e), or authorize, resolve, agree or propose publicly to take any such action, if all
of the following conditions are met:
(i) the
Company shall have (A) provided to Parent four (4) Business Days’ prior written notice, which shall state expressly (x) that
it has received a written Acquisition Proposal that constitutes a Superior Proposal, (y) the material terms and conditions of the
Acquisition Proposal (including the consideration offered therein and the identity of the Person or group making the Acquisition Proposal)
and shall have contemporaneously provided an unredacted copy of the Alternative Acquisition Agreement and all other documents (other
than immaterial documents) related to the Superior Proposal (it being understood and agreed that any amendment to the financial terms
or any other material term or condition of such Superior Proposal shall require a new notice and an additional two (2) Business
Day period) and (z) that, subject to clause (ii) below, the Company Board (or any committee thereof) has determined
to make a Change in Recommendation or to terminate this Agreement in accordance with Section 8.3(b) in order to enter
into the Alternative Acquisition Agreement, as applicable, and (B) prior to making such a Change in Recommendation or terminating
this Agreement in accordance with Section 8.3(b), as applicable, used commercially reasonable efforts to engage in good faith
with Parent (to the extent Parent wishes to engage) during such notice period, which may be on a non-exclusive basis, to consider any
adjustments committed to in writing by Parent to the terms and conditions of this Agreement such that the Alternative Acquisition Agreement
ceases to constitute a Superior Proposal; and
(ii) the
Company Board (or any committee thereof) shall have determined, in good faith, after consultation with its financial advisors and outside
legal counsel, that, in light of such Superior Proposal and taking into account any revised terms committed to in writing by Parent,
such Superior Proposal continues to constitute a Superior Proposal and that the failure to make such Change in Recommendation or to so
terminate this Agreement in accordance with Section 8.3(b), as applicable, would reasonably be expected to be inconsistent
with the directors’ fiduciary duties under applicable Law.
Notwithstanding anything to the contrary contained
herein, neither the Company nor any of its Subsidiaries shall enter into an Alternative Acquisition Agreement before this Agreement has
been validly terminated in accordance with its terms.
(f) Intervening
Event Exception to Change in Recommendation Provision. Notwithstanding anything to the contrary set forth in this Section 6.2,
upon the occurrence of any Intervening Event, the Company Board (or any committee thereof) may, at any time prior to the receipt of the
Company Requisite Approval, make a Change in Recommendation if all of the following conditions are met:
(i) the
Company shall have (A) provided to Parent four (4) Business Days’ prior written notice, which shall (x) set forth
in reasonable detail information describing the Intervening Event and the rationale for the Change in Recommendation and (y) state
expressly that, subject to clause (ii) below, the Company Board (or any committee thereof) has determined to make a Change
in Recommendation and (B) prior to making such a Change in Recommendation, used commercially reasonable efforts to engage in good
faith with Parent (to the extent Parent wishes to engage) during such notice period to consider any adjustments committed to in writing
by Parent to the terms and conditions of this Agreement such that the failure of the Company Board (or any committee thereof) to make
a Change in Recommendation in response to the Intervening Event in accordance with clause (ii) below would no longer reasonably
be expected to be inconsistent with the directors’ fiduciary duties under applicable Law; and
(ii) the
Company Board (or any committee thereof) shall have determined in good faith, after consultation with its outside legal counsel, that
in light of such Intervening Event and taking into account any revised terms committed to in writing by Parent, the failure to make a
Change in Recommendation would reasonably be expected to be inconsistent with the directors’ fiduciary duties under applicable
Law.
(g) Certain
Permitted Disclosures. Nothing contained in this Agreement shall prohibit the Company or the Company Board from (i) taking and
disclosing to stockholders of the Company a position contemplated by Rules 14d-9 and 14e-2(a) promulgated under the Exchange
Act (or any similar communication to stockholders of the Company in connection with the making or amendment of a tender offer or exchange
offer) or (ii) making any “stop-look-and-listen” or similar communication to the stockholders of the Company of the
nature contemplated by Rule 14d-9 under the Exchange Act; provided, that (A) in no event shall this Section 6.2(g) affect
the obligations specified in this Section 6.2 (or the consequences thereof in accordance with this Agreement) or the definition
of Change in Recommendation and (B) any such disclosure (other than the issuance by the Company of a “stop-look-and-listen”
or similar communication of the type contemplated by Rule 14d-9(f) under the Exchange Act) that is otherwise within the definition
of “Change in Recommendation” shall be deemed a Change in Recommendation for all purposes of this Agreement.
(h) Parent
Acquisition Proposal.
(i) Notwithstanding
anything to the contrary in this Agreement, including the other provisions of this Section 6.2, if, at any time, Parent or
any of its Subsidiaries or Representatives receives a Parent Acquisition Proposal or any inquiry, proposal, offer or request for information
with respect to a Parent Acquisition Proposal, or with respect to such inquiry, proposal, offer or request for information that would
reasonably be expected to lead to a Parent Acquisition Proposal, then (A) Parent shall promptly (and, in any event, within twenty-four
(24) hours) notify the Company thereof indicating, in connection with such notice, the name of such Person and the material terms and
conditions of any proposals or offers (including providing copies of any written material delivered by such Person) and thereafter shall
keep the Company reasonably informed, on a current basis, of the status and terms of any such proposals or offers (including any material
amendments thereto) and the status of any such discussions or negotiations (including delivery to the Company, on a current basis, copies
of all material communications delivered by or on behalf of such Person in connection with such proposal or offer) and (B) with
respect to any such Parent Acquisition Proposal that Parent determines to pursue, subject to the execution by such Person (or any of
its Affiliates) of an Acceptable Confidentiality Agreement, the Company, its Subsidiaries and their respective Representatives shall
have the right (x) to provide access to non-public information regarding the Company or any of its Subsidiaries to such Person who
made such Parent Acquisition Proposal or who made such inquiry, proposal, offer or request for information with respect to such Parent
Acquisition Proposal or that would reasonably be expected to lead to a Parent Acquisition Proposal and (y) engage or participate
in any discussions or negotiations with any such Person regarding (1) such Parent Acquisition Proposal or regarding such inquiry,
proposal or offer with respect to a Parent Acquisition Proposal or that would reasonably be expected to lead to such Parent Acquisition
Proposal and (2) any actual or potential Acquisition Proposal that would or would reasonably be expected to be entered into in connection
with such Parent Acquisition Proposal; provided, that (1) Parent shall lead and control any such discussions or negotiations,
including with respect to terminating any such discussions or negotiations, (2) non-public information provided by the Company,
its Subsidiaries and their respective Representatives to such Person has previously been made available to Parent or is provided to Parent
promptly (and in any event within twenty-four (24) hours) following the time such information is made available to such Person and (3)
the Company shall coordinate with Parent and keep Parent reasonably informed of any discussions or negotiations held with such Person.
(ii) Notwithstanding
anything to the contrary in this Agreement, including the other provisions of this Section 6.2, if Parent enters into, or
if Parent informs the Company that Parent intends to enter into, any written definitive agreement for a Parent Acquisition Proposal,
(A) the Company Board (or any committee thereof) shall have the right to (x) make a Change in Recommendation or approve the
termination of this Agreement to enter into an Alternative Acquisition Agreement for an Acquisition Proposal (provided, that solely
for purposes of this Section 6.2(h)(ii), references to “fifteen percent (15%) or more” in the definition of Acquisition
Proposal shall be deemed to be references to “fifty percent (50%) or more”) with such Person (or any of its Affiliates) that
has made such Parent Acquisition Proposal and (y) take such other actions as it deems necessary, appropriate or advisable in connection
therewith, including approving such Alternative Acquisition Agreement, and (B) the Company shall have the right, substantially concurrently
with and subject to the entry by Parent or any of its Subsidiaries into any written definitive agreement in connection with such Parent
Acquisition Proposal, to (x) terminate this Agreement pursuant to Section 8.3(c) and (y) enter into with the
Person making such Parent Acquisition Proposal (or any of its Affiliates) any and all Alternative Acquisition Agreements with respect
to such Acquisition Proposal. For the avoidance of doubt, no actions taken by the Company, the Company Board, any Subsidiary of the Company
or any Representative of the Company pursuant to or in accordance with this Section 6.2(h) shall be deemed or shall
constitute a breach or default of the other provisions of this Section 6.2 or any other provision of this Agreement.
6.3 Information
Supplied; Schedule 13E-3.
(a) As
promptly as reasonably practicable, and in any event within thirty five (35) days of the date of this Agreement, the Company shall prepare
and cause to be filed with the SEC, a proxy statement of the type contemplated by Regulation 14A of the Exchange Act in preliminary form
in connection with the solicitation by the Company of proxies from holders of Shares to obtain the Company Requisite Approval (the “Proxy
Statement”). The Company and Parent shall cooperate to, concurrently with the preparation and filing of the Proxy Statement,
jointly prepare a Rule 13e-3 Transaction Statement on Schedule 13E-3 (such transaction statement, including any amendment or supplement
thereto, the “Schedule 13E-3”) relating to the transactions contemplated by this Agreement.
(b) The
Company shall use its reasonable efforts to cause the definitive Proxy Statement and the Schedule 13E-3 to be filed with the SEC and
the definitive Proxy Statement to be mailed to the Company’s stockholders as promptly as possible after the date the staff of the
SEC (the “Staff”) advises that it has no further comments thereon or that the Company may commence mailing the Proxy
Statement, which confirmation will be deemed to occur if the Staff has not affirmatively notified the Company that the SEC will or will
not be reviewing the Proxy Statement within the time frame specified by Rule 14A-6(a) of the Exchange Act (such earlier time,
the “Filing Time”).
(c) No
filing of, or amendment or supplement to, the Proxy Statement, the Schedule 13E-3 or any other SEC filing (such other SEC filing, an
“Other Company Filing”) will be made by the Company without providing Parent a reasonable opportunity to review and
comment thereon (other than any filing, amendment or supplement in connection with a Change in Recommendation), and the Company shall
consider in good faith any comments related thereto reasonably proposed by Parent’s outside legal counsel and its other Representatives.
The Company shall promptly provide Parent with copies of all such filings, amendments or supplements to the extent not readily publicly
available. In connection with the Proxy Statement and the Schedule 13E-3, Parent shall (i) furnish all information required by the
Exchange Act or applicable Law concerning it and its Affiliates to the Company, (ii) provide such other assistance and such other
information as may be reasonably requested by the Company in connection with the preparation of information to be included therein and
(iii) otherwise reasonably assist and cooperate with the Company in the preparation of the Proxy Statement and the Schedule 13E-3
and the resolution of any comments received from the SEC. The Company agrees that all information related to Parent and its Affiliates
included in the Proxy Statement, Schedule 13E-3 or Other Company Filing shall be in form and content reasonably satisfactory to Parent.
If at any time, any information relating to the Company or Parent, or any of their respective Affiliates, directors or officers, is discovered
by the Company or Parent, which is required to be set forth in an amendment or supplement to the Proxy Statement or Schedule 13E-3 such
that the Proxy Statement or Schedule 13E-3 would not (A) include any misstatement of a material fact or (B) omit to state any
material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they
were made, not misleading, then (x) the party that makes such discovery shall promptly notify the other party and (y) the Company
shall prepare (with Parent’s reasonable assistance) and file with the SEC any appropriate amendment or supplement describing such
information and, to the extent required by applicable Law, disseminate such amendment or supplement to the stockholders of the Company.
The Company shall notify Parent promptly of the receipt of any comments from the SEC or the Staff and of any request by the SEC or the
Staff for amendments or supplements to the Proxy Statement or Schedule 13E-3 or for additional information and shall supply Parent with
copies of all correspondence between it or any of its Representatives, on the one hand, and the SEC or the Staff, on the other hand,
with respect to the Proxy Statement or Schedule 13E-3 or the transactions contemplated hereby, including the Merger. No response to any
comments from the SEC or the Staff relating to the Proxy Statement or Schedule 13E-3 will be made by the Company without providing Parent
a reasonable opportunity to review and comment thereon, unless made pursuant to a telephone call initiated by the SEC. The Company
will use reasonable best efforts to cause the Proxy Statement and the Company and Parent will use reasonable best efforts to cause the
Schedule 13E-3 to comply as to form in all material respects with the applicable provisions of the Securities Act and the Exchange Act
and the rules and regulations thereunder, and the rules of OTC Market Group (the “OTC”) and NASDAQ, as applicable.
6.4 Company
Stockholders Meeting.
(a) The
Company will, in consultation with Parent, as promptly as reasonably practicable after the Filing Time and in accordance with applicable
Law and the Restated Company Certificate of Incorporation and the A&R Company Bylaws, and the rules of the OTC, take all action
necessary to establish a record date for, duly call, give notice of, convene and hold a meeting of holders of Shares (or, if the holders
of Series A Preferred Shares have delivered a written consent approving the Company Charter Amendment, a meeting of holders of Common
Shares) to consider and vote upon the approval of the adoption of this Agreement and the approval of the adoption of the Company Charter
Amendment (the “Company Stockholders Meeting”) as promptly as reasonably practicable following the mailing of the
Proxy Statement to the Company’s stockholders for the purpose of obtaining the Company Requisite Approval. Subject to the provisions
of Section 6.2, the Company Board shall (i) include the Company Recommendation in the Proxy Statement, (ii) recommend
at the Company Stockholders Meeting that the holders of Common Shares approve the adoption of this Agreement and the holders of Common
Shares or Shares, as applicable, approve the adoption of the Company Charter Amendment and (iii) use its reasonable best efforts
to obtain and solicit such approvals. Unless a Change in Recommendation has occurred in accordance with Section 6.2 the Company
shall keep Parent informed on a reasonably current basis of the status of its efforts to solicit and obtain the Company Requisite Approval.
The Company shall permit Parent and its Representatives to attend the Company Stockholders Meeting if requested by Parent in writing.
Notwithstanding the foregoing, if on or before the time the Company Stockholders Meeting is scheduled, the Company reasonably believes
that (A) it will not receive proxies representing the Company Requisite Approval, whether or not a quorum is present, or (B) it
will not have enough Common Shares represented to constitute a quorum necessary to conduct the business of the Company Stockholders Meeting,
the Company may (and shall at the reasonable request of Parent), in its reasonable discretion, postpone or adjourn, or make one or more
successive postponements or adjournments of, the Company Stockholders Meeting in consultation with Parent. In addition, notwithstanding
the first and second sentence of this Section 6.4(a), the Company may postpone or adjourn the Company Stockholders Meeting
to allow reasonable additional time for the filing or mailing of any supplemental or amended disclosure that the Company has determined,
after consultation with outside legal counsel, is reasonably likely to be required under applicable Law and for such supplemental or
amended disclosure to be disseminated in a manner suitable under applicable Law and reviewed by stockholders of the Company prior to
the Company Stockholders Meeting. The foregoing notwithstanding, the Company may not, without the prior written consent of Parent or
except as expressly required by an Order, postpone or adjourn the Company Stockholders Meeting for a period of more than ten (10) Business
Days on any single occasion. Without the prior written consent of Parent (such consent not to be unreasonably withheld, conditioned or
delayed), the matters contemplated by the Company Requisite Approval shall be the only matters (other than matters of procedure and matters
required by or advisable under applicable Law to be voted on by the Company’s stockholders in connection therewith) that the Company
shall propose to be voted on by the stockholders of the Company at the Company Stockholders Meeting. Notwithstanding the foregoing, in
no event will the record date of the Company Stockholders Meeting be changed without Parent’s prior written consent (such consent
not be unreasonably withheld, conditioned or delayed), unless the Company Board shall determine, in good faith, after consultation with
its outside counsel, that the record date should be changed as required by applicable Law or that the failure to change the record date
would reasonably be expected to be inconsistent with the directors’ fiduciary duties under applicable Law.
(b) Notwithstanding
any Change in Recommendation, the Company shall nonetheless submit this Agreement and the Company Charter Amendment to the holders of
Shares entitled to vote thereon for adoption at the Company Stockholders Meeting unless this Agreement is terminated in accordance with
ARTICLE VIII prior to the Company Stockholders Meeting.
6.5 Filings;
Other Actions; Notification and Cooperation.
(a) The
Company and Parent shall, subject to Section 6.2, cooperate with each other and use, and shall cause their respective Subsidiaries
and Affiliates to use, their respective reasonable best efforts to consummate and make effective the Merger and the other transactions
contemplated by this Agreement as expeditiously as practicable, and in no event later than the Termination Date, including (i) preparing
and filing all documentation to effect all necessary notices, reports and other filings required under any Antitrust Laws with respect
to the transactions contemplated hereby and to obtain as expeditiously as practicable all consents, registrations, approvals, permits,
expirations of waiting periods and authorizations necessary or advisable to be obtained from any Governmental Entity in order to consummate
the Merger or any of the other transactions contemplated by this Agreement, and (ii) satisfying the conditions to consummating the
Merger.
(b) In
the event that the parties hereto receive a request for information or documentary material pursuant to any Antitrust Laws, unless otherwise
agreed to by Parent and the Company in writing, the parties hereto will use their reasonable best efforts to submit an appropriate response
to such request as promptly as practicable and advisable, and counsel for the parties will closely cooperate during the entirety of any
such review process. None of the parties hereto, including their respective Subsidiaries and Affiliates, shall take, cause or permit
to be taken, or omit to take, any action that may reasonably be expected to materially delay or prevent consummation of the contemplated
transactions, unless otherwise agreed to in advance by the parties. Parent and the Company shall jointly lead and control the parties’
contact, strategy, timing decisions, and communications for dealing with Governmental Entities in furtherance of the parties’ respective
obligations pursuant to this Section 6.5, and Parent and the Company shall use their respective reasonable best efforts to
cooperate with the other party in this regard; provided that, notwithstanding anything to the contrary in this Section 6.5
or elsewhere in this Agreement, in the event of a disagreement concerning any joint determination reference pursuant to the immediately
foregoing sentence, Parent shall make the final determination in its sole discretion and Parent’s decision shall prevail and control
(and the Company may not take any actions in contravention of such determination by Parent). No party hereto or its counsel shall independently
participate in any prearranged substantive call or meeting relating to the Antitrust Laws with any Governmental Entity in respect of
such filings, investigation, or other inquiry without first giving the other party or its counsel prior notice of such call or meeting
and, to the extent permitted by such Governmental Entity, the opportunity to attend and participate. In furtherance of the foregoing
and to the extent permitted by applicable Law, (i) each party shall promptly notify the other of any filing or material or substantive
communication or inquiry it or any of its Affiliates or Subsidiaries intends to make with any Governmental Entity relating to the matters
that are the subject of this Section 6.5, (ii) prior to submitting any such filing or submission or making any such
communication or inquiry, such party shall provide the other party and its counsel a reasonable opportunity to review, and shall consider
in good faith the comments of the other party in connection with, any such filing, submission, communication or inquiry, (iii) promptly
following the submission of such filing or making such communication, submission or inquiry, provide the other party with a copy of any
such filing or submission or, if in written form, communication or inquiry, or a summary of any oral communication and (iv) consult
with the other party in connection with any inquiry, hearing, investigation or litigation by, or negotiations with, any Governmental
Entity relating to the Merger, including the scheduling of, and strategic planning for, any meetings with any Governmental Entity relating
thereto. In exercising the foregoing cooperation rights, the Company and Parent each shall act reasonably and as promptly as reasonably
practicable. Notwithstanding the foregoing, materials provided pursuant to this Section 6.5(b) may be provided on an
“outside counsel only” or “Outside antitrust counsel only” basis, and may be reasonably redacted or withheld
as necessary to address reasonable privilege concerns, to comply with contractual arrangements or applicable Law, to address attorney-client
privilege concerns, or to protect confidential or competitively sensitive information.
6.6 Access;
Consultation.
(a) Subject
to Section 6.22, upon reasonable advance notice (and in any event not less than twenty-four (24) hours’ notice), and
except as may otherwise be required by applicable Law, (i) the Company shall, and shall cause its Subsidiaries to, use reasonable
best efforts to cause its and its Subsidiaries’ directors, officers and employees to, and shall direct its other Representatives
to, afford Parent and its Representatives reasonable access, during normal business hours during the period prior to the earlier of the
Effective Time and the termination of this Agreement in accordance with ARTICLE VIII, to the Company’s and its Subsidiaries’
properties, assets, books and records and (ii) during such period, the Company shall, and shall cause its Subsidiaries to, furnish
promptly to Parent all information concerning its or any of its Subsidiaries’ capital stock, business and personnel as may reasonably
be requested by Parent in connection with the Merger; provided, that no investigation pursuant to this Section 6.6
shall affect or be deemed to modify any representation or warranty made by the Company; and provided, further that the
foregoing shall not require the Company to permit any invasive environmental sampling of soil, groundwater, sediment, other environmental
media or building materials or any inspection or to disclose any information pursuant to this Section 6.6, to the extent
that (A) in the reasonable good faith judgment of the Company, any applicable Law requires the Company or its Subsidiaries to restrict
or prohibit access to any such information or disclosure thereof would expose the Company to an unreasonable risk of liability for disclosure
of sensitive or personal information, (B) in the reasonable good faith judgment of the Company, the information is subject to confidentiality
obligations to a third party or its disclosure would violate the terms of any confidentiality agreement or other Contract that is binding
on the Company or any of its Subsidiaries or (C) disclosure of any such information or document would result in the waiver or loss
of attorney-client privilege, work product doctrine or any other legal privilege; provided, further, that with respect
to the foregoing clauses (A) through (C) of this Section 6.6(a), the Company shall use its commercially
reasonable efforts to (x) obtain the required consent of any such third party to provide such disclosure, (y) develop an alternative
to providing such information so as to address such matters that is reasonably acceptable to the Company and (z) in the case of
clauses (A) and (C), implement appropriate and mutually agreeable measures to permit the disclosure of such information
in a manner to remove the basis for the objection, including by arrangement of appropriate clean room procedures, necessary redactions
or entry into a customary joint defense agreement with respect to any information to be so provided, if the parties determine that doing
so would reasonably permit the disclosure of such information without violating applicable Law or jeopardizing such privilege. Any investigation
pursuant to this Section 6.6 shall be conducted in such a manner as not to interfere unreasonably with the conduct of the
business of the Company. The Company shall be entitled to have a Representative present at all times during any inspection or access
to information, and all such inspections or access granted pursuant to this Section 6.6 shall be subject to the Company’s
reasonable security measures. Subject to the terms of this Agreement, the Company shall maintain and exercise complete control and supervision
over the Company and its Subsidiaries. All requests for information made pursuant to this Section 6.6 shall be directed to
an executive officer of the Company or such Person as may be designated by any such executive officer.
(b) The
Company may, as it deems advisable and necessary, designate competitively sensitive material as “Outside Counsel Only Material”
or with similar restrictions. Such material and the information contained therein shall be given only to the outside counsel of the recipient,
pursuant to the terms of an agreement with respect thereto on terms that are reasonably acceptable to Parent and the Company and pursuant
to which such information shall not be disclosed by such outside counsel to any directors, officers or employees of the recipient without
the express prior permission of the Company or its legal counsel, and shall be subject to any additional confidentiality or joint defense
agreement between the parties. All information exchanged pursuant to this Section 6.6, including all information and/or discussions
resulting from any access provided pursuant to this Section 6.6 shall be kept confidential.
(c) To
the extent that any of the information or material furnished pursuant to this Section 6.6 or otherwise in accordance with
the terms of this Agreement may include material subject to the attorney-client privilege, work product doctrine or any other applicable
privilege concerning pending or threatened Proceedings or governmental investigations, the parties understand and agree that they have
a commonality of interest with respect to such matters and it is their desire, intention and mutual understanding that the sharing of
such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued protection
under the attorney-client privilege, work product doctrine or other applicable privilege. All such information that is entitled to protection
under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such protection under
these privileges, this Agreement, and under the joint defense doctrine.
(d) Nothing
in this Section 6.6 or in any other part of this Agreement shall require the Company to permit any inspection of or access
to or to disclose (i) any information concerning Acquisition Proposals, which shall be governed by Section 6.2 or (ii) any
information regarding the deliberations of the Company Board with respect to the transactions contemplated hereby or any similar transaction
or transactions with any other Person, the entry into this Agreement, or any materials provided to the Company Board in connection therewith.
6.7 Stock
Exchange De-listing and De-registration. The Company and Parent shall take all commercially reasonable actions necessary to permit
the Common Shares to be removed from the OTC and de-registered under the Exchange Act as promptly as practicable following the Effective
Time.
6.8 Publicity.
The Company and Parent shall consult with each other prior to issuing or making, and provide each other the opportunity to review and
comment on, any press releases or other public announcements with respect to the Merger and the other transactions contemplated by this
Agreement and any filings with any third party or any Governmental Entity (including any national securities exchange) with respect thereto
and shall not issue any such press release or public announcements without the prior written consent of the other party (which shall
not be unreasonably withheld, delayed or conditioned), except (a) after consultation with its outside counsel, as may be required
by applicable Law or by obligations pursuant to any listing agreement with or rules of any national securities exchange, the OTC
or NASDAQ, (b) after consultation with its outside counsel, any consultation that would not be reasonably practicable as a result
of requirements of applicable Law, (c) any press release or public statement that in the good faith judgment of the applicable party
is reasonably consistent in tone and tenor with prior press releases issued or public statements made in compliance with this Section 6.8
or (d) with respect to any Change in Recommendation made in accordance with this Agreement or Parent’s response thereto.
6.9 Expenses;
Transfer Taxes.
(a) Except
as otherwise provided in Section 8.5, whether or not the Merger is consummated, all costs and expenses incurred in connection
with this Agreement and the Merger and the other transactions contemplated by this Agreement shall be paid by the party incurring such
expense and Parent will be responsible for, and pay, fifty percent (50%) of the filing fees incurred in connection with the filings required
under Antitrust Laws.
(b) All
transfer, documentary, excise, sales, use, stamp, registration and other similar Taxes and fees (including penalties and interest) incurred
in connection with the Merger shall be paid by Parent when due and payable.
6.10 Indemnification;
Directors’ and Officers’ Insurance.
(a) From
and after the Effective Time, Parent shall, and shall cause the Surviving Corporation and ParentSub LLC to the fullest extent permitted
under applicable Law to, indemnify, defend and hold harmless, and advance expenses to, the individuals who, at or prior to the Effective
Time, were directors or officers of the Company or any of its Subsidiaries, as applicable (the “Indemnified Parties”),
against any and all costs (including amounts paid in settlement or compromise) or expenses (including reasonable attorneys’ fees),
judgments, fines, losses, claims, damages, penalties or liabilities arising from, relating to or incurred in connection with any claim,
action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative (including with respect to matters
existing or occurring at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby)),
whenever asserted, arising out of or based on, in whole or in part, (i) the fact that such Indemnified Party is or was a director,
officer, employee or agent of the Company or is or was serving at the request of the Company as a director, officer, employee or agent
of another Person or (ii) acts or omissions by a director, officer, employee or agent of the Company in that individual’s
capacity as a director or officer of the Company, or taken at the request of the Company, in each case under clause (i) or
(ii) at, or prior to, the Effective Time (including any action relating in whole or in part to the transactions contemplated
by this Agreement (including the Merger) or relating to the enforcement of this provision), in each case, whether threatened, pending
or completed and whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent that the Company would have
been permitted under the Laws of the State of Delaware, any applicable indemnification agreement to which such Person is a party, the
Restated Company Certificate of Incorporation or the A&R Company Bylaws, as applicable, in effect on the date of this Agreement to
indemnify such Person (and Parent, ParentSub LLC and the Surviving Corporation shall also advance expenses as incurred to the fullest
extent permitted under applicable Law; provided, that the Person to whom expenses are advanced shall provide an undertaking to
repay such advances if it is ultimately determined by final adjudication that such Person is not entitled to indemnification). Parent
shall, and shall cause the Surviving Corporation and ParentSub LLC to ensure that the organizational documents of the Surviving Corporation,
ParentSub LLC and their respective Subsidiaries, shall, for a period of six (6) years from and after the Effective Time, contain
provisions no less favorable, in the aggregate, with respect to indemnification, advancement of expenses and exculpation of present and
former directors, officers, employees and agents of the Company and their Subsidiaries than are presently set forth in the Restated Company
Certificate of Incorporation and the A&R Company Bylaws (or equivalent organizational and governing documents of any Subsidiary).
Any right of indemnification of an Indemnified Party pursuant to this Section 6.10 shall not be amended, repealed or otherwise
modified at any time in a manner that would adversely affect the rights of such Indemnified Party as provided herein.
(b) Prior
to the Effective Time, the Company shall and, if the Company is unable to, Parent shall cause the Surviving Corporation and ParentSub
LLC to, obtain and fully pay for “tail” insurance policies with a claims period of at least six (6) years from and after
the Effective Time for the Company’s current and former directors and officers who are currently covered by the directors’
and officer’s liability insurance coverage currently maintained by the Company from an insurance carrier with the same or better
credit rating as the Company’s current insurance carrier with respect to directors’ and officers’ liability insurance
and fiduciary liability insurance (collectively, “D&O Insurance”) with benefits and levels of coverage at least
as favorable as the Company’s existing policies, as applicable, with respect to matters existing or occurring at or prior to the
Effective Time (including in connection with this Agreement and the transactions or actions contemplated hereby); provided, however,
that in no event shall the Company or ParentSub LLC be required to expend for such policies an annual premium amount in excess of three-hundred
percent (300%) of the annual premiums currently paid by the Company for such insurance. If the Company for any reason fails to obtain
such “tail” insurance policies as of the Effective Time, Parent shall, and Parent shall cause ParentSub LLC to, continue
to maintain in effect for a period of at least six (6) years from and after the Effective Time the D&O Insurance in place as
of the date of this Agreement with benefits and levels of coverage at least as favorable, in the aggregate, as provided in the Company’s
existing policies as of the date of this Agreement, or Parent shall cause ParentSub LLC to purchase comparable D&O Insurance for
such six (6)-year period with benefits and levels of coverage at least as favorable as provided in the Company’s existing policies
as of the date of this Agreement; provided, however, that in no event shall Parent or ParentSub LLC be required to expend
for such policies, an annual premium amount in excess of three-hundred percent (300%) of the annual premium currently paid by the Company
for such insurance; provided, further, that if the premium for such insurance coverage exceeds such amount, Parent shall,
or Parent shall cause ParentSub LLC to, obtain a policy with the greatest coverage available for a cost not exceeding such amount.
(c) If
Parent, the Surviving Corporation, ParentSub LLC or any of their respective successors or assigns (i) shall consolidate with or
merge into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger, (ii) shall
transfer or convey all or substantially all of its properties and assets to any Person, or (iii) winds up or dissolves, then, and
in each such case as a condition thereto, Parent or the Surviving Corporation (or their respective successors or assigns), as applicable,
shall, or Parent (or its successor or assign) shall cause ParentSub LLC (or its successor or assign) to, cause such Person to assume
(either by operation of law or by written instrument) all of the obligations set forth in this Section 6.10.
(d) The
provisions of this Section 6.10 are intended to be for the benefit of, and shall be enforceable by, each of the Indemnified
Parties, their heirs and their representatives. The rights of each Indemnified Party under this Section 6.10 shall be in
addition to, and not in substitution for, any other rights such individual may have under the Laws of the State of Delaware, any applicable
indemnification agreement to which such Person is a party, the Restated Company Certificate of Incorporation or the A&R Company Bylaws,
and Parent acknowledges and agrees that all rights to indemnification, advancement of expenses and exculpation from liabilities now existing
in favor of any Indemnified Party for actions or omissions occurring at or prior to the Effective Time shall continue in full force and
effect in accordance with their terms. The obligations of Parent, the Surviving Corporation and ParentSub LLC under this Section 6.10 shall
not be terminated or modified in such a manner as to materially and adversely affect the rights of any Indemnified Party to whom this
Section 6.10 applies unless (i) such termination or modification is required by applicable Law or (ii) the affected
Indemnified Party shall have consented in writing to such termination or modification (such consent not to be unreasonably delayed, withheld
or conditioned).
(e) Neither
Parent nor the Surviving Corporation shall, and Parent shall not permit ParentSub LLC to, settle, compromise or consent to the entry
of any judgment in any threatened or actual Proceeding relating to any acts or omissions covered under this Section 6.10
for which indemnification could be sought by an Indemnified Party hereunder, unless such settlement, compromise or consent includes an
unconditional release of such Indemnified Party from all liability arising out of such Proceeding or such Indemnified Party otherwise
consents in writing (such consent not to be unreasonably withheld, delayed or conditioned) to such settlement, compromise or consent.
(f) Nothing
in this Agreement is intended to, shall be construed to or shall release, waive or impair any rights to any directors’ and officers’
insurance claims under any policy that is or has been in existence with respect to the Company or any of its Subsidiaries, as applicable,
for any of their respective directors, officers or other employees, it being understood and agreed that the indemnification provided
for in this Section 6.10 is not prior to or in substitution for any such claims under such policies.
6.11 Takeover
Statute. If any Takeover Statute is or may become applicable to the Merger or the other transactions contemplated by this Agreement,
the Company and its board of directors (or any committee thereof) shall grant such approvals and take such actions as are necessary so
that such transactions may be consummated as promptly as practicable on the terms contemplated by this Agreement and otherwise use reasonable
best efforts to act to eliminate or minimize the effects of such statute or regulation on such transactions.
6.12 Control
of the Company’s or Parent’s Operations. Nothing contained in this Agreement shall give Parent or the Company, directly
or indirectly, rights to control or direct the operations of the other prior to the Effective Time. Prior to the Effective Time, each
of Parent and the Company shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision
of its operations.
6.13 Section 16(b).
Prior to the Effective Time, each of Parent and the Company shall take all such steps as may be required or as may be reasonably requested
by any party hereto (to the extent permitted under applicable Law) to cause any acquisitions from or dispositions to Parent or the Company
of shares of equity securities of Parent or the Company, as applicable, resulting from the transactions contemplated by the Transaction
Documents (including securities deliverable upon exercise, vesting or settlement of any Company Equity Awards or other derivative securities)
by each person who is subject to the reporting requirements of Section 16(a) of the Exchange Act with respect to Parent or
the Company and eligible for the exemption in Rule 16b-3 promulgated under the Exchange Act, respectively, to be exempt under Rule 16b-3
promulgated under the Exchange Act, including in accordance with that certain No-Action Letter dated January 12, 1999 issued by
the SEC regarding such matters.
6.14 Approval
by Sole Stockholder of Merger Sub. Immediately following the execution and delivery of this Agreement by the parties hereto, Parent
shall cause ParentSub LLC, as the sole stockholder of Merger Sub, to adopt this Agreement and approve the transactions contemplated hereby,
including the Merger, in accordance with the DCGL, by written consent. Parent shall cause ParentSub LLC to promptly deliver a copy of
such executed written consent to the Company. Parent agrees that it shall cause Merger Sub and ParentSub LLC to comply with all of their
respective obligations under this Agreement and under any other Transaction Documents.
6.15 Stockholder
Litigation. Prior to the Effective Time, the Company shall promptly advise Parent of any Proceeding commenced after the date hereof
against the Company or any of its directors by any stockholder of the Company relating to this Agreement and the transactions contemplated
hereby, including the Merger, and shall keep Parent reasonably informed on a reasonably current basis regarding any such Proceeding.
Prior to the Effective Time, Parent shall promptly advise the Company of any Proceeding commenced after the date hereof against Parent
or any of its directors by any stockholder of Parent relating to this Agreement and the transactions contemplated hereby, including the
Merger, and shall keep the Company reasonably informed on a reasonably current basis regarding any such Proceeding. Prior to the Effective
Time, each of the Company and Parent shall give the other party the opportunity to participate in (but not control) the defense and settlement
of any stockholder litigation against it and/or its officers or directors; provided, that neither the Company nor Parent shall
settle, compromise or enter into any agreement or arrangement, or consent to the entry of, or fail to defend against entry of, any order
or judgment, with respect to any such stockholder litigation without the prior written consent of the other party (such consent not to
be unreasonably withheld, conditioned or delayed); provided, that such prior written consent shall not be required for, and the
Company or Parent, as applicable, may enter into, any settlement, compromise, agreement, arrangement, order or judgment of such stockholder
litigation so long as such settlement, compromise, agreement, arrangement, order or judgment does not include an admission of liability
or wrongdoing on the part of, and does not impose any monetary or non-monetary remedy or relief against, the other party or any of the
other party’s current or former directors or officers (to the extent such individuals are a party to such stockholder litigation).
After the Effective Time, Parent may enter into any settlement, compromise, agreement, arrangement, order or judgment of such stockholder
litigation so long as such settlement, compromise, agreement, arrangement, order or judgment does not include an admission of liability
or wrongdoing on the part of, and does not impose any monetary or non-monetary remedy or relief against, any of the Company’s current
or former directors or officers (to the extent such individuals are a party to such stockholder litigation).
6.16 Treatment
of Exchangeable Debentures.
(a) To
the extent that all of the Exchangeable Debentures are not repurchased or exchanged prior to the Closing Date, the Company shall take
all reasonably necessary actions in accordance with the terms of the Exchangeable Senior Debentures Indenture, including the giving of
any notices that may be required in connection with any repurchases or exchange of Exchangeable Debentures, to consummate a “Change
in Control Redemption” (as such term is defined in the Exchangeable Senior Debentures Indenture) concurrently with (to the extent
such “Change in Control Redemption” is conditioned upon the consummation of the Closing) or promptly after the Effective
Time. From and after the announcement of a Change in Control Redemption, to the extent any Exchangeable Debentures are submitted for
exchange in connection with the “Change in Control Redemption,” the Company shall use its reasonable best efforts to comply
with its obligations under the Exchangeable Senior Debentures Indenture.
(b) Prior
to the Closing Date, in the event (i) any holder of the Exchangeable Debenture exercises its put right for the Company to repurchase
such holder’s Exchangeable Debentures pursuant to Section 12.01 or Section 12.02 of the Exchangeable Senior
Debentures Indenture in accordance with the terms thereof or (ii) any holder of any Exchangeable Debentures elects to exchange its
Exchangeable Debentures pursuant to ARTICLE XI of the Exchangeable Senior Debentures Indenture, then, in each case, (A) the
Company shall (subject to the receipt by the Company of cash funds under a Parent Loan Facility in the amounts contemplated by the immediately
succeeding clause (B)) repurchase or settle its exchange obligation with respect to such Exchangeable Debentures in full in cash
in accordance with the terms of the applicable Exchangeable Senior Debentures Indenture and (B) Parent (or its Subsidiaries) shall
make cash loans to the Company under a Parent Loan Facility no later than three (3) Scheduled Trading Days (as defined in the Exchangeable
Senior Debentures Indenture) prior to the applicable repurchase date or exchange settlement date in an amount (including reasonable fees
and expenses related thereto) no less than an amount (including reasonable fees and expenses related thereto) that the Company reasonably
determines is necessary to repurchase or settle its exchange obligation with respect to the applicable Exchangeable Debentures in full
in cash. Notwithstanding anything to the contrary in this Section 6.16(b), if (x) Parent and the Company reasonably
determine that the Closing will not occur on or prior to the 30 Scheduled Trading Days prior to March 27, 2025 or (y) any holder
of any Exchangeable Debentures elects to exchange its Exchangeable Debentures pursuant to ARTICLE XI of the Exchangeable
Senior Debentures Indenture and such exchange would be settled in cash prior to the Closing, Parent and the Company shall use their reasonable
best efforts to enter into definitive documents that govern the Parent Loan Facility no later than five (5) Scheduled Trading Days
prior to any applicable repurchase date or exchange settlement date contemplated by the immediately preceding sentence; provided,
that as a condition precedent to Parent entering into definitive documents for the Parent Loan Facility, the Company shall execute and
deliver to Parent Form FR G-3 and, to the extent reasonably requested by Parent, any updates thereto required by Regulation U.
(c) The
Company shall not exercise its right to redeem the Exchangeable Debentures under Section 11.16 of the Exchangeable Senior
Debentures Indenture without the prior written consent of Parent.
6.17 Treatment
of Forward Contract.
(a) The
Company shall (i) use commercially reasonable efforts to cause Company, LLC to provide all notices required to be delivered prior
to the Closing Date by Company, LLC, if any, pursuant to the Forward Contract related to or stemming from the Merger in a timely manner,
and to promptly forward to Parent all notices and communications received by it under the Forward Contract and (ii) cause Company,
LLC to use commercially reasonable efforts to negotiate an amendment, termination or similar arrangement to the Forward Contract effecting
the final and complete termination and/or settlement of the Forward Contract through the payment of all amounts and delivery of all shares
thereunder on or prior to the Closing Date such that no default, event of default or termination event could or would occur under the
Forward Contract if such payments and deliveries were made on or prior to such date (the “Forward Contract Amendment”).
Parent shall use commercially reasonable efforts to cooperate with the Company with respect to negotiating the Forward Contract Amendment,
and neither Company nor Company, LLC shall execute the Forward Contract Amendment without the prior written consent of Parent.
(b) Unless
otherwise instructed by Parent, the Forward Contract Amendment shall provide that the Collateral Shares (as defined in the Forward Contract)
shall be delivered to UBS AG, London Branch (the “Dealer”) or an affiliate of Dealer in order to maximize any cash
payment due pursuant to the Forward Contract and Forward Contract Amendment by the Dealer to Company, LLC or minimize any cash payment
due pursuant to the Forward Contract and Forward Contract Amendment by Company, LLC to Dealer.
6.18 Intended
Tax Treatment.
(a) The
parties hereto agree not to take any position on any Tax Return that is inconsistent with the Intended Tax Treatment for all U.S. federal
(and, if applicable, state and local) income tax purposes, except to the extent otherwise required pursuant to a “determination”
within the meaning of Section 1313(a) of the Code. From and after the date of this Agreement, each party hereto shall use its
reasonable best efforts to ensure the Intended Tax Treatment is respected and shall not knowingly take any action, cause or permit any
action to be taken, or fail to take any action, which action or failure to act could prevent the Intended Tax Treatment, except for any
actions expressly contemplated to be taken pursuant to this Agreement or any of the Transaction Documents.
(b) The
parties acknowledge and agree that solely for purposes of determining the value of Parent Common Stock to be received by the holders
of Series A Preferred Shares for purposes of measuring continuity of interest under Treasury Regulations Section 1.368-1(e)(2)(i) and
Revenue Procedure 2018-12, 2018-6 IRB 349 (“Rev. Proc. 2018-12”), (i) the “Safe Harbor Valuation Method”
will be the “Average of the Daily Volume Weighted Average Prices” as described in Section 4.01(1) of Rev. Proc.
2018-12, (ii) the “Measuring Period” (within the meaning of Section 4.02 of Rev. Proc. 2018-12) will be ten (10) consecutive
trading days ending on the Business Day prior to the date of this Agreement, (iii) the “specified exchange” (within
the meaning of Section 3.01(4) of Rev. Proc. 2018-12) will be Nasdaq and (iv) the “authoritative reporting source”
(within the meaning of Section 3.01(4) of Rev. Proc. 2018-12) will be Bloomberg L.P.
6.19 Amendment
of the Company Charter. Subject to the receipt of the Company Requisite Approval, the Company shall, prior to the Effective Time,
take all such actions as may be required to give effect to the Company Charter Amendment as of no later than immediately prior to the
Effective Time, including (but not limited to) filing or causing to be filed a Certificate of Amendment, setting forth the Company Charter
Amendment, in the form attached hereto as Exhibit C (the “Certificate of Amendment”), with the Secretary of State
of the State of Delaware in accordance with the DGCL.
6.20 Certain
Contract Terminations. At or prior to the Closing, the Company will cause the termination of the Contracts or arrangements set forth
on Section 6.20 of the Company Disclosure Letter in accordance with, and effective as of the times set forth in, Section 6.20 of
the Company Disclosure Schedule, without any cost or liability to the Company (or, after the Closing, Parent, the Surviving Corporation
and their respective Affiliates), in each case, except for any cost or liability that expressly survives the termination by their terms
or under applicable Law. Each of Parent and the Company agrees that effective upon the Effective Time (if it occurs), that certain Governance
Agreement, dated as of December 20, 2011, by and among Parent, Liberty Interactive Corporation and Barry Diller, is terminated and
will thereafter cease to be of any further force and effect, and, notwithstanding anything to the contrary contained therein, no party
thereto will thereafter have any rights, claims or obligations thereunder.
6.21 ParentSub
LLC Merger. Immediately following the Effective Time, Parent shall cause ParentSub LLC to effectuate the ParentSub LLC Merger in
accordance with Section 267 of the DGCL and Section 18-209(i) of the Delaware Limited Liability Company Act, and following
the consummation of the ParentSub LLC Merger, the separate corporate existence of the Surviving Corporation shall thereupon cease. ParentSub
LLC shall continue as the surviving company in the ParentSub LLC Merger, and the separate existence of ParentSub LLC with all of its
properties, rights, privileges, immunities, powers and franchises shall continue unaffected by the ParentSub LLC Merger. At the effective
time of the ParentSub LLC Merger, the effect of the ParentSub LLC Merger shall be as provided in the certificate of merger effecting
the ParentSub LLC Merger and the applicable provisions of the DGCL and the Delaware Limited Liability Company Act. Without limiting the
generality of the foregoing, and subject thereto, at such effective time, all of the property, rights, privileges, immunities, powers
and franchises of the Surviving Corporation shall vest in ParentSub LLC, and all debts, liabilities and duties of the Surviving Corporation
shall become the debts, liabilities and duties of ParentSub LLC.
6.22 Waiver
of Conflicts Regarding Representation.
(a) The
parties hereto agree that, notwithstanding any current or prior representation of (i) the Company (which, for the avoidance of doubt,
excludes the Surviving Corporation and ParentSub LLC) or any of its Subsidiaries, or any and all of their respective predecessors and
successors, (ii) officers or directors of the Company or any of its Subsidiaries as of immediately prior to the Effective Time,
(iii) former members of the Company Board, (iv) Maffei, (v) Liberty Media or (vi) any Covered Person (collectively,
the “Represented Persons”) or any of their respective Affiliates by O’Melveny, Baker Botts, Potter Anderson,
Sherman or Skadden, each of O’Melveny, Baker Botts, Potter Anderson, Sherman and Skadden will be allowed to represent any of the
Represented Persons or any of their respective Affiliates in any matters or disputes that, directly or indirectly, arise out of or relate
to the Transaction Documents or any of the transactions and matters contemplated hereby or thereby (including the transactions contemplated
by the Maffei Voting Agreement) (any such matter or dispute, a “Post-Closing Representation”). Parent does hereby,
and agrees to cause its controlled Affiliates (and agrees to use its reasonable best efforts to cause its other Affiliates) to, (A) agree
that O’Melveny, Baker Botts, Potter Anderson, Sherman and Skadden may each represent (and none of Parent or any of its Affiliates
or Representatives will seek to disqualify or otherwise prevent O’Melveny, Baker Botts, Potter Anderson, Sherman or Skadden from
representing) any of the Represented Persons or such Affiliates in connection with a Post-Closing Representation and (B) waive any
claim they have or may have that O’Melveny, Baker Botts, Potter Anderson, Sherman or Skadden has a conflict of interest or is otherwise
prohibited from engaging in a Post-Closing Representation, even if, in any case, the interests of the Represented Persons or such Affiliates
may be directly adverse to Parent or its Affiliates and even though O’Melveny, Baker Botts, Potter Anderson, Sherman or Skadden
may have represented the Represented Persons or such Affiliates in a matter substantially related to such dispute, or may be handling
ongoing matters for any of the Represented Persons or such Affiliates.
(b) Parent
acknowledges and agrees, on behalf of itself and its Affiliates, that (i) all Protected Information and all Privileged Information
(and, in each case, all rights and privileges related thereto) shall, subject to the terms of this Section 6.22, be excluded
from the assets possessed by the Company and its Subsidiaries at and after the Effective Time and shall be controlled and solely owned
by Liberty Media on behalf of all Represented Persons for all purposes of this Section 6.22 and Section 1 of the Liberty
Media Side Letter, and shall not pass to or be claimed by the Surviving Corporation, ParentSub LLC, Parent or its Affiliates, and (ii) notwithstanding
Section 6.6, neither the Company nor any of its Affiliates or Representatives shall be obligated to provide Parent or any
of its Affiliates, or any of their respective Representatives, with access to any Protected Information or any Privileged Information,
in each case, other than as provided in Section 6.22(c) below.
(c) To
the extent access to (i) some of the Protected Information (other than Privileged Information) described in clause (i), (ii) or
(iii) of the definition thereof is reasonably necessary (upon the advice of Parent’s external legal counsel acting
reasonably) or (ii) some of the Protected Information described in clause (i), (ii) or (iii) of the
definition thereof that constitutes Privileged Information is reasonably necessary, in either case, for or in furtherance of Parent’s
or its applicable Affiliates’ (A) defense against (or prosecution of) any Proceeding brought by or against (as applicable)
any third Person (which for the avoidance of doubt shall exclude the Represented Persons and their Affiliates), (B) only as to Protected
Information that is not Privileged Information, defense against (which may include bringing counterclaims) any Proceeding brought by
any Represented Persons or any of their Affiliates (for the avoidance of doubt, in the case of clauses (A) and (B),
including in connection with Parent’s or its Subsidiaries’ obligations under Section 6.18) or (C) compliance
with reporting, filing or other legal or regulatory requirements imposed on Parent or such Affiliates by a Governmental Entity having
jurisdiction over Parent or such Affiliates with respect to such matters, including for the avoidance of doubt through a discovery process
in which the applicable Governmental Entity requires production of such Protected Information (each of clause (A), (B) or
(C), a “Permitted Parent Access Circumstance”), Parent or such Affiliates, as applicable, shall be permitted
by Liberty Media (who, as described in Section 6.22(b) shall, subject to the terms of this Section 6.22,
have sole ownership and control of all Protected Information and all Privileged Information (and, in each case, all rights and privileges
related thereto) on behalf of all Represented Persons for all purposes of this Section 6.22 and Section 1 of the Liberty
Media Side Letter) access solely to such reasonably necessary portion of the Protected Information (“Necessary Information”);
provided, that, with respect to any such Necessary Information that also constitutes Privileged Information, (x) with respect
to any Permitted Parent Access Circumstance described in clause (A) or (C) above, such Privileged Information
will only be made available to Parent or its applicable Affiliates if Parent agrees not to (and does not), and agrees to use reasonable
best efforts to cause its Affiliates and Representatives not to (and they do not), disclose or use, or allow to be disclosed or used,
any such Privileged Information for any purpose, whatsoever, other than the applicable Permitted Parent Access Circumstance described
in clause (A) or (C) above, and (y) under no circumstances will access to such Privileged Information be
deemed reasonably necessary in connection with a Permitted Parent Access Circumstance described in clause (B) above. To the
extent any Privileged Information may be accessed pursuant to this Section 6.22(c), Parent and Liberty Media shall use reasonable
best efforts and cooperate with each other to enter into customary and reasonable joint defense, confidentiality, or similar arrangements
that, to the extent reasonably practicable, will preserve and protect the privileged nature of such Privileged Information from being
waived or impaired.
(d) For
the avoidance of doubt, except as expressly provided in Section 6.22(c), none of Parent, the Surviving Corporation, ParentSub
LLC or their respective Affiliates will have any rights or access to any Protected Information or any Privileged Information, wherever
maintained. Further, notwithstanding Section 6.22(c), none of Parent, the Surviving Corporation, ParentSub LLC or their respective
Affiliates will have any rights or access to any Privileged Information in the files of O’Melveny, Baker Botts, Potter Anderson,
Sherman or Skadden (for clarity, this sentence does not impact any rights or access to any such Privileged Information other than in
the files of such law firms (even if also in the files of such law firms)).
(e) This
Section 6.22 shall not apply to any information properly obtained by Parent or its Affiliates or their respective Representatives
other than pursuant to Section 6.22(c) and without any breach of this Agreement, which, for the avoidance of doubt,
shall include information obtained by Parent or its Affiliates or their respective Representatives in connection with litigation discovery
rights. Further, nothing contained in this Section 6.22 is intended to, and this Section 6.22 shall not in any
respect, limit or expand the rights and obligations of the parties hereto pursuant to Section 6.2. For the avoidance of doubt,
to the extent a Governmental Entity with jurisdiction over a relevant proceeding determines (notwithstanding the express intent of the
parties hereto set forth in this Section 6.22) to grant access to, or use of, any Protected Information (including Privileged
Information) to which Parent or its applicable Affiliates would not otherwise have the right to access or use pursuant to Section 6.22(c),
such access or use will be limited to that which has been mandated or determined by such Governmental Entity and will not serve as a
basis to restrict or limit any other rights or protections specified herein.
(f) This
Section 6.22 will be irrevocable, and no term of this Section 6.22 may be amended, waived or modified in respect
of any Protected Information or any Privileged Information without the prior written consent of Liberty Media, on behalf of the Represented
Persons. Any such amendment, waiver or modification of this Section 6.22 as to which no such consent is obtained shall be
null and void. This Section 6.22 is for the benefit of the applicable Represented Persons, Liberty Media and their respective
Affiliates, each of which is an intended third-party beneficiary of this Section 6.22 and will be entitled to enforce this
Section 6.22 against the parties hereto in such capacity.
(g) For
all purposes of this Section 6.22 and Section 1 of the Liberty Media Side Letter, references to Affiliates of Parent
shall include the Surviving Corporation following the Effective Time and ParentSub LLC following the ParentSub LLC Merger.
6.23 Voting
of Parent Common Stock. Without the prior written consent of Parent, from the date hereof until the earlier of (a) the Closing
and (b) the date that this Agreement is validly terminated, the Company irrevocably and unconditionally hereby agrees that at any
meeting (whether annual or special and each postponement, recess, adjournment or continuation thereof) of the holders of capital stock
of Parent (or any subset thereof) (such meeting, a “Parent Stockholder Meeting”), however called, and in connection
with any written consent of the holders of Parent Shares, the Company shall, and shall cause its Subsidiaries to: (i) appear at
such Parent Stockholder Meeting or otherwise cause all of the Parent Common Stock and Parent Class B Common Stock (collectively,
the “Parent Shares”) over which the Company (or any of its Subsidiaries) (A) has beneficial or record ownership
or (B) otherwise has the power to vote or direct the voting of, as of the applicable record date (collectively, the “Company
Parent Shares”), to be counted as present thereat for purposes of calculating a quorum, (ii) vote or cause to be voted
(including by proxy or execution of a written consent, as applicable) all such Company Parent Shares in a manner proportionally consistent
with the vote of the Parent Shares not owned by the Company or its officers or directors and (iii) not otherwise act by written
consent with respect to the Company Parent Shares, in each case except that this Section 6.23 shall not apply with respect
to any vote or written consent of the holders of Parent Shares to approve a Parent Acquisition Proposal in connection with which the
Company does not enter into a definitive Alternative Acquisition Agreement in accordance with Section 6.2(h). The Company
agrees not to, and shall cause its Subsidiaries not to, enter into any agreement or commitment with any person the effect of which would
violate, or frustrate the intent of, the provisions of this Section 6.23. The parties hereto agree that the Parent Loan Facility
and any enforcement under the definitive documentation for the Parent Loan Facility shall not constitute a violation of this Section 6.23.
ARTICLE VII
CONDITIONS
7.1 Conditions
to Each Party’s Obligation to Effect the Merger. The respective obligation of each party hereto to effect the Merger is subject
to the satisfaction or, to the extent permitted by applicable Law, waiver at or prior to the Closing of each of the following conditions:
(a) Stockholder
Approval. This Agreement and the Company Charter Amendment shall have been duly adopted by the requisite holders of Common Shares
and Series A Preferred Shares, as applicable, constituting the Company Requisite Approval in accordance with applicable Law and
the Restated Company Certificate of Incorporation and the A&R Company Bylaws.
(b) Company
Charter Amendment. The Company Charter Amendment shall have become effective pursuant to the filing of the Certificate of Amendment
with the Secretary of State of the State of Delaware prior to the Effective Time.
(c) Law.
No Governmental Entity of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any Law (whether temporary,
preliminary or permanent) that is in effect and restrains, enjoins or otherwise prohibits consummation of the Merger.
7.2 Conditions
to Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to effect the Merger are also subject to the satisfaction
or, to the extent permitted by applicable Law, waiver by Parent at or prior to the Closing of the following additional conditions:
(a) Representations
and Warranties. The representations and warranties of the Company set forth in (i) Section 4.1 (Organization, Good
Standing and Qualification), Section 4.3 (Corporate Authority) and Section 4.10 (Brokers and Finders) shall be
true and correct (read for purposes of this clause (i) without giving effect to any “materiality,” “Company
Material Adverse Effect” or similar qualification therein) in all material respects as of the date of this Agreement and as of
the Closing Date (in each case except to the extent that any such representation and warranty speaks as of a particular date, in which
case such representation and warranty shall be true and correct (read for purposes of this clause (i) without giving effect
to any “materiality,” “Company Material Adverse Effect” or similar qualification therein) as of such particular
date), (ii) Sections 4.2(a), (b) and (d) (Capital Structure) shall be true and correct, subject only
to de minimis inaccuracies, as of the date of this Agreement and as of the Closing Date (in each case except to the extent that
any such representation and warranty speaks as of a particular date, in which case such representation and warranty shall be true and
correct as of such particular date), (iii) the first sentence of Section 4.6 (Absence of Certain Changes) shall be true
and correct in all respects as of the date of this Agreement and as of the Closing Date and (iv) the other representations and warranties
of the Company set forth in ARTICLE IV shall be true and correct as of the date of this Agreement and as of the Closing Date
(except to the extent that any such representation and warranty speaks as of a particular date, in which case such representation and
warranty shall be true and correct as of such particular date), except where the failure of such representations and warranties of the
Company to be so true and correct (read for purposes of this clause (iv) without giving effect to any “materiality,”
“Company Material Adverse Effect” or similar qualification therein), individually or in the aggregate, has not had and would
not reasonably be expected to have a Company Material Adverse Effect.
(b) Performance
of Obligations of the Company. The Company shall have performed and complied with in all material respects all obligations required
to be performed and complied with by it under this Agreement at or prior to the Closing.
(c) Company
Certificate. Parent shall have received a certificate signed on behalf of the Company by a senior executive officer of the Company
to the effect that the conditions set forth in Section 7.2(a) and Section 7.2(b) have been satisfied.
7.3 Conditions
to Obligation of the Company. The obligation of the Company to effect the Merger is also subject to the satisfaction or waiver by
the Company at or prior to the Closing of the following additional conditions:
(a) Representations
and Warranties. (i) The representations and warranties of Parent and Merger Sub set forth in Section 5.1 (Organization,
Good Standing and Qualification), Section 5.3 (Corporate Authority; Approval) and Section 5.10 (Brokers and Finders)
of this Agreement shall be true and correct in all material respects as of the date of this Agreement and as of the Closing Date (except
for any representations and warranties that expressly relate to a specified date, which representation and warranty shall have been so
true and correct as of such particular date), (ii) the first sentence of Section 5.5 (Absence of Certain Changes) shall
be true and correct in all respects as of the date of this Agreement and as of the Closing Date and (iii) all other representations
and warranties of Parent and Merger Sub set forth in this Agreement shall be true and correct as of the date of this Agreement and as
of the Closing Date (except for any representations and warranties that expressly relate to a specified date, which representation and
warranty shall have been true and correct in all material respects as of such particular date), except where the failures of such representations
and warranties to be so true and correct (read for purposes of this clause (ii) without giving effect to any “materiality,”
“Parent Material Adverse Effect” or similar qualification therein), individually or in the aggregate, has not had, and would
not reasonably be expected to have, a Parent Material Adverse Effect.
(b) Performance
of Obligations of Parent and Merger Sub. Each of Parent and Merger Sub shall have performed and complied with in all material respects
all obligations required to be performed or complied with by it under this Agreement at or prior to the Closing.
(c) Parent
Certificate. The Company shall have received at the Closing a certificate signed on behalf of Parent by an officer of Parent to the
effect that the conditions set forth in Section 7.3(a) and Section 7.3(b) have been satisfied.
7.4 Frustration
of Conditions. None of the Company, Parent or Merger Sub may rely, either as a basis for not consummating the Merger or the other
transactions contemplated by this Agreement or for terminating this Agreement and abandoning the Merger, on the failure of any condition
set forth in Section 7.1, Section 7.2 or Section 7.3, as the case may be, to be satisfied if such
failure was caused by such party’s material breach of any provision of this Agreement.
ARTICLE VIII
TERMINATION
8.1 Termination
by Mutual Consent. This Agreement may be terminated and the Merger may be abandoned at any time prior to the Effective Time, whether
before or after the adoption of this Agreement by the stockholders of the Company referred to in Section 7.1(a), by mutual
written consent of the Company and Parent.
8.2 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 either Parent or the Company if:
(a) the
Merger shall not have been consummated by nine (9) months after the date of this Agreement (the “Termination Date”),
whether such date is before, on or after the date of adoption of this Agreement by the stockholders of the Company referred to in Section 7.1(a);
provided, that the right to terminate this Agreement pursuant to this Section 8.2(a) shall not be available to
any party if such party’s breach of or failure to perform its obligations under this Agreement materially contributed to, or resulted
in, the failure to consummate the transactions contemplated hereby by the Termination Date;
(b) the
approval of the adoption of this Agreement or the Company Charter Amendment by the stockholders of the Company referred to in Section 7.1(a) shall
not have been obtained at the Company Stockholders Meeting, or at any adjournment or postponement thereof, at which a vote upon the adoption
of this Agreement and of the Company Charter Amendment was taken; or
(c) any
Law permanently restraining, enjoining or otherwise prohibiting the consummation of the Merger shall have become final and non-appealable,
whether before, on or after receipt of the Company Requisite Approval; provided, that the right to terminate this Agreement pursuant
to this Section 8.2 shall not be available to any party that has breached in any material respect its obligations under this
Agreement in any manner that shall have proximately contributed to the failure of the Merger to be consummated.
8.3 Termination
by the Company. This Agreement may be terminated and the Merger may be abandoned at any time prior to the Effective Time by the Company
if:
(a) at
any time prior to the Effective Time there has been a breach of any representation, warranty, covenant or agreement made by Parent or
Merger Sub in this Agreement, or any representation and warranty shall have become untrue after the date of this Agreement, in any such
case, such that the conditions set forth in Section 7.3(a) or Section 7.3(b) would not be satisfied
and such breach or failure to be true is not curable or, if curable, is not cured prior to the earlier of (i) thirty (30) days following
written notice to Parent from the Company of such breach or failure and (ii) the Termination Date; provided, that the Company
shall not have the right to terminate this Agreement pursuant to this Section 8.3(a) if the Company is then in material
breach of any of its representations, warranties, covenants or agreements under this Agreement;
(b) at
any time prior to obtaining the Company Requisite Approval, in order to enter into an Alternative Acquisition Agreement in accordance
with Section 6.2(e), provided that prior to or substantially concurrently with such termination, the Company pays
to Parent the Company Termination Fee required to be paid pursuant to Section 8.5(b); or
(c) at
any time, in order to enter into an Alternative Acquisition Agreement in accordance with Section 6.2(h).
8.4 Termination
by Parent. This Agreement may be terminated and the Merger may be abandoned at any time prior to the Effective Time by Parent if:
(a) there
has been a breach of any representation, warranty, covenant or agreement made by the Company in this Agreement, or any such representation
and warranty shall have become untrue after the date of this Agreement, in any such case, such that the conditions set forth in Section 7.2(a) or
Section 7.2(b) would not be satisfied and such breach or failure to be true is not curable or, if curable, is not cured
prior to the earlier of (i) thirty (30) days following written notice to the Company from Parent of such breach or failure and (ii) the
Termination Date; provided, that Parent shall not have the right to terminate this Agreement pursuant to this Section 8.4(a) if
Parent is then in material breach of any of its representations, warranties, covenants or agreements under this Agreement; or
(b) prior
to obtaining the Company Requisite Approval, there shall have been a Change in Recommendation other than a Change in Recommendation made
pursuant to Section 6.2(h)(ii).
8.5 Effect
of Termination and Abandonment.
(a) In
the event of termination of this Agreement and the abandonment of the Merger pursuant to this ARTICLE VIII, this Agreement
(other than as set forth in this Section 8.5 and in Section 9.1) shall become void and of no effect with no liability
on the part of any party hereto (or of any of its respective Related Parties); provided, that no such termination shall relieve
any party hereto from any liability (i) for damages resulting from the Willful Breach prior to such termination by any party hereto
or (ii) as provided in this Section 8.5 (including, from any obligation to pay, if applicable, the Company Termination
Fee pursuant to Section 8.5(b) or Section 8.5(c)).
(b) If
this Agreement is terminated (i) by Parent pursuant to Section 8.4(b) (Change in Recommendation) or (ii) by
the Company pursuant to Section 8.3(b) (Termination for Superior Proposal), then the Company shall, within two (2) Business
Days after such termination in the case of clause (i) or prior to or substantially concurrently with such termination in
the case of clause (ii), pay to Parent, by wire transfer of immediately available funds, a fee equal to $16,310,000 (the “Company
Termination Fee”). Notwithstanding anything in this Agreement to the contrary, in no event shall any Company Termination Fee
be payable by or on behalf of the Company to Parent in connection with the termination of this Agreement pursuant to Section 8.3(c).
(c) If
(i) this Agreement is terminated (A) by Parent or the Company pursuant to Section 8.2(a) (Termination Date)
prior to the receipt of the Company Requisite Approval or Section 8.2(b) (Company Requisite Approval) or (B) by
Parent pursuant to Section 8.4(a) (Company Breach) as a result of a material breach of Section 6.2 (Acquisition
Proposals), (ii) prior to such termination referred to in clause (i) of this sentence, a bona fide Acquisition Proposal
shall have been publicly made or publicly announced to the Company or its board of directors (or any committee thereof), or shall have
been made directly to the Company’s stockholders generally and, in each case, not withdrawn and (iii) within twelve (12) months
after the date of a termination in either of the cases referred to in clauses (i)(A) and (i)(B) of this Section 8.5(c),
the Company consummates any Acquisition Proposal or enters into an Acquisition Proposal that is subsequently consummated, then the Company
shall pay the Company Termination Fee to Parent substantially concurrently upon the consummation of such Acquisition Proposal; provided,
that solely for purposes of this Section 8.5(c), references to “fifteen percent (15%) or more” in the definition
of Acquisition Proposal shall be deemed to be references to “fifty percent (50%) or more”.
(d) The
parties hereto acknowledge and hereby agree that the Company Termination Fee, if, as and when required pursuant to this Section 8.5,
shall not constitute a penalty but will be liquidated damages, in a reasonable amount that will compensate the party receiving such amount
in the circumstances in which it is payable for the efforts and resources expended and opportunities foregone while negotiating this
Agreement and in reliance on this Agreement and on the expectation of the consummation of the Merger, which amount would otherwise be
impossible to calculate with precision. The parties hereto acknowledge and hereby agree that in no event shall the Company be required
to pay the Company Termination Fee on more than one occasion.
(e) Each
party hereto acknowledges that the agreements contained in this Section 8.5 are an integral part of the transactions contemplated
by this Agreement, and that, without these agreements, no party would have entered into this Agreement; and accordingly, if the Company
or Parent fails to pay promptly any amount that may become due pursuant to Section 8.5(a), Section 8.5(b), or
Section 8.5(c) (any such amount due, a “Payment”), and, in order to obtain such Payment, Parent or
the Company commences a suit which results in a judgment against the Company or Parent, respectively, for the applicable Payment, or
any portion thereof, the party with such judgment against them shall pay to the other party its costs and expenses (including reasonable
attorneys’ fees) actually incurred in connection with such suit and any appeal relating thereto, together with interest on the
amount of the Payment, which shall accrue at the prime rate published in the Wall Street Journal, Eastern Edition, in effect on the date
such Payment was first required to be paid from such date through the date of full payment thereof.
(f) Notwithstanding
anything to the contrary in this Agreement, but subject to the proviso in Section 8.5(a) and Section 9.13,
in any circumstance in which this Agreement is terminated and Parent has the right to receive payment of the Company Termination Fee
in accordance herewith, the payment of the Company Termination Fee and, if applicable, the costs and expenses of Parent pursuant to Section 8.5(e) shall
be the sole and exclusive remedy of Parent, its Subsidiaries and Affiliates and any of their respective former, current or future general
or limited partners, stockholders, controlling Persons, managers, members, directors, officers, employees, Affiliates, representatives,
agents or any of their respective assignees or successors or any former, current or future general or limited partner, stockholder, controlling
Person, manager, member, director, officer, employee, Affiliate, representative, agent, assignee or successor of any of the foregoing
(the “Parent Related Parties”) against the Company, its Subsidiaries and Affiliates and any of their respective former,
current or future general or limited partners, stockholders, controlling Persons, managers, members, directors, officers, employees,
Affiliates, representatives, agents or any of their respective assignees or successors or any former, current or future general or limited
partner, stockholder, controlling Person, manager, member, director, officer, employee, Affiliate, representative, agent, assignee or
successor of any of the foregoing (collectively, “Company Related Parties” and together with the Parent Related Parties,
the “Related Parties”) for any loss or damage suffered as a result of the failure of the Merger and the other transactions
contemplated by this Agreement to be consummated or for a breach of, or failure to perform under, this Agreement or any certificate or
other document delivered in connection herewith or otherwise or in respect of any representation made or alleged to have been made in
connection herewith or therewith, and upon payment of such amounts, none of the Company Related Parties shall have any further liability
or obligation relating to or arising out of this Agreement (except that the Company shall remain obligated to pay to Parent any amount
due and payable pursuant to Section 8.5(e)), whether in equity or at Law, in contract, in tort or otherwise.
ARTICLE IX
MISCELLANEOUS AND GENERAL
9.1 Survival.
This ARTICLE IX and the agreements of the Company, Parent and Merger Sub contained in ARTICLE III, Section 6.10
(Indemnification; Directors’ and Officers’ Insurance) and Section 6.22 (Waiver of Conflicts Regarding Representation)
shall survive the consummation of the Merger. This ARTICLE IX (other than Section 9.2 (Modification or Amendment),
Section 9.3 (Waiver) and Section 9.12 (Assignment)) and the agreements of the Company, Parent and Merger Sub
contained in Section 6.6(b) (Access, Consultation), Section 6.9 (Expenses; Transfer Taxes) and Section 8.5 (Effect
of Termination and Abandonment) shall survive the termination of this Agreement. All other representations, warranties, covenants and
agreements in this Agreement and in any certificate or other writing delivered pursuant hereto shall not survive the consummation of
the Merger or the termination of this Agreement. This Section 9.1 shall not limit any covenant or agreement of the parties
which by its terms contemplates performance after the Effective Time.
9.2 Modification
or Amendment. Subject to the provisions of applicable Law, at any time prior to the Effective Time, this Agreement (including any
Schedule hereto) may be amended, modified or supplemented in writing by the parties hereto, by action of the boards of directors of the
respective parties and, with respect to Section 6.10 and Section 6.22, any other Person whose consent is required
to effect such amendment; provided, that after obtaining the Company Requisite Approval, there shall be no amendment, modification
or supplement to this Agreement which by applicable Law would require further approval by the Company’s stockholders without such
approval having first been obtained.
9.3 Waiver.
(a) Any
provision of this Agreement may be waived prior to the Effective Time if, and only if, such waiver is in writing and signed by the party
against whom the waiver is to be effective; provided, that after obtaining the Company Requisite Approval, there shall be no waiver
or extension which by applicable Law would require further approval by the Company’s stockholders without such approval having
first been obtained.
(b) No
failure or delay by any party in exercising any right, power or privilege hereunder shall operate as a waiver thereof nor shall any single
or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege. Except
as otherwise herein provided, the rights and remedies herein provided shall be cumulative and not exclusive of any rights or remedies
provided by Law.
9.4 Counterparts;
Effectiveness. This Agreement may be executed in any number of counterparts (including by facsimile or by attachment to electronic
mail in portable document format (PDF)), each such counterpart being deemed to be an original instrument, and all such counterparts,
taken together, shall constitute one and the same agreement, and shall become effective when one or more counterparts have been signed
by each of the parties hereto and delivered to the other parties hereto.
9.5 Governing
Law and Venue; Waiver of Jury Trial.
(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 DELAWARE WITHOUT REGARD TO THE CONFLICT OR CHOICE OF LAW PRINCIPLES THEREOF.
(b) Any
action, suit, arbitration or proceeding by or before any Governmental Entity (each, an “Action”) seeking to enforce
any provision of, or based on any matter arising out of or in connection with, this Agreement or any of the transactions contemplated
hereby, will be brought exclusively in the Court of Chancery of the State of Delaware (the “Delaware Chancery Court”)
or, if the Delaware Chancery Court does not have subject matter jurisdiction, any state or federal courts located in the State of Delaware
(and in each case, any appellate courts therefrom). Each of the parties hereto (i) irrevocably and unconditionally submits and consents
to the personal jurisdiction in any such Action brought in any such court (and of the appropriate appellate courts therefrom), (ii) irrevocably
agrees that it will not attempt to deny or defeat such personal jurisdiction by motion or other request for leave from any such courts,
(iii) irrevocably agrees that all claims in respect of such Action may be heard and determined in any such courts (and the appropriate
appellate courts therefrom) and agrees not to bring any Action arising out of or relating to this Agreement or any of the transactions
contemplated hereby in any courts other than the Delaware Chancery Court or, if such court lacks subject matter jurisdiction, any state
or federal court located in the State of Delaware and any appellate court therefrom, (iv) irrevocably waives, to the fullest extent
permitted by Law, any objection that it may now or hereafter have to the laying of the venue of any such Action in any such court (and
the appropriate appellate courts therefrom) or that such Action was brought in an inconvenient forum and agrees not to plead or claim
the same and (v) consents to service being made through the notice procedures set forth in Section 9.6. Each of the
Company, Parent and Merger Sub hereby agrees that service of any process, summons, notice or document by U.S. registered mail to the
respective addresses set forth in Section 9.6 shall be effective service of process for any Action in connection with this
Agreement or the transactions contemplated hereby.
(c) EACH
PARTY HERETO ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED
AND DIFFICULT ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY ACTION DIRECTLY OR INDIRECTLY ARISING OUT OF,
UNDER OR IN CONNECTION WITH OR RELATING TO THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. NOTWITHSTANDING ANYTHING
HEREIN TO THE CONTRARY, THE COMPANY (ON BEHALF ITSELF AND ITS SUBSIDIARIES) AND EACH OF THE OTHER PARTIES HERETO WAIVES ANY RIGHT TO
TRIAL BY JURY WITH RESPECT TO ANY ACTION RELATED TO ANY OF ITS SUBSIDIARIES IN CONNECTION WITH THE MERGER OR THE PERFORMANCE THEREOF
OR THE TRANSACTIONS CONTEMPLATED THEREBY. EACH PARTY HERETO CERTIFIES AND ACKNOWLEDGES THAT (i) NO REPRESENTATIVE, AGENT OR ATTORNEY
OF ANY OTHER PARTY HERETO HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF SUCH ACTION,
SEEK TO ENFORCE THE FOREGOING WAIVER, (ii) EACH SUCH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (iii) EACH
SUCH PARTY MAKES THIS WAIVER VOLUNTARILY AND (iv) EACH SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 9.5.
9.6 Notices.
Notices, requests, instructions or other documents to be given under this Agreement shall be in writing and shall be deemed given, (a) when
delivered, if delivered personally to the intended recipient, (b) when sent by email (without any “bounceback” or other
notice of nondelivery) and (c) one (1) Business Day later, if sent by overnight delivery via a national courier service (providing
proof of delivery), and in each case, addressed to a party at the following address for such party:
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if to Parent or Merger Sub: |
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Tripadvisor, Inc. |
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400 1st Avenue |
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Needham, MA 02494 |
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Attention: |
Seth J. Kalvert |
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Email: |
[Separately provided] |
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with copies to (which shall not constitute notice): |
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Weil, Gotshal & Manges LLP |
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767 Fifth Avenue |
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New York, New York 10153 |
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Attention: |
Michael J. Aiello;Matthew J. Gilroy |
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Email: |
michael.aiello@weil.com; matthew.gilroy@weil.com |
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if to the Company: |
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Liberty TripAdvisor Holdings, Inc. |
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12300 Liberty Boulevard |
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Englewood, CO 80112 |
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Attention: |
Chief Legal Officer |
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Email: |
[Separately provided] |
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with copies to (which shall not constitute notice): |
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O’Melveny & Myers LLP |
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Two Embarcadero Center, 28th Floor |
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San Francisco, CA 94111 |
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Attention: |
C. Brophy Christensen; Noah Kornblith |
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Email: |
bchristensen@omm.com; nkornblith@omm.com |
or to such other persons or addresses as may
be designated in writing by the party to receive such notice as provided above.
9.7 Entire
Agreement. This Agreement (including any exhibits hereto), the Certificate of Merger and the Certificate of Amendment and any other
certificate or instrument to be delivered hereunder, collectively constitute the entire agreement, and supersede all other prior agreements,
understandings, representations and warranties both written and oral, among the parties, with respect to the subject matter hereof. Notwithstanding
the foregoing or any other provision of this Agreement to the contrary, the Company Disclosure Letter are “facts ascertainable”
as that term is used in Section 251(b) of the DGCL, and do not form part of this Agreement but instead operate upon the terms
of this Agreement as provided herein.
9.8 No
Third Party Beneficiaries. This Agreement is not intended to, and does not and shall not be deemed to, confer upon any Person other
than the parties hereto any rights or remedies hereunder, other than (a) as provided in Section 6.10 (Indemnification;
Directors’ and Officers’ Insurance) and Section 6.22 (Waiver of Conflicts Regarding Representation), (b) the
right of the Company’s stockholders to receive the Merger Consideration after the Closing, (c) the right of the holders of
awards under the Company Stock Plans to receive such consideration as provided for in Section 3.5 after the Closing, (d) Section 8.5(f) (Liability
of Company Related Parties), Section 9.5 (Governing Law and Venue; Waiver of Jury Trial) and this Section 9.8
(No Third Party Beneficiaries), which, to the extent applicable to the Company Related Parties, are intended to benefit and be enforceable
by the Company Related Parties, and (e) the right of the Company on behalf of the Company stockholders to pursue damages (including
claims for damages based on loss of the economic benefits of the transactions to the Company stockholders) in the event of Parent’s
or Merger Sub’s failure to effect the Merger as required by this Agreement or a material breach of this Agreement that contributed
to a failure of any of the conditions to the Closing from being satisfied, which right is hereby expressly acknowledged and agreed by
each of Parent and Merger Sub, each of whom shall each be jointly and severally liable for any such damages for which Parent or Merger
Sub are found liable. The third-party beneficiary rights referenced in clause (e) of the preceding sentence may be exercised
only by the Company (on behalf of the Company stockholders as their agent) through actions expressly approved by the Company Board (or
any committee thereof), and no Company stockholder, whether purporting to act in its capacity as a stockholder or purporting to assert
any right (derivatively or otherwise) on behalf of the Company, shall have any right or ability to exercise or cause the exercise of
any such right.
9.9 Obligations
of Parent and of the Company. Whenever this Agreement requires a Subsidiary of Parent to take any action, such requirement shall
be deemed to include an undertaking on the part of Parent to cause such Subsidiary to take such action. Whenever this Agreement requires
a Subsidiary of the Company (which, for the avoidance of doubt, shall exclude Parent and its Subsidiaries) to take any action, such requirement
shall be deemed to include an undertaking on the part of the Company to cause such Subsidiary to take such action and, after the Effective
Time, on the part of Parent, the Surviving Corporation and ParentSub LLC to cause such Subsidiary to take such action.
9.10 Severability.
The provisions of this Agreement shall be deemed severable and in the event any court of competent jurisdiction or arbitral panel finds
any provision hereof to be invalid or unenforceable, such invalidity or enforceability shall not affect the validity or enforceability
of the other provisions hereof. If any provision of this Agreement, or the application thereof to any Person or any circumstance, is
found to be invalid or unenforceable, (a) a suitable and equitable provision negotiated in good faith by the parties hereto shall
be substituted therefor in order to carry out, so far as may be valid and enforceable, the intent and purpose of such invalid or unenforceable
provision and (b) the remainder of this Agreement and the application of such provision to other Persons or circumstances shall
not, subject to clause (a) above, be affected by such invalidity or unenforceability, except as a result of such substitution,
nor shall such invalidity or unenforceability affect the validity or enforceability of such provision, or the application thereof, in
any other jurisdiction.
9.11 Interpretation.
(a) The
table of contents and the Article, Section and paragraph headings or captions herein are for convenience of reference only, do not
constitute part of this Agreement and shall not be deemed to limit or otherwise affect any of the provisions hereof. Where a reference
in this Agreement is made to a Section or Exhibit, such reference shall be to a Section of or Exhibit to this Agreement
unless otherwise indicated. Whenever the words “include”, “includes” or “including” are used in this
Agreement, they shall be deemed to be followed by the words “without limitation”. The words “hereof”, “herein”
and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not
to any particular provision of this Agreement. The word “or” when used in this Agreement is not exclusive. 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”. All terms defined in this Agreement shall have the defined meanings when used in any certificate or other
document made or delivered pursuant hereto unless otherwise defined therein. The definitions contained in this Agreement are applicable
to the singular as well as the plural forms of such terms and to the masculine as well as to the feminine and neuter genders of such
term. Any Contract or Law defined or referred to herein or in any agreement or instrument that is referred to herein means such Contract
or Law as from time to time amended, modified or supplemented, including (in the case of Contracts) by waiver or consent and (in the
case of Laws) by succession of comparable successor statutes and references to all attachments thereto and instruments incorporated therein.
Unless otherwise specified, references in this Agreement to “USD,” “$” or “dollars” or “$”
shall refer to U.S. dollars. References to assets, liabilities and businesses of the Company when used in this Agreement shall in all
cases exclude the assets, liabilities and businesses of Parent and its Subsidiaries.
(b) Any
Contract or information referred to herein shall be deemed to have been “delivered”, “provided”, “furnished”
or “made available” (or any phrase of similar import) to Parent by the Company if such Contract or information was posted
to the data room maintained by the Company in connection with the transaction or otherwise provided directly (including through email)
to Parent or any of its Representatives by 5:00 p.m. Eastern Time on the day prior to the execution and delivery of this Agreement.
When calculating the period of time before which, within which or following which any act is to be done or step taken pursuant to this
Agreement, the date that is the reference date in calculating such period shall be excluded. If the last day of any such period is a
day other than a Business Day, the period in question shall end and any such step shall be taken by or on the next succeeding Business
Day.
(c) The
parties have participated jointly in negotiating and drafting this Agreement. In the event that an ambiguity or a question of intent
or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties, and no presumption or burden of proof
shall arise favoring or disfavoring any party by virtue of the authorship of any provision of this Agreement.
(d) For
all purposes of this Agreement, each party hereto acknowledges and agrees that none of the representations and warranties set forth in
ARTICLE IV or in any certificate delivered by the Company pursuant hereto (including with respect to the condition set forth
in Section 7.2(c)) are being made with respect to Parent or any of its Subsidiaries, or the respective businesses of Parent
or any of its Subsidiaries, and that Parent and its Subsidiaries, and the respective businesses of Parent and its Subsidiaries shall
be excluded from the representations and warranties set forth in ARTICLE IV and in any certificate delivered by the Company
pursuant hereto for all purposes of this Agreement (including for purposes of Section 7.2(c)), except that this sentence
shall not limit any representations or warranties herein by the Company regarding the Company’s or any of its Subsidiaries’
ownership of Parent Common Stock or Parent Class B Common Stock.
9.12 Assignment.
This Agreement shall not be assigned by operation of law or otherwise without the prior written consent of each of the other parties
hereto, and any assignment without such consent shall be null and void; provided, that, without the consent of any other party
hereto, Liberty Media may assign all of its rights and obligations (in full, and together, not in part or separately) under Section 6.22 (other
than Section 6.22(a)) and Section 1 of the Liberty Media Side Letter to any other Covered Person (who, at the time of
such assignment is a publicly traded company on Nasdaq or the New York Stock Exchange with a market capitalization of at least $2,000,000,000)
and that irrevocably agrees to expressly assume all such rights and obligations (including in respect of any breaches of such obligations
by Liberty Media prior to such assignment) in a signed instrument for the benefit of Parent and the Company (which must be delivered
to Parent and the Company at least five (5) Business Days in advance of the effective date of any such assignment), in which such
assignee Covered Person and Liberty Media each represent and warrant (without qualification or limitation) to Parent and the Company
that such assignee Covered Person has sole ownership of and control over all Protected Information (to the same degree as Liberty Media
prior to such assignment) on behalf of all Represented Persons for all purposes of Section 6.22 and Section 1 of the
Liberty Media Side Letter and the wherewithal to be legally, financially and practically capable of fulfilling the assumed obligations
of Liberty Media (including in respect of any breaches of such obligations by Liberty Media prior to such assignment), and following
such delivery of such irrevocable written instrument to Parent and the Company by Liberty Media and such Represented Person, upon the
effectiveness of such assignment, Liberty Media shall be automatically replaced with such Covered Person for all such purposes under
Section 6.22 (other than Section 6.22(a)) and Section 1 of the Liberty Media Side Letter. For the avoidance
of doubt, notwithstanding any such assignment, Liberty Media shall continue to be a Represented Person in its own right under Section 6.22 and
a third party beneficiary of Section 6.22 in such capacity. Any assignment in violation of the preceding sentence shall be
void. Subject to the preceding two sentences, this Agreement will be binding upon, inure to the benefit of, and be enforceable by, the
parties hereto and their respective successors and assigns.
9.13 Specific
Performance. The parties hereto acknowledge and agree that irreparable damage would occur and that the parties would not have any
adequate remedy at law in the event that any of the obligations, undertakings, covenants or agreements of the parties to this Agreement
were not performed in accordance with their specific terms or were otherwise breached, and that monetary damages, even if available,
would not be an adequate remedy therefor. It is accordingly agreed that the Company, on the one hand, and Parent, on the other hand,
shall be entitled to an injunction or injunctions to prevent breaches or threatened breaches of this Agreement by the other party, and
to enforce specifically the terms and provisions of this Agreement (including Section 6.5, and including to cause Parent
and Merger Sub to consummate the Merger and the Closing and to make the payments contemplated by this Agreement, including ARTICLE I and
ARTICLE III) by a decree of specific performance, in accordance with Section 9.5 of this Agreement, without the
necessity of proving actual harm or damages or posting a bond or other security therefor, this being in addition to any other remedy
to which such party is entitled at law or in equity, and each party agrees that it will not oppose the granting of an injunction, specific
performance or other equitable relief on the basis that any other party has an adequate remedy at law or that any award of specific performance
or other equitable remedy is not an appropriate remedy for any reason at law or in equity. Without limitation of the foregoing, the parties
hereby further acknowledge and agree that prior to the Closing, the Company shall be entitled to specific performance to enforce specifically
the terms and provisions of, and to prevent or cure breaches of the covenants required to be performed by Parent and Merger Sub under
this Agreement (including Section 6.5, and including to cause Parent and Merger Sub to consummate the Merger and the Closing
and to make the payments contemplated by this Agreement, including ARTICLE I and ARTICLE III) in addition to
any other remedy to which the Company is entitled at law or in equity, including the Company’s right to terminate this Agreement
pursuant to ARTICLE VIII and money damages (including damages based on loss of the expected economic benefits of the transaction
to the Company). Each party hereto further agrees that it shall not take any position in any legal proceeding concerning this Agreement
that is contrary to the terms of this Section 9.13. Parent shall cause Merger Sub and each of their respective Affiliates
to perform their respective obligations under this Agreement.
9.14 No
Recourse. This Agreement may only be enforced against, and any 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. To the fullest extent
permitted by applicable Law, no past, present or future director, officer, employee, incorporator, manager, member, general or limited
partner, stockholder, equityholder, controlling person, Affiliate, agent, attorney or other Representative of any party hereto or any
of their successors or permitted assigns or any direct or indirect director, officer, employee, incorporator, manager, member, general
or limited partner, stockholder, equityholder, controlling person, Affiliate, agent, attorney, Representative, successor or permitted
assign of any of the foregoing (each, a “Non-Recourse Party”), shall have any liability for any obligations or liabilities
of any party under this Agreement or for any Proceeding (whether in tort, contract or otherwise) based on, in respect of or by reason
of the transactions contemplated hereby or in respect of any written or oral representations made or alleged to be made in connection
herewith.
9.15 Definitions.
For purposes of this Agreement, the following terms, when used herein, shall have the respective meanings set forth below:
“Acceptable Confidentiality
Agreement” means a confidentiality agreement to which the Company is a party that is executed, delivered and effective after
the date of this Agreement containing provisions that require any counterparty thereto (and any of its Affiliates and Representatives
referred to therein) that receive non-public information of or with respect to the Company to keep such information confidential (subject
to customary exceptions); provided, that such confidentiality agreement need not contain a standstill restriction.
“Acquisition Proposal”
means (a) any proposal, offer, inquiry or indication of interest (other than a proposal, offer, inquiry or indication of interest
by Parent or a Subsidiary of Parent), from any Person or group (as defined in or under Section 13 of the Exchange Act) relating
to a merger, consolidation, dissolution, liquidation, tender offer, recapitalization, reorganization, share exchange, business combination,
joint venture, partnership, dissolution, liquidation, spin-off, extraordinary dividend or similar transaction involving the Company or
any of its Subsidiaries which is structured to permit any Person or group to, directly or indirectly, acquire beneficial ownership of
fifteen percent (15%) or more of the aggregate outstanding equity securities of the Company (or the surviving or resulting entity) or
securities representing fifteen percent (15%) or more of voting power of the Company (or the surviving or resulting entity), or fifteen
percent (15%) or more of the consolidated total assets of the Company and its Subsidiaries and (b) any acquisition by any Person
or group (as defined in or under Section 13 of the Exchange Act) resulting in, or proposal, offer, inquiry or indication of interest
(other than a proposal, offer, inquiry or indication of interest by Parent or a Subsidiary of Parent), which if consummated would result
in, any Person or group becoming the beneficial owner of, directly or indirectly, in one or a series of related transactions, fifteen
percent (15%) or more of the aggregate outstanding equity securities or securities representing fifteen percent (15%) or more of the
voting power of the Company, or fifteen percent (15%) or more of the consolidated total assets of the Company and its Subsidiaries, in
each case, other than the transactions contemplated by this Agreement.
“Affiliate”
means, when used with respect to any party, any Person who is an “affiliate” of that party within the meaning of Rule 405
promulgated under the Securities Act; provided, that, for purposes of this Agreement (a) prior to the Effective Time, none
of Parent or any of its Subsidiaries shall be deemed to be Affiliates of the Company or any of its Subsidiaries, (b) prior to the
Effective Time, none of the Company or any of its Subsidiaries shall be deemed to be Affiliates of Parent or any of its Subsidiaries,
(c) none of the Persons listed in the following clauses (i) – (vi) shall be deemed to be Affiliates of the
Company or its Subsidiaries or any of their respective Investees or any Person listed in any other such clause: (i) Qurate Retail, Inc.
taken together with its Subsidiaries and any of their respective Investees, (ii) Liberty Global plc taken together with its Subsidiaries
and any of their respective Investees, (iii) Liberty Latin America Ltd. taken together with its Subsidiaries and any of their respective
Investees, (iv) Atlanta Braves Holdings, Inc. taken together with its Subsidiaries and any of their respective Investees, (v) Liberty
Media taken together with its Subsidiaries and any of their respective Investees, (vi) Liberty Broadband Corporation taken together
with its Subsidiaries and any of their respective Investees, and (vii) any entity that is a spinoff of any of the entities listed
in the immediate clauses (i) – (vi) taken together with any of their Subsidiaries and any of their respective
Investees, and (d) neither Certares nor any of its Affiliates, including any portfolio company (as such term is commonly understood
in the private equity industry) of a fund managed by Certares or its Affiliates, will be deemed to be an Affiliate of the Company or
any of its Subsidiaries or any of their respective Investees. For purposes of this definition, and for the avoidance of doubt, (A) natural
persons shall not be deemed to be Affiliates of each other and (B) no Person shall be an Affiliate of any other Person solely because
they share one or more common officers or members of their respective board of managers, board of directors or other controlling governing
body.
“Antitrust Laws”
means the Sherman Antitrust Act of 1890, as amended, the Clayton Antitrust Act of 1914, as amended, the HSR Act, the Federal Trade Commission
Act of 1914, as amended, and all other federal, state and foreign statutes, rules, regulations, orders, decrees and 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
competition, including but not limited to the Foreign Competition Laws.
“Baker Botts”
means Baker Botts L.L.P.
“Beneficially Own,”
“Beneficial Owner” and “Beneficial Ownership” and words of similar import have the meanings assigned
to such terms in Rule 13d-3 and Rule 13d-5 promulgated under the Exchange Act, and a Person’s Beneficial Ownership of
securities shall be calculated in accordance with the provisions of such rules.
“Business Day”
means any day of the year on which banks are not required or authorized by Law to close in New York City, NY.
“Carrying Credit”
means “carrying credit” as defined under Regulation U, which, for the avoidance of doubt, means credit that enables a customer
to maintain, reduce, or retire indebtedness originally incurred to purchase a security that is currently a Margin Stock.
“Certares”
means Certares Management LLC and its Affiliates.
“Certares Side Letter”
means the agreement, dated as of the date hereof, from the Company to Certares.
“Company, LLC”
means Liberty TripAdvisor, LLC, a Delaware limited liability company.
“Company Equity Awards”
means the Options and the Cash Awards.
“Company Intellectual
Property” means, individually or collectively, the Company Owned IP and the Company Licensed IP.
“Company Licensed
IP” means all Intellectual Property under which the Company has been granted any license or other right with respect thereto
pursuant to an IP License, except for any Company Owned IP.
“Company
Material Adverse Effect” means any change, event, development, circumstance or effect that individually or taken together with
any other change, event, development, circumstance or effect has, or would reasonably be expected to have, a material adverse effect
on the business, assets, condition (financial or otherwise), properties, liabilities, operations or results of operations of the Company
and its Subsidiaries, taken as a whole; provided, however, that none of the following shall be deemed, either alone or
in combination, to constitute, and there shall not be taken into account in determining whether there has been or would reasonably be
expected to be a Company Material Adverse Effect: (a) changes in, or events generally affecting, the U.S. or global financial, securities
or capital markets, (b) general economic or political conditions in the United States or any foreign jurisdiction in which the Company
or any of its Subsidiaries operate, including any changes in currency exchange rates, interest rates, credit availability and liquidity,
trading volumes, monetary policy or inflation, (c) changes in, or events generally affecting, the industries in which the Company
or any of its Subsidiaries operate, (d) any natural or man-made disaster or acts of God, including earthquakes, floods, hurricanes,
tornados, volcanic eruption, epidemics, pandemics or disease outbreak (including COVID-19) or any outbreak or escalation of hostilities,
civil disobedience, acts of terrorism, sabotage, riots, demonstrations, public disorders, military action or war (whether or not declared)
or any other national or international calamity or any escalation or worsening thereof, (e) any failure by the Company or any of
its Subsidiaries to meet any internal or published budgets, projections, estimates, forecasts or predictions in respect of financial
or operating performance for any period, (f) a decline in the price of the Shares, or a change in the trading volume of the Shares,
on the OTC, (g) any change, event, development, circumstance or effect that, individually or in the aggregate, has had, or would
reasonably be expected to have, a material adverse effect on the price of the Parent Shares owned by the Company or its Subsidiaries,
provided that the exceptions in clauses (e), (f) and (g) shall not prevent or otherwise affect
a determination that any change, event, effect, circumstance or development underlying such failure or decline or change, event, development,
circumstance or effect (if not otherwise falling within any of the exclusions pursuant to the other clauses of this definition) has resulted
in, or contributed to, a Company Material Adverse Effect, (h) changes in Law (or interpretation thereof), including in the repeal
thereof, or in the enforcement thereof, (i) changes in U.S. generally accepted accounting principles (“GAAP”)
(or authoritative interpretation thereof), including in the repeal thereof, or in the enforcement thereof, (j) the taking of any
specific action expressly required by this Agreement or taken with Parent’s written consent or the failure to take any specific
action expressly prohibited by this Agreement and as for which Parent declined to consent, (k) the announcement, pendency
or consummation of the Transaction Documents or the transactions contemplated hereby or thereby, including the impact thereof on the
relationships with customers, suppliers, distributors, partners, other third parties with whom the Company has a relationship or employees
(including, but not limited to, any cancellation of or delays in customer orders, any reduction in sales, any disruption in or loss of
customer, supplier, distributor, partner or similar relationships, or any loss of employees) (it being understood and agreed that this
clause (k) shall not apply with respect to any representation or warranty that is intended to address the consequences
of the execution, delivery or the announcement of the Transaction Documents or the consummation of the transactions hereby or thereby),
(l) any litigation brought by stockholders of the Company alleging breach of fiduciary duty or inadequate disclosure in connection
with this Agreement or any of the transactions contemplated hereby, (m) the departure or threatened departure of, or adverse change
or threatened adverse change in, the relationship of the Company or any of its Subsidiaries with its employees or (n) any matters
disclosed in Section 9.15(a) of the Company Disclosure Letter; provided, however, that the changes, events,
effects, circumstances or developments set forth in the foregoing clauses (a), (b), (c), (d), (h) and
(i) shall be taken into account in determining whether a “Company Material Adverse Effect” has occurred to the
extent such changes, events, effects, circumstances or developments have had a disproportionate adverse effect on the Company and its
Subsidiaries, taken as a whole, relative to other participants in the industries in which the Company and its Subsidiaries operate, but,
in such event, only the incremental disproportionate impact of such changes, events, effects, circumstances or developments shall be
taken into account in determining whether a “Company Material Adverse Effect” has occurred; provided, however,
that Parent’s and its Subsidiaries’ businesses, assets, conditions (financial or otherwise), properties, liabilities, operations
and/or results of operations and any change, event, effect, circumstance or development with respect thereto shall be excluded for purposes
of any determination as to the existence of a Company Material Adverse Effect.
“Company Owned IP”
means all Intellectual Property owned or purported to be owned by the Company, including the Registered IP.
“Company Plan”
means any benefit and compensation plan, policy, program or arrangement maintained, sponsored or contributed to by the Company or any
of its Subsidiaries covering current or former employees of the Company and its Subsidiaries and current or former directors of the Company,
including “employee benefit plans” within the meaning of Section 3(3) of the Employee Retirement Income Security
Act of 1974, as amended (“ERISA”), and any incentive and bonus, deferred compensation, stock purchase, employment,
retirement, severance, restricted stock, stock option, stock appreciation rights or stock based plans, excluding any statutory plans.
“Company Section 16
Officer” means any person that the Company has determined to be an “officer” of the Company within the meaning
of Rule 16a-1(f) of the Exchange Act.
“Company Stock Plan(s)”
means each of the Company’s (a) 2019 Omnibus Incentive Plan and (b) 2014 Omnibus Incentive Plan.
“Covered Person”
means the Persons listed on Section 9.15(b) of the Company Disclosure Letter.
“COVID-19”
means SARS-CoV-2 or COVID-19, and any evolutions or mutations thereof or related or associated epidemics, pandemic or disease
outbreaks.
“Disinterested Stockholders”
means the holders of the outstanding Shares, other than any outstanding Shares beneficially owned, directly or indirectly, by (a) Parent
and its Subsidiaries, (b) Maffei and his Affiliates, (c) the members of the Parent Board and the Parent Section 16 Officers,
(d) the members of the Company Board and the Company Section 16 Officers or (e) the immediate family members (as defined
in Item 404 of Regulation S-K) of any of the foregoing.
“Exchange Rates”
means the exchange rates that appear on the Bloomberg screen at or about 9:00 a.m. New York time on the Business Day immediately
preceding the date of determination.
“Exchangeable Debentures”
means the 0.50% Exchangeable Senior Debentures due 2051.
“Exchangeable Senior
Debentures Indenture” means the Indenture, dated as of March 25, 2021, by and between the Company and U.S. Bank National
Association, as trustee, as amended or supplemented on or prior to the date of this Agreement pursuant to which Company issued the Exchangeable
Debentures.
“Federal Reserve Board”
means the Board of Governors of the Federal Reserve System.
“Forward Contract”
means that certain contract providing for a variable price forward transaction, dated March 9, 2020, by and among Company, LLC,
Credit Suisse Capital LLC and Credit Suisse Securities (USA) LLC, as subsequently novated to UBS AG, London Branch and UBS Securities
LLC on May 13, 2024, as amended by that certain letter agreement dated August 10, 2022.
“Indebtedness”
means, with respect to any Person, without duplication, all obligations or undertakings by such Person (a) for borrowed money
(including deposits or advances of any kind to such Person); (b) evidenced by bonds, debentures, notes or similar instruments; (c) for
capitalized leases or to pay the deferred and unpaid purchase price of property or equipment (provided, that the application of
GAAP shall be interpreted as if FASB Accounting Standards Codification Topic 842, Accounting for Leases, had not taken effect); (d) pursuant
to securitization or factoring programs or arrangements; (e) under swaps, options, derivatives and other hedging agreements, transactions
or arrangements (assuming they were terminated on the date of determination); (f) under letters of credit, bank guarantees, performance
bonds and surety bonds, but, in each case, only to the extent they have been drawn upon and (g) pursuant to guarantees and arrangements
having the economic effect of a guarantee of any Indebtedness of any other Person of the type described in clauses (a) through
(f). Notwithstanding the foregoing, “Indebtedness” shall not include (i) any obligations that are solely between
and among any of the Company and its wholly owned Subsidiaries, (ii) any deferred revenue and (iii) any obligations associated
with lease classified as operating leases in the Company Reports. For Indebtedness payable in non-United States dollars, the amount of
such Indebtedness will be determined by using the Exchange Rates to denominate the value of such Indebtedness in United States dollars.
“Intellectual
Property” means any and all right, title and interest in or relating to intellectual property, whether protected, created
or arising under the Laws of the United States or any other jurisdiction, including all: (a) patents and patent applications; (b) trademarks,
service marks, logos, trade names, corporate names and other indicators of the commercial source or origin of a product or service, together
with all goodwill associated with any of the foregoing (collectively, “Marks”); (c) trade secret rights and corresponding
rights in confidential information and other non-public or proprietary information (collectively, “Trade Secrets”);
(d) copyrights and copyrightable works, and all database rights; (e) Internet domain names; (f) intellectual property
rights arising from software and technology; and (g) any and all similar, corresponding or equivalent intellectual or proprietary
rights arising under the Laws of any jurisdiction throughout the world or pursuant to any international convention.
“Intervening Event”
means a material effect that (a) was not known to, or reasonably foreseeable by, the Company Board (or any committee thereof) prior
to the execution of this Agreement (or if known or reasonably foreseeable, the material consequences of which were not known or reasonably
foreseeable), which effect, or any material consequence thereof, first becomes known to, or reasonably foreseeable by, the Company Board
(or any committee thereof) prior to the receipt of the Company Requisite Approval and (b) does not relate to (i) an Acquisition
Proposal, (ii) any fact, event, change, development or circumstance to the extent relating to Parent or any of its Subsidiaries,
(iii) any changes in the market price, trading volume or ratings of any securities or Indebtedness of the Company or Parent, (iv) any
failure by the Company, Parent or their Subsidiaries to meet internal or published or analysts’ estimates or financial projections,
budgets or forecasts of revenues, earnings or other financial or operating metrics for any period, in each case in and of itself (it
being understood that the facts or occurrences giving rise or contributing to such change described in clause (ii) and clause
(iii) may be taken into account when determining an Intervening Event to the extent otherwise satisfying this definition).
“Investee”
of any Person means any Person in which such first Person owns or controls an equity or voting interest.
“IT Systems”
means all information technology, computer systems and communications systems, computers, hardware, software, databases, websites, and
other equipment owned, operated, leased or licensed by the Company used to process, store, maintain, or operate data, information or
functions used in connection with or in the operation of the business.
“Knowledge of the
Company” means the actual knowledge of the individuals identified on Section 9.15(c) of the Company Disclosure
Letter.
“Knowledge of Parent”
means the actual knowledge of Matt Goldberg, Michael Noonan and Seth J. Kalvert.
“Law” means
any federal, state, local, foreign or transnational law, statute or ordinance, common law, rule, regulation, constitution, treaty, convention,
code, Order, or other similar requirement enacted, adopted or applied by a Governmental Entity.
“Liberty Media”
means Liberty Media Corporation, a Delaware corporation.
“Liberty Media Contracts”
means all agreements entered into between Liberty Media or any of its Subsidiaries, on the one hand, and the Company, on the other hand,
including those identified on Section 9.15(d) of the Company Disclosure Letter.
“Liberty Media Letter
Agreement” means that certain Letter Agreement, dated as of the date hereof, by and among Parent, the Company and Liberty Media.
“Liberty Media Side
Letter” means the agreement, dated as of the date hereof, from Parent to Liberty Media and the Company.
“Maffei”
means Gregory B. Maffei.
“Margin
Stock” means “margin stock” as defined under Regulation U, which, for the avoidance of doubt, means (a) any
equity security registered or having unlisted trading privileges on a national securities exchange; (b) any OTC security designated
as qualified for trading in the National Market System under a designation plan approved by the Securities and Exchange Commission; (c) any
debt security convertible into a margin stock or carrying a warrant or right to subscribe to or purchase a margin stock; (d) any
warrant or right to subscribe to or purchase a margin stock; or (e) any security issued by an investment company registered under
section 8 of the Investment Company Act of 1940 (15 U.S.C. 80a-8), other than: (i) a company licensed under the Small Business Investment
Company Act of 1958, as amended (15 U.S.C. 661); (ii) a company which has at least 95 percent of its assets continuously invested
in exempted securities (as defined in 15 U.S.C. 78c(a)(12)); (iii) a company which issues face-amount certificates as defined in
15 U.S.C. 80a-2(a)(15), but only with respect of such securities; or (iv) a company which is considered a money market fund under
SEC Rule 2a-7 (17 CFR 270.2a-7).
“O’Melveny”
means O’Melveny & Myers LLP.
“Order”
means any order, judgment, injunction, ruling, writ, award or decree of any Governmental Entity.
“Parent Acquisition
Proposal” means (a) any proposal, offer, inquiry or indication of interest, from any Person or group (as defined in or
under Section 13 of the Exchange Act) relating to a merger, consolidation, dissolution, liquidation, tender offer, recapitalization,
reorganization, share exchange, business combination, joint venture, partnership, dissolution, liquidation, spin-off, extraordinary dividend
or similar transaction involving Parent which is structured to permit any Person or group to, directly or indirectly, acquire beneficial
ownership of fifty percent (50%) or more of the aggregate outstanding equity securities of Parent (or the surviving or resulting entity)
(including fifty (50%) or more of such aggregate outstanding securities not owned by the Company and its Subsidiaries) or securities
representing fifty percent (50%) or more of voting power of Parent (or the surviving or resulting entity) (including fifty (50%) or more
of such voting power not owned by the Company and its Subsidiaries), or fifty percent (50%) or more of the consolidated total assets
of Parent and its Subsidiaries and (b) any acquisition by any Person or group (as defined in or under Section 13 of the Exchange
Act) resulting in, or proposal, offer, inquiry or indication of interest, which if consummated would result in, any Person or group becoming
the beneficial owner of, directly or indirectly, in one or a series of related transactions, fifty percent (50%) or more of the aggregate
outstanding equity securities (including fifty (50%) or more of such aggregate outstanding securities not owned by the Company and its
Subsidiaries) or securities representing fifty percent (50%) or more of the voting power of Parent (including fifty (50%) or more of
such voting power not owned by the Company and its Subsidiaries), or fifty percent (50%) or more of the consolidated total assets of
Parent and its Subsidiaries.
“Parent Credit Agreement”
means the Credit Agreement, dated as of June 26, 2015, as amended and restated as of June 29, 2023 and as further amended on
July 8, 2024 and without giving effect to any amendments or modifications made after the date of this Agreement, by and among Parent,
JPMorgan Chase Bank, N.A., as administrative agent and the other parties thereto.
“Parent Loan Facility”
means a loan facility provided by Parent (or its designated Subsidiary) to the Company, which facility:
(a) shall
be a term loan (which may be in the form a delayed draw term facility);
(b) shall
accrue interest at a floating rate based on one month Adjusted Term SOFR (as defined in the Parent Credit Agreement) plus 6.00% per annum,
which shall be payable in kind (in lieu of payment in cash) on a quarterly basis (or such other time period as jointly agreed to by the
Company and Parent);
(c) shall
mature on (x) the earlier of (i) the Termination Date and (ii) fifteen (15) Business Days after the termination of this
Agreement or (y) such other date later than the date set forth in the immediately preceding clause (x) as may be agreed by
Parent and the Company;
(d) shall
not be subject to any amortization or other mandatory payments prior to the maturity of such facility;
(e) shall
not be prepayable prior to maturity without the prior written consent of Parent and shall be repaid at maturity in cash;
(f) shall
not be more restrictive than the covenant set forth in Section 6.1 of this Agreement excluding (i) any covenants that
prohibit the incurrence of debt (and any liens securing such debt) the proceeds of which are applied substantially concurrently to repay
the Parent Loan Facility or (ii) any covenants that prohibit the satisfaction of the Parent Loan Facility with cash or, to the extent
reasonably acceptable to Parent in its sole discretion, non-cash assets of the Company or its Subsidiaries;
(g) may,
at the option of Parent, be guaranteed by the U.S. Subsidiaries of the Company, subject to customary exceptions for the benefit of the
Company and its Subsidiaries to be reasonably agreed (including, for the avoidance of doubt, any exceptions that may be required to comply
with the terms of documents governing the Forward Contract) (such guarantors, the “Parent Loan Facility Guarantors”);
(h) shall
be secured (as a guarantee of payment) by substantially all assets of the Company and any Parent Loan Facility Guarantor (including Parent
Common Stock and Parent Class B Common Stock), subject to customary exceptions and exclusions for the benefit of the Company and
any Parent Loan Facility Guarantor to be reasonably agreed (including, for the avoidance of doubt, any exceptions that may be required
to comply with the terms of documents governing the Forward Contract);
(i) shall
contain customary events of default to be reasonably agreed (including, for the avoidance of doubt, events of default related to (i) a
change of control not permitted under the Agreement, (ii) the disposition of all or substantially all of the Company’s assets
and (iii) any default under any other funded Indebtedness of the Company the result of which causes or allows the holders of such
Indebtedness to declare such Indebtedness to be immediately due and payable), subject to customary grace periods, baskets and materiality
for the benefit of the Company and its Subsidiaries to be reasonably agreed upon;
(j) shall
contain customary rights and remedies of Parent in connection with events of default under the definitive documentation governing such
Parent Loan Facility, including for the avoidance of doubt, the right to declare all amounts and obligations under the Parent Loan Facility
to be immediately due and payable and the right to foreclose on and/or exercise voting rights of the Parent Shares pledged by the Company
as security under the Parent Loan Facility, subject to customary exceptions and exclusions for the benefit of the Company and any Parent
Loan Facility Guarantors to be reasonably agreed (including, for the avoidance of doubt, any exceptions that may be required to comply
with the terms of documents governing the Forward Contract);
(k) shall
not contain representations or warranties that are more burdensome than the representations and warranties contained in ARTICLE IV of
this Agreement, subject to customary exceptions for the benefit of the Company and any Parent Loan Facility Guarantors to be reasonably
agreed;
(l) shall
not require the Company or any of its Subsidiaries to reimburse Parent or any of its Subsidiaries for any fees, charges or disbursement
of their counsel(s) related to the Parent Loan Facility;
(m) shall
be governed by the laws of the State of New York; and
(n) shall
otherwise be governed by definitive documents that are in form and substance reasonably satisfactory to the Company and Parent.
“Parent Material Adverse
Effect” means any change, event, development, circumstance or effect that individually or taken together with any other change,
event, development, circumstance or effect has, or would reasonably be expected to (x) prevent, materially delay, materially impair
or interfere with, or adversely affect the ability of Parent or Merger Sub to perform or comply with its obligations under this Agreement
or to consummate the Merger and the other transactions contemplated by this Agreement on a timely basis or (y) have a material adverse
effect on the business, assets, condition (financial or otherwise), properties, liabilities, operations or results of operations of Parent
and its Subsidiaries, taken as a whole; provided, however, that none of the following shall be deemed, either alone or
in combination, to constitute, and there shall not be taken into account in determining whether there has been or would reasonably be
expected to be a Parent Material Adverse Effect: (a) changes in, or events generally affecting, the U.S. or global financial, securities
or capital markets, (b) general economic or political conditions in the United States or any foreign jurisdiction in which Parent
or any of its Subsidiaries operate, including any changes in currency exchange rates, interest rates, credit availability and liquidity,
trading volumes, monetary policy or inflation, (c) changes in, or events generally affecting, the industries in which Parent or
any of its Subsidiaries operate, (d) any natural or man-made disaster or acts of God, including earthquakes, floods, hurricanes,
tornados, volcanic eruption, epidemics, pandemics or disease outbreak (including COVID-19) or any outbreak or escalation of hostilities,
civil disobedience, acts of terrorism, sabotage, riots, demonstrations, public disorders, military action or war (whether or not declared)
or any other national or international calamity or any escalation or worsening thereof, (e) any failure by Parent or any of its
Subsidiaries to meet any internal or published budgets, projections, estimates, forecasts or predictions in respect of financial or operating
performance for any period, (f) a decline in the price of the Parent Shares, or a change in the trading volume of the Parent Shares,
on NASDAQ, provided that the exceptions in clauses (e) and (f) shall not prevent or otherwise affect a
determination that any change, event, effect, circumstance or development underlying such failure or decline or change, event, development,
circumstance or effect (if not otherwise falling within any of the exclusions pursuant to the other clauses of this definition) has resulted
in, or contributed to, a Parent Material Adverse Effect, (g) changes in Law (or interpretation thereof), including in the repeal
thereof, or in the enforcement thereof, (h) changes in GAAP (or authoritative interpretation thereof), including in the repeal thereof,
or in the enforcement thereof, (i) the taking of any specific action expressly required by this Agreement or taken with the Company’s
written consent or the failure to take any specific action expressly prohibited by this Agreement and as for which the Company declined
to consent, (j) the announcement, pendency or consummation of the Transaction Documents or the transactions contemplated hereby
or thereby, including the impact thereof on the relationships with customers, suppliers, distributors, partners, other third parties
with whom Parent has a relationship or employees (including, but not limited to, any cancellation of or delays in customer orders, any
reduction in sales, any disruption in or loss of customer, supplier, distributor, partner or similar relationships, or any loss of employees)
(it being understood and agreed that this clause (j) shall not apply with respect to any representation or warranty that
is intended to address the consequences of the execution, delivery or the announcement of the Transaction Documents or the consummation
of the transactions hereby or thereby), (k) any litigation brought by stockholders of Parent alleging breach of fiduciary duty or
inadequate disclosure in connection with this Agreement or any of the transactions contemplated hereby, (l) the departure or threatened
departure of, or adverse change or threatened adverse change in, the relationship of Parent or any of its Subsidiaries with its employees
or (m) any matters disclosed in the Parent Disclosure Letter; provided, however, that the changes, events, effects,
circumstances or developments set forth in the foregoing clauses (a), (b), (c), (d), (g) and
(h) shall be taken into account in determining whether a “Parent Material Adverse Effect” has occurred to the
extent such changes, events, effects, circumstances or developments have had a disproportionate adverse effect on Parent and its Subsidiaries,
taken as a whole, relative to other participants in the industries in which Parent and its Subsidiaries operate, but, in such event,
only the incremental disproportionate impact of such changes, events, effects, circumstances or developments shall be taken into account
in determining whether a “Parent Material Adverse Effect” has occurred.
“Parent Reports”
means the forms, statements, reports and documents filed with or furnished to the SEC since the Applicable Date and those filed with
or furnished to the SEC subsequent to the date of this Agreement, in each case as amended.
“Parent Section 16
Officer” means any person that Parent has determined to be an “officer” of Parent within the meaning of Rule 16a-1(f) of
the Exchange Act.
“Parent Stock Plan(s)”
means each of Parent’s (a) 2023 Stock and Annual Incentive Plan, (b) 2018 Stock and Annual Incentive Plan and (c) 2011
Stock and Annual Incentive Plan in each case, as amended from time to time.
“Permitted
Liens” means (a) Liens for Taxes not yet due and payable or delinquent or that are being contested in good faith
by appropriate proceedings and for which adequate reserves in the financial statements have been established and provided for in accordance
with GAAP, (b) Liens arising in the ordinary course of business in favor of vendors, carriers, warehousemen, repairmen, mechanics,
workmen, materialmen, construction or similar Liens, (c) (i) Liens affecting the interest of the grantor of any easements benefiting
owned real property and (ii) Liens of record attaching to real property, fixtures or leasehold improvements that, in each case,
would not, individually or in the aggregate, reasonably be expected to materially impair the continued use and operation of the assets
to which they relate in the business of such entity and its Subsidiaries as presently conducted, (d) Liens (i) securing any
Indebtedness of the Company and its Subsidiaries, which Liens are expected to be released at Closing, (ii) reflected in the Balance
Sheet and/or (iii) reflected in Section 9.15(e) of the Company Disclosure Letter, (e) Liens, exceptions, defects
or irregularities in title, easements, imperfections of title, claims, charges, security interests, rights-of-way, covenants, restrictions,
and other similar matters that would not, individually or in the aggregate, reasonably be expected to materially impair the continued
use and operation of the assets to which they relate in the business of such entity and its Subsidiaries as presently conducted, (f) any
license, covenant or other right to or under any Intellectual Property granted in the ordinary course of business, (g) imperfections
or irregularities in the chain of title for Intellectual Property evident from the records of the applicable Governmental Entity maintaining
the application or registrations thereof, (h) any Liens occurring under the applicable organizational documents, (i) Liens
of landlords arising under Real Property leases and Liens affecting title of landlords of property subject to Real Property leases, (j) any
interest or title of a lessor of any assets being leased pursuant to an equipment lease and (k) Liens caused, created or arising
under this Agreement.
“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 all information in any form or media that identifies, could reasonably be used to identify or is otherwise related to an individual
person, in addition to any definition for “personal information” or any similar term provided by applicable Law or by the
Company in any of its privacy policies, notices or contracts (e.g., “personal data,” “personally identifiable
information” or “PII”).
“Potter Anderson”
means Potter Anderson & Corroon LLP.
“Privacy Laws”
means, regardless of jurisdiction, any and all applicable Laws relating to the Processing of any Personal Information, and any and all
applicable Laws relating to breach notification or the use of Personal Information for marketing purposes.
“Privacy Requirements”
means all applicable Privacy Laws and all of the Company’s policies and notices and contractual obligations relating to the Processing
of any Personal Information.
“Privileged Information”
shall mean any and all Protected Information regardless of whether shared with, by, or among any Represented Person or their respective
Affiliates (or any of their respective Representatives), that was created prior to the Closing and would ordinarily be protected by the
attorney-client privilege or similar protections (including attorney work-product protections), as to which the Company, prior to the
Closing, had any rights whatsoever, either by itself or in conjunction with another Person.
“Processing”
means any operation or set of operations performed on any data, whether or not by automated means, including but not limited to receipt,
collection, compilation, use, storage, combination, sharing, safeguarding, disposal, erasure, destruction, disclosure or transfer (including
cross-border transfer).
“Protected Information”
shall mean any and all (a) documents, information, or other materials (including analyses, memoranda, spreadsheets and drafts of
any of the foregoing) whether written (in physical form or electronic media) or oral (including any written notes derived therefrom)
created prior to the Closing by or for the benefit of any Represented Persons and/or any of their respective Affiliates or Representatives
and (b) communications prior to the Closing, whether written (in physical form or electronic media) or oral (including any written
notes derived therefrom) that occur between or among any of the following: any Represented Persons, any of their respective Affiliates
or any of their respective Representatives (including, for the avoidance of doubt, strictly internal communications), in the case of
each of clause (a) or (b), to the extent actually (or reasonably deemed to be) in the possession or control of the
Company on or prior to the Closing and relating to:
(i) the
businesses or affairs of the Company and its Affiliates to the extent such information described in clause (a) or (b) of
the introductory paragraph to this definition also primarily relates to (1) any of the Persons set forth in clauses (iv) or
(v) of the definition of Represented Persons (other than to the extent such Persons are acting in their capacities as employees,
officers, directors or stockholders of the Company) or the respective employees, officers, directors or stockholders of the Persons set
forth in clause (v) of the definition of Represented Persons to the extent acting in their capacities as such or (2) Parent
or any of its Affiliates;
(ii) the
transactions contemplated by (together with any actions taken in anticipation of, or in consideration of any alternatives to, the transactions
contemplated by) this Agreement; or
(iii) any
analyses or presentations prepared or conducted by any financial advisor to the Company with respect to, in connection with or in anticipation
of the transactions described in immediately preceding clause (ii) (including the relevant portions of any related materials
shared with any transaction committee of the Company Board or the Company Board);
provided,
however, that, notwithstanding the foregoing and for the avoidance of doubt, the following shall not be deemed to be Protected
Information: (A) financial statements, schedules and other financial information to the extent relating to the Company and/or its
Subsidiaries, including auditors’ work papers and correspondence with, to or from auditors, (B) any of the information described
in clause (a) or (b) to the introductory paragraph of this definition to the extent relating to or arising out
of the Company’s SEC or OTC compliance, reporting or similar obligations, including its financial reporting and accounting requirements,
as a public company (other than to the extent relating to the matters described in clause (ii) of this definition), (C) documentation
executed or delivered by or to the Company in connection with the issuance of the Exchangeable Debentures, including the Exchangeable
Senior Debentures Indentures, together with any analyses regarding the structure or terms, or interpreting the provisions, thereof, and
(D) corporate record books of the Company and/or any of its Subsidiaries, including minutes from meetings of or actions taken by
the Company Board (other than meetings of or actions taken by any transaction committee of the Company Board or the Company Board, in
each case to the extent such meetings or actions relate to any of the matters described in clause (i), (ii) or (iii) above)
or any board of directors or similar governing body of any of the Company’s Subsidiaries, and minutes from meetings of or formal
actions taken by the stockholders of the Company or any of the Company’s Subsidiaries.
“Regulation U”
means Regulation U of the Federal Reserve Board.
“Representative”
means, with respect to any Person, one or more of such Person’s trustees, directors, officers, employees, advisors (including attorneys,
accountants, consultants, investment bankers and financial advisors), agents and other representatives. As to the Company, “Representative”
specifically excludes Parent and its Representatives and, as to Parent, “Representative” specifically excludes the
Company and its Representatives, it being understood that the members of the Parent Board who are directors or officers of the Company
shall be considered Representatives of the Company and not of Parent, for purposes of this Agreement.
“Sherman”
means Sherman & Howard L.L.C.
“Skadden”
means Skadden, Arps, Slate, Meagher & Flom LLP.
“Solvent”
when used with respect to any Person, means that, as of any date of determination: (a) the present fair salable value (determined
on a going concern basis) of its assets and property will, as of such date, exceed the amounts required to pay its debts as they become
absolute and mature, as of such date; (b) such Person will have adequate capital to carry on its business; and (c) such Person
will be able to pay its debts as they become absolute and mature, in the ordinary course of business, 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.
“Subsidiary”
means, with respect to any Person, any other Person of which at least a majority of the securities or ownership interests having by their
terms ordinary voting power to elect a majority of the board of directors or other persons performing similar functions is directly or
indirectly owned or controlled by such Person and/or by one or more of its Subsidiaries; provided, that, none of Parent or any
of its Subsidiaries shall be deemed a Subsidiary of the Company or any of its Subsidiaries.
“Superior Proposal”
means any bona fide Acquisition Proposal made by a third party after the date of this Agreement that, if consummated, would result in
such third party (or its stockholders) owning, directly or indirectly, a majority of the outstanding Shares (or of the stock of the surviving
entity in a merger or the direct or indirect parent of the surviving entity in a merger or the direct or indirect parent of the surviving
entity in a merger) or a majority of the assets of the Company and its Subsidiaries, taken as a whole, which the Company Board (or any
committee thereof) determines in good faith (after consultation with its outside legal counsel and financial advisors) to be (a) more
favorable to the holders of Common Shares from a financial point of view than the Merger (taking into account all of the terms and conditions
of, and the likelihood of completion of, such Acquisition Proposal and this Agreement (including, if applicable at the time of such determination,
any changes to the financial terms of this Agreement then committed to in writing by Parent in response to such offer or otherwise))
and (b) reasonably capable of being completed, taking into account all financial, legal, regulatory and other aspects of such proposal.
“Tax” (including,
with correlative meanings, the terms “Taxes” and “Taxable”) means all federal, state, local and
foreign taxes, profits, franchise, gross receipts, customs duty, capital stock, severance, stamp, payroll, sales, employment, unemployment,
use, real and personal property, withholding, excise, value added, transfer, employee, estimated taxes or assessments in the nature of
tax, in each case that is imposed by a Governmental Entity.
“Tax Return”
means all returns and reports with respect to Taxes (including any information return, claim for refund, amended return, declaration
of estimated Tax, election or disclosure) or any amendment to any of the foregoing required to be supplied to a Tax authority relating
to Taxes.
“Transaction Documents”
means this Agreement, the Voting Agreements, the Liberty Media Letter Agreement, the Liberty Media Side Letter and the Certares Side
Letter.
“Treasury Regulations”
means the Treasury Regulations promulgated under the Code.
“Willful Breach”
means (a) a breach by a party of any of its obligations under this Agreement that is a consequence of an act or omission knowingly
undertaken or omitted by the breaching party with the intent of causing a breach of this Agreement or (b) subject to the satisfaction
or waiver (by the party for whom such condition may be waived) of the conditions to Closing set forth in ARTICLE VII (other
than those conditions that by their terms are to be satisfied at Closing, provided that those conditions would have been satisfied
if the Closing were to occur on such date), the willful or intentional failure of the breaching party to promptly consummate the Merger
in accordance with Section 1.2 and the other transactions contemplated by this Agreement to be consummated at the Closing
in accordance with the terms and conditions of this Agreement.
[The
remainder of this page is intentionally left blank.]
IN WITNESS WHEREOF, this Agreement
has been duly executed and delivered by the duly authorized officers of the parties hereto as of the date first written above.
| |
Liberty TripAdvisor Holdings, Inc. |
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|
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By: |
/s/ Gregory B. Maffei |
| |
|
Name: |
Gregory B. Maffei |
| |
|
Title: |
President and Chief Executive Officer |
| |
|
| |
Tripadvisor, Inc. |
| |
|
| |
By: |
/s/ Michael Noonan |
| |
|
Name: |
Michael Noonan |
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|
Title: |
Chief Financial Officer |
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|
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Telluride Merger Sub Corp. |
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|
| |
By: |
/s/ Seth J. Kalvert |
| |
|
Name: |
Seth J. Kalvert |
| |
|
Title: |
President and Secretary |
[Signature Page to Agreement and Plan of Merger]
Exhibit 10.1
EXECUTION VERSION
VOTING AGREEMENT
This Voting Agreement (this “Agreement”),
dated as of December 18, 2024, is entered into by and among Tripadvisor, Inc., a Delaware corporation (“Parent”), Liberty
TripAdvisor Holdings, Inc., a Delaware corporation (the “Company”), and the undersigned stockholder of the Company
(the “Stockholder”).
WHEREAS, subject to the terms and conditions of
the Agreement and Plan of Merger (as the same may be amended, supplemented or modified, the “Merger Agreement”), dated
as of the date hereof, among Parent, Telluride Merger Sub Corp., a Delaware corporation and an indirect wholly owned Subsidiary of Parent
(“Merger Sub”), and the Company, among other transactions contemplated by the Merger Agreement, Merger Sub will be
merged with and into the Company (the “Merger”), with the Company surviving the Merger as an indirect wholly owned
Subsidiary of Parent, and immediately thereafter the Company will be merged with and into ParentSub LLC (the “ParentSub LLC Merger”),
with ParentSub LLC surviving the ParentSub LLC Merger as a direct wholly owned Subsidiary of Parent;
WHEREAS, as of the date of this Agreement, the
Stockholder owns beneficially (references herein to “beneficial owner,” “beneficial ownership” and “owns
beneficially” shall have the meanings assigned to such terms under Rule 13d-3, Rule 13d-4 and Rule 13d-5 promulgated under the Exchange
Act), or of record, and, with respect to the Merger and the other transactions contemplated by the Merger Agreement, has the power to
vote or direct the voting of, all of the Series A Preferred Shares listed on Schedule A hereto (all such shares, the “Existing
Shares”); and
WHEREAS, as a condition and inducement for Parent
and the Company to enter into the Merger Agreement, Parent and the Company have required that the Stockholder, in its capacity as a stockholder
of the Company, enter into this Agreement, and the Stockholder has agreed to enter into this Agreement.
NOW THEREFORE, in consideration of the foregoing,
the mutual covenants and agreements set forth herein, and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, intending to be legally bound, the parties hereto agree as follows:
1.
Definitions. Capitalized terms not defined in this Agreement have the meaning assigned to those terms in the Merger
Agreement.
2. Effectiveness;
Termination. This Agreement shall be effective upon signing. This Agreement shall automatically terminate upon the earliest
to occur (the “Expiration Date”) of (a) such date and time as the Merger Agreement shall have been validly
terminated in accordance with Article VIII thereof, (b) the Effective Time and (c) the written agreement of Parent, the Company and
the Stockholder to terminate this Agreement, and, upon such termination, each of the parties to this Agreement shall be relieved of
its duties and obligations arising under this Agreement after the effective date of such termination and such termination shall be
without liability to any of the parties hereto; provided, that (x) this Section 2 and Sections 9 through 26
of this Agreement shall survive any such termination for the applicable statute of limitations, except as otherwise expressly
provided herein, and (y) such termination shall not relieve any party of any liability or damages resulting from (1) fraud or (2)
Willful Breach by such party prior to termination, in each case, as determined by a court of competent jurisdiction pursuant to a
final and nonappealable judgment. For purposes of this Agreement, (A) “fraud” means intentional and knowing
common law fraud under Delaware law in the representations and warranties set forth in this Agreement and (B) “Willful
Breach” means a material breach by a party of any of its obligations under this Agreement that is a consequence of an act
or omission knowingly undertaken or omitted by the breaching party with the intent of causing a material breach of this
Agreement.
3.
Voting Agreement.
(a)
From the date hereof until the Expiration Date (the “Support Period”), the Stockholder irrevocably and unconditionally
hereby agrees that at any meeting (whether annual or special and each postponement, recess, adjournment or continuation thereof) of the
stockholders of the Company, however called, and in connection with any written consent of the holders of Series A Preferred Shares requested
by the Company, the Stockholder shall:
| (i) | appear at such meeting or otherwise cause all of the Existing Shares and all other voting securities of the Company over which the
Stockholder (A) has acquired beneficial or record ownership after the date hereof or (B) otherwise has the power to vote or direct the
voting of (including any Series A Preferred Shares or other voting securities of the Company acquired by means of purchase, dividend or
distribution, or the conversion of any convertible securities, or pursuant to any other derivative securities or otherwise over which
the Stockholder has the power to vote) (together with the Existing Shares, collectively, the “Shares”), which the Stockholder
owns or controls as of the applicable record date, to be counted as present thereat for purposes of calculating a quorum; and |
| (ii) | vote or cause to be voted (including by proxy or execution of a consent, as applicable) all such Shares (A) in favor of the adoption
of the Company Charter Amendment, (B) in favor of any proposal to adjourn or postpone such meeting of the stockholders of the Company
to a later date if such adjournment or postponement is proposed in compliance with the provisions of Section 6.4(a) of the Merger
Agreement and (C) against any action, proposal, transaction, agreement or amendment of the Restated Company Certificate of Incorporation,
in each case of this clause (C), for which the Stockholder has received prior notice from either Parent or the Company that it reasonably
expects that such action, proposal, transaction, agreement or amendment would (x) result in a breach of any covenant, representation or
warranty or any other obligation or agreement of the Company contained in the Merger Agreement, or of the Stockholder contained in this
Agreement, or (y) prevent, impede, interfere with, delay, postpone, or adversely
affect the consummation of the transactions contemplated by the Merger Agreement, including the Merger. |
(b)
For the avoidance of doubt, the foregoing commitments apply to any Shares held by any trust, limited partnership or other entity
directly or indirectly holding Shares for which the Stockholder serves as a partner, stockholder, trustee or in a similar capacity so
long as, and to the extent, the Stockholder exercises voting control over such Shares. To the extent the Stockholder does not have sole
control of the voting determinations of such entity, the Stockholder agrees to exercise all voting rights or other voting determination
rights the Stockholder has in such entity to carry out the intent and purposes of the Stockholder’s support and voting obligations
in this paragraph and otherwise set forth in this Agreement.
(c)
The Stockholder represents, covenants and agrees that, (i) except for this Agreement, the Stockholder has not entered into, and
shall not enter into during the Support Period, any commitment, agreement, understanding or other similar arrangement with any person
to vote or give instructions in any manner with respect to any Shares, including any voting agreement or voting trust, and (ii) except
as expressly set forth herein, the Stockholder has not granted, and shall not grant during the Support Period, a proxy, consent or power
of attorney with respect to any Shares. The Stockholder agrees not to enter into any agreement or commitment with any person the effect
of which would violate, or frustrate the intent of, the provisions of this Agreement applicable to the Stockholder.
(d)
In furtherance and not in limitation of the foregoing, but only in the event and in each case that the Stockholder fails to be
counted as present or fails to vote all of the Stockholder’s Shares in accordance with this Agreement, until the Expiration Date,
the Stockholder hereby appoints Renee Wilm, for so long as she serves as Chief Legal Officer of the Company, or any other person acting
as Chief Legal Officer of the Company and any designee thereof, and each of them individually, as the Stockholder’s proxy and attorney-in-fact,
with full power of substitution and resubstitution, to vote or act by written consent (and to instruct nominees or record holders to vote
or act by written consent) during the Support Period with respect to any and all of the Stockholder’s Shares in accordance with
this Section 3. This proxy and power of attorney are given to secure the performance of the duties of the Stockholder under this
Agreement. The Stockholder hereby agrees that this proxy and power of attorney granted by the Stockholder shall be irrevocable until the
Expiration Date, shall be deemed to be coupled with an interest sufficient under applicable Law to support an irrevocable proxy and shall
revoke any and all prior proxies granted by the Stockholder with respect to any Shares regarding the matters set forth in this Section
3. The power of attorney granted by the Stockholder herein is a durable power of attorney and shall survive the bankruptcy, death
or incapacity of the Stockholder.
4.
Non-Solicitation. The Stockholder hereby agrees, and agrees to cause its controlled Affiliates (which, for the avoidance
of doubt, does not include the Company or Parent) and its and their Representatives not to, take any action which, were it taken by the
Company or its Representatives, would violate Section 6.2(a) of the Merger Agreement, it being understood that any action in compliance
with Section 6.2(a) of the Merger Agreement shall not be deemed a breach by the Stockholder of this Agreement.
5.
Transfer Restrictions Prior to the Merger. The Stockholder hereby agrees that it will not, during the Support Period,
without the prior written consent of Parent and the Company, other than pursuant to this Agreement or the Merger Agreement, directly or
indirectly, offer for sale, sell, transfer, exchange, convert, assign, give, tender in any tender or exchange offer, pledge, encumber,
hypothecate or otherwise dispose of (by merger, by testamentary disposition, by operation of Law or otherwise), either voluntarily or
involuntarily, enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences
of ownership of, enter into any contract, option or other arrangement or understanding with respect to the sale, transfer, assignment,
pledge, encumbrance, hypothecation or other disposition of (by merger, by testamentary disposition, by operation of Law or otherwise)
or otherwise convey or dispose of, any of the Shares, or any interest therein (including by merger, by testamentary disposition, by operation
of Law or otherwise), including the right to vote any such Shares, as applicable (a “Transfer”). Notwithstanding anything
contained herein, the Stockholder will be permitted to (a) effect a bona fide pledge of Series A Preferred Shares to any financial institution
in connection with a bona fide financing transaction to the extent permitted by the Investment Agreement (a “Permitted Pledge”)
(so long as such pledge does not prevent or otherwise restrict in any manner the Stockholder from voting such shares pursuant to the provisions
of this Agreement prior to any default and foreclosure under the indebtedness underlying such pledge); provided, that it shall
be a condition to any Permitted Pledge that the beneficiary of such Permitted Pledge shall agree in a signed writing reasonably satisfactory
to Parent and the Company to become bound by and comply with (i) the provisions of this Agreement and (ii) the waivers and other provisions
contained in Section 1 and in Section 2 of that certain Side Letter Agreement, dated as of the date hereof, by and among
Parent, the Stockholder and the Company (the “Letter Agreement”), in each case of these clauses (i) and (ii), if such
beneficiary of such Permitted Pledge forecloses on or otherwise acquires title to the Series A Preferred Shares so pledged, and (b) with
respect to any Shares the Stockholder beneficially owns, grant a proxy to the record holder of such Shares to vote in accordance with
Section 3.
6.
Appraisal Rights. The Stockholder hereby waives, and agrees not to exercise or assert, if applicable pursuant to
Section 3.3 of the Merger Agreement, any appraisal rights under Section 262 of the DGCL in connection with the Merger.
7. Representations
of the Stockholder. The Stockholder represents and warrants to Parent and the Company as follows: (a) the Stockholder has
full legal right, capacity and authority to execute and deliver this Agreement, to perform the Stockholder’s obligations
hereunder and to consummate the transactions contemplated hereby; (b) this Agreement has been duly and validly executed and
delivered by the Stockholder and constitutes a valid and legally binding agreement of the Stockholder, enforceable against the
Stockholder in accordance with its terms, and no other action is necessary to authorize the execution and delivery of this Agreement
by the Stockholder or the performance of the Stockholder’s obligations hereunder; (c) the execution and delivery of this
Agreement by the Stockholder do not, and the consummation of the transactions contemplated hereby and the compliance with the
provisions hereof will not, conflict with or violate any Law applicable to such Stockholder or result in any breach of or violation
of, or constitute a default (or an event that with notice or lapse of time or both would become a default) under, or give to others
any rights of termination, amendment, acceleration or cancellation of, or result in the creation of a Lien on any of the Shares
pursuant to, any agreement or other instrument or obligation binding upon the Stockholder or any of the Shares, nor require any
authorization, consent or approval of, or filing with, any Governmental Entity other than pursuant to the Exchange Act, the
Securities Act and, if applicable, the HSR Act; (d) subject to the Permitted Pledges, the Stockholder owns beneficially, and has the
power to vote or direct the voting of, the Stockholder’s Shares, including the Existing Shares, a complete and accurate
schedule of which as of the date hereof is set forth opposite the Stockholder’s name on Schedule A; (e) the Stockholder
owns beneficially the Stockholder’s Shares, including the Existing Shares, free and clear of any proxy, voting restriction,
adverse claim or other Lien (other than any Permitted Pledge and any restrictions created by the Transaction Documents or under
applicable federal or state securities Laws); and (f) immediately after the Merger and ParentSub LLC Merger, the Stockholder will
own, actually and constructively, for purposes of Section 302 of the Code, a number of shares of Parent Shares that is less than 80%
of the number of shares of Parent Shares that the Stockholder owned (actually and constructively, for such purposes) immediately
before the Merger; and (g) the Stockholder, its managing member or their advisers has read and is familiar with the terms of the
Merger Agreement and the other Transaction Documents, and the Stockholder understands and acknowledges that the Company and Parent
are entering into the Merger Agreement in reliance upon the Stockholder’s execution and delivery of this Agreement.
8.
Representations of Parent and the Company.
(a)
Except as disclosed in any Parent Reports filed with the SEC on or after the Applicable Date and prior to the date of this Agreement
(excluding any disclosures (other than statements of historical fact) contained in any “Forward-Looking Statements” and “Risk
Factors” sections of such Parent Reports and any other disclosures included or referenced in any such Parent Reports that are cautionary,
predictive or forward looking in nature), Parent hereby represents and warrants to the Stockholder as follows:
| (i) | Parent has full legal right, capacity and authority to execute and deliver this Agreement, to perform its obligations hereunder and
to consummate the transactions contemplated hereby. |
| (ii) | This Agreement has been duly and validly executed and delivered by Parent and constitutes a valid and legally binding agreement of
Parent, enforceable against Parent in accordance with its terms, and no other action is necessary to authorize the execution and delivery
of this Agreement by Parent or the performance of its obligations hereunder. |
| (iii) | The execution and delivery of this Agreement by Parent do not, and the consummation of the transactions contemplated hereby and the
compliance with the provisions hereof will not, conflict with or violate any Law applicable to Parent or result in any breach of or violation
of, or constitute a default (or an event that with notice or lapse of time or both would become a default) under, or give to others any
rights of termination, amendment, acceleration or cancellation of, or result in the creation of a Lien on any property of Parent pursuant to, any agreement or other
instrument or obligation binding upon Parent or any of its property, nor require any authorization, consent or approval of, or filing
with, any Governmental Entity other than pursuant to the Exchange Act, the Securities Act or, if applicable, the HSR Act. |
| (iv) | Except as would not reasonably be expected to have a Parent Material Adverse Effect, as of the date of this Agreement and as of the
Closing Date: |
| A. | Parent has filed or furnished, as applicable, on a timely basis, all Parent Reports. Each of the Parent Reports, at the time of its
filing or being furnished, complied as to form in all material respects with the applicable requirements of the Securities Act, the Exchange
Act and the Sarbanes-Oxley Act of 2002, and any rules and regulations promulgated thereunder applicable to the Parent Reports. As of their
respective filing dates (or, if amended or superseded by a filing prior to the date of this Agreement, on the date of such amended or
superseded filing), the Parent Reports did 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.
Notwithstanding the foregoing, Parent makes no representation or warranty with respect to information supplied by or on behalf of Parent
or its Subsidiaries for inclusion or incorporation by reference in any of the Parent Reports. |
| B. | Parent is in compliance in all material respects with the applicable listing and corporate governance rules and regulations of NASDAQ. |
| C. | Parent maintains disclosure controls and procedures (as defined in Rule 13a-15(e) or 15d-15(e) under the Exchange Act) that are sufficient
to provide reasonable assurance that material information required to be disclosed by Parent in its filings with the SEC under the Exchange
Act is recorded and reported on a timely basis to the individuals responsible for the preparation of Parent’s filings with the SEC
under the Exchange Act. Parent maintains internal controls over financial reporting (as defined in Rule 13a-15(f) or 15d-15(f), as applicable,
under the Exchange Act) sufficient to provide reasonable assurance regarding the reliability of financial reporting and the preparation
of financial statements for external purposes in accordance with GAAP. Since the Applicable
Date, to the Knowledge of Parent, Parent has not received any notification of (i) any “significant deficiencies” or “material
weaknesses” in the design or operation of its internal controls over financial reporting, (ii) any fraud, whether or not material,
that involves management or other employees who have a significant role in Parent’s internal control over financial reporting or
(iii) any complaints regarding a material violation of accounting procedures, internal accounting controls or auditing matters relating
to the period since the Applicable Date, including from employees of Parent or its Subsidiaries regarding questionable accounting, auditing
or legal compliance matters, in each case that would be reasonably expected to adversely affect Parent’s ability to record, process,
summarize and report financial information. Each of the consolidated balance sheets included in or incorporated by reference into the
Parent Reports (including the related notes and schedules) fairly presents, in each case, in all material respects, the consolidated financial
position of Parent and its Subsidiaries, as of the date of such balance sheet, and each of the consolidated statements of income, cash
flows and changes in stockholders’ equity (deficit) included in or incorporated by reference into the Parent Reports (including
any related notes and schedules) fairly presents, in each case, in all material respects, the results of operations, retained earnings
(loss) and changes in financial position, as the case may be, of Parent and its Subsidiaries for the periods set forth therein (subject,
in the case of unaudited statements, to notes and normal year-end audit adjustments that are not or will not be material in amount or
effect), in each case in accordance with GAAP consistently applied during the periods involved, except as may be noted therein or in the
notes thereto. |
| D. | There are no obligations or liabilities of Parent or its Subsidiaries, whether or not accrued, whether known or unknown, on-or off-balance
sheet, contingent, absolute or otherwise other than (i) liabilities or obligations disclosed, reflected, reserved against or otherwise
provided for in the Parent Balance Sheet, (ii) liabilities or obligations incurred in the ordinary course of business (none of which is
a liability for breach of contract, breach of warranty, tort, infringement, violation of Law, or that relates to any cause of action,
claim or lawsuit) since September 30, 2024, (iii) liabilities or obligations arising out of the Merger Agreement or the transactions contemplated
thereby, (iv) liabilities or obligations that would not be required to be reflected or reserved against in the Parent Balance Sheet under GAAP or
(v) liabilities or obligations that have not had and would not, individually or in the aggregate, reasonably be expected to have a Parent
Material Adverse Effect. |
| (v) | Since January 1, 2024 and through the Closing Date, there has not been any change, event, occurrence, condition, effect, circumstance
or development, which has had, or would, individually or in the aggregate, reasonably be expected to have, a Parent Material Adverse Effect. |
| (vi) | Except as would not reasonably be expected to have a Parent Material Adverse Effect, since January 1, 2024 and through the date of
this Agreement, other than with respect to the negotiation and execution of the Merger Agreement and the consummation of the transactions
contemplated thereby, Parent and its Subsidiaries have conducted their respective businesses in the ordinary course of such businesses
in all material respects. |
(b)
The Company represents and warrants to the Stockholder as follows: (i) the Company has full legal right, capacity and authority
to execute and deliver this Agreement, to perform its obligations hereunder and to consummate the transactions contemplated hereby; (ii)
this Agreement has been duly and validly executed and delivered by the Company and constitutes a valid and legally binding agreement of
the Company, enforceable against the Company in accordance with its terms, and no other action is necessary to authorize the execution
and delivery of this Agreement by the Company or the performance of its obligations hereunder; and (iii) the execution and delivery of
this Agreement by the Company do not, and the consummation of the transactions contemplated hereby and the compliance with the provisions
hereof will not, conflict with or violate any Law applicable to the Company or result in any breach of or violation of, or constitute
a default (or an event that with notice or lapse of time or both would become a default) under, or give to others any rights of termination,
amendment, acceleration or cancellation of, or result in the creation of a Lien on any property of the Company pursuant to, any agreement
or other instrument or obligation binding upon the Company or any of its property, nor require any authorization, consent or approval
of, or filing with, any Governmental Entity other than pursuant to the Exchange Act, the Securities Act or, if applicable, the HSR Act.
9. Publicity.
The Stockholder hereby authorizes Parent and the Company to publish and disclose in any documents and schedules filed with the SEC,
and any press release or other disclosure document that Parent or the Company determines to be necessary or desirable in connection
with this Agreement, the other Transaction Documents or the transactions contemplated hereby or thereby (including in the Proxy
Statement or any other filing with any Governmental Entity made in connection with the Merger) the Stockholder’s identity and
ownership of the Shares, this Agreement and the nature of the Stockholder’s commitments, arrangements and understandings under
this Agreement and such other information required in connection with such disclosure. The Stockholder agrees to notify Parent and
the Company as promptly as practicable of any inaccuracies or omissions in any information relating to the Stockholder that is so
published or disclosed. The Stockholder shall not be permitted to make any public statement regarding this Agreement, the Merger
Agreement or the transactions contemplated hereby or thereby without the prior written consent of the Company and Parent; provided,
that the foregoing shall not restrict the Stockholder from making any disclosure or other public statement (a) required to be made
by the Stockholder under applicable Law, so long as the Stockholder provides the Company and Parent with reasonable prior written
notice (including reasonable opportunity to review and comment) of such disclosure or (b) in connection with any Action by the
Company against the Stockholder seeking to enforce any provision of, or based on any matter arising out of or in connection with,
this Agreement, the Merger Agreement or any of the other Transaction Documents or any of the transactions contemplated hereby or
thereby.
10.
Entire Agreement. This Agreement (including the schedules hereto), the Merger Agreement and the Letter Agreement,
constitute the entire agreement among the parties with respect to the subject matter hereof and supersede all other prior agreements and
understandings, both written and oral, among the parties with respect to the subject matter hereof. Nothing in this Agreement, express
or implied, is intended to or shall confer upon any person not a party to this Agreement any right, benefit or remedy of any nature whatsoever
under or by reason of this Agreement. Parent acknowledges and agrees that, except as expressly provided herein, nothing in this Agreement
shall be deemed to vest in Parent any direct or indirect ownership or incidence of ownership of or with respect to any Shares.
11.
Intended Tax Treatment. The parties agree that, for U.S. federal income (and applicable state and local) tax purposes,
the Series A Preferred Share Cash Merger Consideration shall not be subject to treatment as a dividend pursuant to Section 356(a)(2) of
the Code or otherwise treated as a distribution under Section 301(c)(1) of the Code. The parties hereto agree not to take any position
that is inconsistent with the foregoing on any Tax Return, in any Tax audit or for any other applicable Tax purposes, except to the extent
otherwise required pursuant to a “determination” within the meaning of Section 1313(a)(1) of the Code.
12.
Assignment. Except as provided in Section 5 of this Agreement, neither this Agreement nor any of the rights
or obligations hereunder shall be assigned by any of the parties hereto without the prior written consent of the other parties. Any attempted
assignment in violation of this Section 12 shall be null and void ab initio. Subject to the preceding two sentences, this
Agreement will be binding upon, inure to the benefit of and be enforceable by, the parties hereto and their respective successors and
assigns.
13.
Amendment, Waiver, Modification of Merger Agreement. The Merger Agreement and any agreements contemplated thereby
may not be amended and no provision thereof waived or modified without the prior written consent of the Stockholder, if such amendment,
waiver or modification (a) is material and adverse to the Stockholder or (b) has an adverse effect on the amount or form of consideration
to be received by the Stockholder in the Merger.
14. Further
Assurances. Each party hereto agrees, from time to time, at the reasonable request of any other party hereto and without
further consideration, to execute and deliver such additional consents, documents and other instruments and to take such further
actions as are reasonably requested to effectuate the matters covered by this Agreement.
15.
Remedies/Specific Enforcement. Each of the parties hereto agrees that this Agreement is intended to be legally binding
and specifically enforceable pursuant to its terms and that the other parties would be irreparably harmed if any of the provisions of
this Agreement are not performed in accordance with its specific terms and that monetary damages would not provide adequate remedy in
such event. Accordingly, in the event of any breach or threatened breach by any party hereto of any covenant or obligation contained in
this Agreement, in addition to any other remedy to which the other parties may be entitled (whether at law or in equity), the other parties
shall be entitled to injunctive relief to prevent breaches or threatened breaches of this Agreement and to specifically enforce the terms
and provisions hereof, and each party hereto hereby waives any defense in any action for specific performance or an injunction or other
equitable relief, that a remedy at law would be adequate. Each party hereto further agrees that no party or any other person or entity
shall be required to obtain, furnish or post any bond or similar instrument in connection with or as a condition to obtaining any remedy
referred to in this paragraph, and each party hereto irrevocably waives any right to require the obtaining, furnishing or posting of any
such bond or similar instrument.
16.
Governing Law; Jurisdiction; Venue. This Agreement shall be deemed made in and in all respects shall be interpreted,
construed and governed by and in accordance with the laws of the State of Delaware without regard to the conflict or choice of law principles
thereof. Any action, suit, arbitration, claim or proceeding by or before any Governmental Entity (each, an “Action”)
seeking to enforce any provision of, or based on any matter arising out of or in connection with, this Agreement or any of the transactions
contemplated hereby, will be brought exclusively in the Court of Chancery of the State of Delaware (the “Delaware Chancery Court”)
or, if the Delaware Chancery Court does not have subject matter jurisdiction, any state or federal courts located in the State of Delaware
(and in each case, any appellate courts therefrom). Each of the parties hereto (a) irrevocably and unconditionally submits and consents
to the personal jurisdiction in any such Action brought in any such court (and of the appropriate appellate courts therefrom), (b) irrevocably
agrees that it will not attempt to deny or defeat such personal jurisdiction by motion or other request for leave from any such courts,
(c) irrevocably agrees that all claims in respect of such Action may be heard and determined in any such courts (and the appropriate
appellate courts therefrom) and agrees not to bring any Action arising out of or relating to this Agreement or any of the transactions
contemplated hereby in any courts other than the Delaware Chancery Court or, if such court lacks subject matter jurisdiction, any state
or federal court located in the State of Delaware and any appellate court therefrom, (d) irrevocably waives, to the fullest extent permitted
by Law, any objection that it may now or hereafter have to the laying of the venue of any such Action in any such court (and the appropriate
appellate courts therefrom) or that such Action was brought in an inconvenient forum and agrees not to plead or claim the same and (e)
consents to service being made through the notice procedures set forth in Section 17. Each of the Company, Parent and the Stockholder
hereby agrees that service of any process, summons, notice or document by U.S. registered mail to the respective addresses set forth
in Section 17 shall be effective service of process for any Action in connection with this Agreement or the transactions contemplated
hereby.
17.
Notice. All notices, requests, claims, demands and other communications under this Agreement shall be in writing
and shall be deemed given (a) on the date of delivery if delivered personally or sent via e-mail (without any “bounceback”
or other notice of nondelivery) or (b) on the first (1st) Business Day following the date of dispatch if sent by a nationally recognized
overnight courier (providing proof of delivery), in each case to the parties hereto at the following addresses (or at such other address
for a party as shall be specified by like notice):
If to Parent:
Tripadvisor, Inc.
400 1st Avenue
Needham, MA 02494
Attention: Seth Kalvert
E-Mail: [Separately provided]
with a copy to (which shall not constitute
notice):
Weil, Gotshal & Manges LLP
767 Fifth Avenue
New York, New York 10153
Attention: Michael J. Aiello; Matthew J. Gilroy
E-Mail: michael.aiello@weil.com; matthew.gilroy@weil.com
If to the Company:
Liberty TripAdvisor Holdings, Inc.
12300 Liberty Boulevard
Englewood, CO 80112
Attention: Chief Legal Officer
E-Mail: [Separately provided]
with a copy to (which shall not constitute
notice):
O’Melveny & Myers L.L.P.
Two Embarcadero Center, 28th Floor
San Francisco, CA 94111
Attention: C. Brophy Christensen; Noah Kornblith
E-mail: bchristensen@omm.com; nkornblith@omm.com
If to the Stockholder:
Certares LTRIP LLC
c/o Certares Management LLC
350 Madison Avenue, 8th Floor
New York, NY 10017
Attention: Tom LaMacchia, Managing Director & General Counsel
E-Mail: [Separately provided]
With a copy (which shall not constitute notice)
to:
Simpson Thacher and Bartlett LLP
425 Lexington Avenue
New York, NY 10017
Attention: Anthony Vernace; Adam Cromie
E-Mail: avernace@stblaw.com; adam.cromie@stblaw.com
or such other address, email address or facsimile number as such party
may hereafter specify by like notice to the other parties hereto.
18.
Severability. Whenever possible, each provision or portion of any provision of this Agreement shall be interpreted
in such manner as to be effective and valid under applicable Law. In the event that any provision of this Agreement, or the application
thereof, becomes or is declared by a court of competent jurisdiction to be invalid, illegal, void or unenforceable, the remainder of this
Agreement will continue in full force and effect and the application of such provision will be interpreted so as reasonably to effect
the intent of the parties hereto. Upon such determination that any term or other provision is invalid, illegal, void or incapable of being
enforced, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties
as closely as possible to the fullest extent permitted by applicable Law in an acceptable manner to the end that the transactions contemplated
hereby are fulfilled to the greatest extent possible.
19.
Amendments; Waivers. Any provision of this Agreement may be modified, amended or waived if, and only if, such modification,
amendment or waiver is in writing and signed (a) in the case of an amendment, by Parent, the Company and the Stockholder, and (b) in the
case of a waiver, by the party against whom the waiver is to be effective, subject in each case to any approvals that may be required
from the Special Committee or pursuant to the organizational documents of Parent. No failure or delay by any party in exercising any right,
power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or
further exercise thereof or the exercise of any other right, power or privilege.
20. Waiver
of Jury Trial. EACH PARTY HERETO ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY
TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH SUCH PARTY HERETO IRREVOCABLY AND UNCONDITIONALLY WAIVES TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY ACTION DIRECTLY OR
INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH OR RELATING TO THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED BY THIS
AGREEMENT. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, THE COMPANY (ON BEHALF OF ITSELF
AND ITS SUBSIDIARIES) AND EACH OF THE OTHER PARTIES HERETO WAIVES ANY RIGHT TO TRIAL BY JURY WITH RESPECT TO ANY ACTION RELATED TO
ANY OF ITS SUBSIDIARIES IN CONNECTION WITH THE MERGER AGREEMENT OR THE PERFORMANCE THEREOF OR THE TRANSACTIONS CONTEMPLATED
THEREBY. EACH PARTY HERETO HEREBY CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HERETO
HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF SUCH ACTION, SEEK TO ENFORCE THE FOREGOING
WAIVER, (B) EACH SUCH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (C) EACH SUCH PARTY MAKES THIS WAIVER
VOLUNTARILY AND (D) EACH SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS CONTAINED IN THIS SECTION 20.
21.
Counterparts. The parties may execute this Agreement in one or more counterparts, including by facsimile or other
electronic signature. All the counterparts will be construed together and will constitute one Agreement. The exchange of copies of this
Agreement and of signature pages by facsimile or e-mail shall constitute effective execution and delivery of this Agreement as to the
parties hereto and may be used in lieu of the original Agreement for all purposes. Signatures of the parties hereto transmitted by facsimile
or e-mail shall be deemed to be their original signatures for all purposes.
22.
Actions by Parent. Actions taken under this Agreement on behalf of Parent will be taken only with the approval of
the Special Committee (if such committee is in existence at the time such action is to be taken).
23.
Interpretation. When a reference is made in this Agreement to a Section, such reference shall be to a Section of
this Agreement unless otherwise indicated. The headings contained in this Agreement are for reference purposes only and shall not affect
in any way the meaning or interpretation of this Agreement. Whenever the words “include”, “includes” or “including”
are used in this Agreement, they shall be deemed to be followed by the words “without limitation”. The words “hereof”,
“herein” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement
as a whole and not to any particular provision of this Agreement. When this Agreement contemplates a certain number of securities, as
of a particular date, such number of securities shall be deemed to be appropriately adjusted to account for stock splits, dividends, recapitalizations,
combinations of shares or other changes affecting such securities.
24.
Expenses. In any action or suit at law or in equity to enforce this Agreement or the rights of any of the parties
hereunder, the prevailing party in such action or suit shall be entitled to receive reimbursement for all reasonable costs and expenses
(including reasonable attorneys’ fees) incurred in such action or suit. Except as otherwise provided herein, all costs, fees and
expenses incurred in connection with this Agreement and the transactions contemplated hereby, whether or not consummated, shall be paid
by the party incurring such cost or expense.
25.
No Additional Representations. Except for the representations and warranties expressly made in this Agreement, each
party hereto hereby agrees that no other party hereto makes, and each party hereto disclaims any reliance upon, any express or implied
representation or warranty whatsoever with respect to the matters set forth in this Agreement.
26.
Parent Shares. For the avoidance of doubt, this Agreement and the covenants, agreements and obligations set forth
herein shall not apply to and shall not affect or restrict in any manner the Stockholder’s ownership or voting of, or any rights
appurtenant to, Parent Shares owned beneficially or of record, or otherwise controlled (including pursuant to any other derivative securities),
by the Stockholder. For the avoidance of doubt, for purposes of this Section 26, Parent shall not be deemed to own beneficially
or of record, or otherwise control, any Parent Shares owned by the Company.
[Signature pages follow]
IN WITNESS WHEREOF, this Agreement has been duly
executed by the parties and is effective as of the date first set forth above.
| |
Certares LTRIP LLC |
| |
|
| |
By: Certares Management LLC, its manager |
| |
|
| |
By: |
/s/ Tom LaMacchia |
| |
Name: Tom LaMacchia |
| |
Title: Managing Director & General
Counsel |
[Signature Page to Certares Voting Agreement]
| |
TRIPADVISOR, INC. |
| |
|
| |
By: |
/s/ Michael Noonan |
| |
Name: Michael Noonan |
| |
Title: Chief Financial Officer |
| |
|
| |
LIBERTY TRIPADVISOR HOLDINGS, INC. |
| |
|
| |
By: |
/s/ Renee L. Wilm |
| |
Name: Renee L. Wilm |
| |
Title: Chief Legal Officer and Chief Administrative Officer |
[Signature Page to Certares Voting Agreement]
SCHEDULE A
Stockholder Information
| Stockholder | |
Series A
Preferred
Shares | |
| Certares LTRIP LLC | |
| 187,414 | |
Exhibit 10.2
EXECUTION VERSION
VOTING AGREEMENT
This Voting Agreement (this
“Agreement”), dated as of December 18, 2024, is entered into by and among Tripadvisor, Inc., a Delaware
corporation (“Parent”), Liberty TripAdvisor Holdings, Inc., a Delaware corporation (the “Company”),
and the undersigned stockholder of the Company (the “Stockholder”).
WHEREAS, subject to the terms
and conditions of the Agreement and Plan of Merger (as the same may be amended, supplemented or modified, the “Merger Agreement”),
dated as of the date hereof, among Parent, Telluride Merger Sub Corp., a Delaware corporation and an indirect wholly owned Subsidiary
of Parent (“Merger Sub”), and the Company, among other transactions contemplated by the Merger Agreement, Merger Sub
will be merged with and into the Company (the “Merger”), with the Company surviving the Merger as an indirect wholly
owned Subsidiary of Parent, and immediately thereafter the Company will be merged with and into TellurideSub LLC, a Delaware limited
liability company and a direct wholly owned Subsidiary of Parent (“ParentSub LLC”) (such merger, the “ParentSub
LLC Merger”), with ParentSub LLC surviving the ParentSub LLC Merger as a direct wholly owned Subsidiary of Parent;
WHEREAS, as of the date of
this Agreement, the Stockholder owns beneficially (references herein to “beneficial owner,” “beneficial ownership”
and “owns beneficially” shall have the meanings assigned to such terms under Rule 13d-3, Rule 13d-4 and Rule 13d-5
promulgated under the Exchange Act), or of record, and, with respect to the Merger and the other transactions contemplated by the Merger
Agreement, has the power to vote or direct the voting of, certain shares of Series B Common Stock listed on Schedule A hereto
(all such shares, the “Existing Shares”, and shares of Series A Common Stock and shares of Series B Common
Stock referred to collectively as the “Voting Stock”); and
WHEREAS, as a condition and
inducement for Parent and the Company to enter into the Merger Agreement, Parent and the Company have required that the Stockholder,
in his capacity as a stockholder of the Company, enter into this Agreement, and the Stockholder has agreed to enter into this Agreement.
NOW THEREFORE, in consideration
of the foregoing, the mutual covenants and agreements set forth herein, and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, intending to be legally bound, the parties hereto agree as follows:
1. Definitions.
Capitalized terms not defined in this Agreement have the meaning assigned to those terms in the Merger Agreement.
2. Effectiveness;
Termination. This Agreement shall be effective upon signing. This Agreement shall automatically terminate upon the earliest to
occur (the “Expiration Date”) of (a) such date and time as the Merger Agreement shall have been validly terminated
in accordance with Article VIII thereof, (b) the Effective Time, (c) the written agreement of Parent, the Company and
the Stockholder to terminate this Agreement and (d) the date of any material modification, waiver or amendment of the Merger Agreement
as in effect on the date of this Agreement that adversely affects the value of the consideration payable to the Stockholder, causes such
consideration to include any property other than cash, or adds new conditions or modifies any existing conditions to the consummation
of the Merger that materially adversely affect the Stockholder or the Merger, without the prior written consent of the Stockholder; provided,
that (x) this Section 2 and Sections 9 through 25 of this Agreement shall survive any such termination,
and (y) such termination shall not relieve any party of any liability or damages resulting from (1) fraud or (2) Willful
Breach by such party prior to termination, in each case, as determined by a court of competent jurisdiction pursuant to a final and nonappealable
judgment. For purposes of this Agreement, (A) “fraud” means intentional and knowing common law fraud under Delaware
law in the representations and warranties set forth in this Agreement and (B) “Willful Breach” means a material
breach by a party of any of its obligations under this Agreement that is a consequence of an act or omission knowingly undertaken or
omitted by the breaching party with the intent of causing a material breach of this Agreement.
3. Voting
Agreement.
(a) From
the date hereof until the Expiration Date (the “Support Period”), the Stockholder irrevocably and unconditionally
hereby agrees that at any meeting (whether annual or special and each postponement, recess, adjournment or continuation thereof) of the
holders of capital stock of the Company (or any subset thereof) (such meeting, the “Stockholder Meeting”), however
called, and in connection with any written consent of the holders of Voting Stock, the Stockholder shall:
| (i) | appear at such Stockholder Meeting or
otherwise cause all of the Existing Shares and all other shares of Voting Stock or voting
securities of the Company over which he (A) has acquired beneficial or record ownership
after the date hereof or (B) otherwise has the power to vote or direct the voting of
(including any shares of Voting Stock or other voting securities of the Company acquired
by means of purchase, dividend or distribution, or issued upon the exercise of any stock
options to acquire Voting Stock or the conversion of any convertible securities, or pursuant
to any other equity awards or derivative securities or otherwise over which he has the power
to vote) (together with the Existing Shares, collectively, the “Shares”),
which he owns or controls as of the applicable record date, to be counted as present thereat
for purposes of calculating a quorum; and |
| (ii) | subject to Section 3(a)(iii),
vote or cause to be voted (including by proxy or execution of a written consent, as applicable)
all such Shares (A) in favor of the adoption of the Merger Agreement and the approval
of the transactions contemplated thereby, including the Merger, (B) in favor of the
adoption of the Company Charter Amendment, (C) in favor of any proposal to adjourn or
postpone such Stockholder Meeting to a later date if such adjournment or postponement is
proposed in compliance with the provisions of Section 6.4(a) of the Merger Agreement,
(D) against any action or proposal in favor of any Acquisition Proposal, without regard
to the terms of such Acquisition Proposal, and (E) against any action, proposal, transaction,
agreement or amendment of the Restated Company Certificate of Incorporation or the A&R
Company Bylaws, in each case of this clause (E), for which the Stockholder has received prior
notice from either Parent or the Company that it reasonably expects that such action, proposal,
transaction, agreement or amendment would (x) result in a breach of any covenant, representation
or warranty or any other obligation or agreement of the Company contained in the Merger Agreement,
or of the Stockholder contained in this Agreement, or (y) prevent, impede, interfere
with, delay, postpone, or adversely affect the consummation of the transactions contemplated
by the Merger Agreement, including the Merger. |
| (iii) | Notwithstanding anything to the contrary
herein, if at any time during the Support Period the Company Board (or any duly authorized
committee thereof) makes a Change in Recommendation pursuant to Section 6.2 of the Merger
Agreement (the “Change of Recommendation Event”), then the obligations,
covenants and restrictions of the Stockholder set forth in Section 3(a)(ii) shall
be limited to the number of Common Shares held by the Stockholder equal in aggregate to 33.37%
of the total voting power of the Covered Company Voting Stock (such shares, the “Covered
Shares”); provided that if a Change of Recommendation Event occurs, notwithstanding
any other obligations hereunder, the Stockholder shall deliver a written consent executed
on behalf of, or vote at any Stockholder Meeting, as applicable, its Shares that are not
Covered Shares with respect to the adoption of the Merger Agreement and approval of the transactions
contemplated thereby, including the Merger, the Company Charter Amendment, and any other
matters described in Section 3(a)(ii) in the same proportion as written
consents executed or votes cast, as applicable, by the holders of Voting Stock other than
the Stockholder (such proportion determined without inclusion of the votes cast by the Stockholder)
with respect to any such matter; provided, further, that in the event of a
Change of Recommendation Event, the Stockholder shall have the right to determine which of
the Shares held by the Stockholder will be included in the Covered Shares (it being understood
that this proviso is not intended to change the total number or percentage of Covered Shares
as determined pursuant to this Section 3(a)(iii)). For purposes of this Agreement,
the “Covered Company Voting Stock” shall mean the total number of Common
Shares outstanding as of the record date established by the Company with respect to such
action by written consent, or vote at any Stockholder Meeting, as applicable. |
(b) For
the avoidance of doubt, the foregoing commitments apply to any Shares held by any trust, limited partnership or other entity directly
or indirectly holding Shares for which the Stockholder serves as a partner, stockholder, trustee or in a similar capacity so long as,
and to the extent, the Stockholder exercises voting control over such Shares. To the extent the Stockholder does not have sole control
of the voting determinations of such entity, the Stockholder agrees to exercise all voting rights or other voting determination rights
he has in such entity to carry out the intent and purposes of his support and voting obligations in this paragraph and otherwise set
forth in this Agreement.
(c) The
Stockholder represents, covenants and agrees that, (i) except for this Agreement and except for that certain standstill letter dated
December 21, 2014 by and between the Stockholder and the Company (the “Standstill Letter”), he has not entered
into, and shall not enter into during the Support Period, any commitment, agreement, understanding or other similar arrangement with
any person to vote or give instructions in any manner with respect to any Shares, including any voting agreement or voting trust, and
(ii) except as expressly set forth herein or the Standstill Letter or with respect to the election of directors, ratification of
the appointment of the Company’s auditors or other routine matters at an annual meeting of the stockholders of the Company, he
has not granted, and shall not grant during the Support Period, a proxy, consent or power of attorney with respect to any Shares. The
Stockholder agrees not to enter into any agreement or commitment with any person the effect of which would violate, or frustrate the
intent of, the provisions of this Agreement.
(d) In
furtherance and not in limitation of the foregoing, but only in the event and in each case that the Stockholder fails to be counted as
present or fails to vote all of the Stockholder’s Shares in accordance with this Agreement, until the Expiration Date, the Stockholder
hereby appoints Renee Wilm, for so long as she serves as Chief Legal Officer of the Company, or any other person acting as Chief Legal
Officer of the Company and any designee thereof, and each of them individually, as his proxy and attorney-in-fact, with full power of
substitution and resubstitution, to vote or act by written consent (and to instruct nominees or record holders to vote or act by written
consent) during the Support Period with respect to any and all of the Stockholder’s Shares in accordance with this Section 3.
This proxy and power of attorney are given to secure the performance of the duties of the Stockholder under this Agreement. The Stockholder
hereby agrees that this proxy and power of attorney granted by the Stockholder shall be irrevocable until the Expiration Date, shall
be deemed to be coupled with an interest sufficient under applicable Law to support an irrevocable proxy and shall revoke any and all
prior proxies granted by the Stockholder with respect to any Shares regarding the matters set forth in this Section 3. The
power of attorney granted by the Stockholder herein is a durable power of attorney and shall survive the bankruptcy, death or incapacity
of the Stockholder.
4. Non-Solicitation.
The Stockholder hereby agrees, and agrees to cause his controlled Affiliates (which, for the avoidance of doubt, does not include the
Company or Parent) and his and their representatives not to, take any action which, were it taken by the Company or its Representatives,
would violate Section 6.2 of the Merger Agreement, it being understood that any action in compliance with Section 6.2 of the
Merger Agreement shall not be deemed a breach by the Stockholder of this Section 4.
5. Transfer
Restrictions Prior to the Merger. The Stockholder hereby agrees that he will not, during the Support Period, without the prior
written consent of Parent and the Company, (a) convert any shares of Series B Common Stock into shares of Series A Common
Stock or (b) other than pursuant to this Agreement or the Merger Agreement, directly or indirectly, offer for sale, sell, transfer,
exchange, convert, assign, give, tender in any tender or exchange offer, pledge, encumber, hypothecate or otherwise dispose of (by merger,
by testamentary disposition, by operation of Law or otherwise), either voluntarily or involuntarily, enter into any swap or other arrangement
that transfers to another, in whole or in part, any of the economic consequences of ownership of, enter into any contract, option or
other arrangement or understanding with respect to the sale, transfer, assignment, pledge, encumbrance, hypothecation or other disposition
of (by merger, by testamentary disposition, by operation of Law or otherwise) or otherwise convey or dispose of, any of the Shares, or
any interest therein (including by merger, by testamentary disposition, by operation of Law or otherwise), including the right to vote
any such Shares, as applicable (a “Transfer”); provided, that the Stockholder may Transfer Shares for estate-planning
purposes, or by testamentary disposition, or to a controlled Affiliate, with respect to a trust over which the Stockholder has sole or
shared investment power, in each case, so long as the transferee, prior to the time of Transfer (or in the case of a testamentary disposition,
as promptly as reasonably practicable after such Transfer), agrees in a signed writing reasonably satisfactory to Parent and the Company
to be bound by and comply with the provisions of this Agreement, and the Stockholder (except as otherwise provided above in the case
of such Stockholder’s death) provides at least five (5) Business Days’ prior written notice (which shall include the
written consent of the transferee agreeing to be bound by and comply with the provisions of this Agreement) to Parent and the Company,
in which case the Stockholder shall remain responsible for any breach of this Agreement by such transferee, and provided, further,
that the death of the Stockholder shall itself not be a Transfer of Shares so long as the heir(s) of the Stockholder, or a controlled
Affiliate of the Stockholder, continue to own such Shares as Shares covered under this Agreement and such heir(s) or controlled
Affiliate agree in a signed writing reasonably satisfactory to Parent and the Company to be bound by and comply with the provisions of
this Agreement. Notwithstanding anything contained herein, the Stockholder will be permitted to (a) effect a bona fide pledge of
Series A Common Stock or Series B Common Stock (including any existing pledge) to any financial institution in connection with
a bona fide financing transaction (a “Permitted Pledge”) (so long as such pledge does not prevent or otherwise restrict
in any manner the Stockholder from voting such shares pursuant to the provisions of this Agreement prior to any default and foreclosure
under the indebtedness underlying such pledge), (b) grant a revocable proxy with respect to routine matters at an annual meeting
of the stockholders of the Company (provided such proxy does not apply with respect to any of the matters set forth in this Agreement,
even if such matters are submitted to a vote at an annual meeting of the stockholders of the Company) and (c) with respect to any
Shares the Stockholder beneficially owns, grant a proxy to the record holder of such Shares to vote in accordance with Section 3.
6. Appraisal
Rights. The Stockholder hereby waives, and agrees not to exercise or assert, if applicable pursuant to Section 3.3 of the
Merger Agreement, any appraisal rights under Section 262 of the DGCL in connection with the Merger.
7. Representations
of the Stockholder. The Stockholder represents and warrants to Parent and the Company as follows: (a) the Stockholder has
full legal right, capacity and authority to execute and deliver this Agreement, to perform the Stockholder’s obligations hereunder
and to consummate the transactions contemplated hereby; (b) this Agreement has been duly and validly executed and delivered by the
Stockholder and constitutes a valid and legally binding agreement of the Stockholder, enforceable against the Stockholder in accordance
with its terms, and no other action is necessary to authorize the execution and delivery of this Agreement by the Stockholder or the
performance of his obligations hereunder; (c) the execution and delivery of this Agreement by the Stockholder do not, and the consummation
of the transactions contemplated hereby and the compliance with the provisions hereof will not, conflict with or violate any Law applicable
to such Stockholder or result in any breach of or violation of, or constitute a default (or an event that with notice or lapse of time
or both would become a default) under, or give to others any rights of termination, amendment, acceleration or cancellation of, or result
in the creation of a Lien on any of the Shares pursuant to, any agreement or other instrument or obligation binding upon the Stockholder
or any of the Shares, nor require any authorization, consent or approval of, or filing with, any Governmental Entity other than pursuant
to the Exchange Act, the Securities Act and, if applicable, the HSR Act; (d) subject to the Permitted Pledges, the Stockholder owns
beneficially, and has the power to vote or direct the voting of, the Stockholder’s Shares, including the Existing Shares, a complete
and accurate schedule of which as of the date hereof is set forth opposite the Stockholder’s name on Schedule A; (e) the
Stockholder owns beneficially the Stockholder’s Shares, including the Existing Shares, free and clear of any proxy, voting restriction,
adverse claim or other Lien (other than any Permitted Pledge and any restrictions created by the Transaction Documents or under applicable
federal or state securities Laws); and (f) the Stockholder or his advisers has read and is familiar with the terms of the Merger
Agreement and the other agreements and documents contemplated herein and therein, and the Stockholder understands and acknowledges that
the Company and Parent are entering into the Merger Agreement in reliance upon the Stockholder’s execution and delivery of this
Agreement.
8. Representations
of Parent and the Company.
(a) Parent
represents and warrants to the Stockholder as follows: (i) Parent has full legal right, capacity and authority to execute and deliver
this Agreement, to perform its obligations hereunder and to consummate the transactions contemplated hereby; (ii) this Agreement
has been duly and validly executed and delivered by Parent and constitutes a valid and legally binding agreement of Parent, enforceable
against Parent in accordance with its terms, and no other action is necessary to authorize the execution and delivery of this Agreement
by Parent or the performance of its obligations hereunder; and (iii) the execution and delivery of this Agreement by Parent do not,
and the consummation of the transactions contemplated hereby and the compliance with the provisions hereof will not, conflict with or
violate any Law applicable to Parent or result in any breach of or violation of, or constitute a default (or an event that with notice
or lapse of time or both would become a default) under, or give to others any rights of termination, amendment, acceleration or cancellation
of, or result in the creation of a Lien on any property of Parent pursuant to, any agreement or other instrument or obligation binding
upon Parent or any of its property, nor require any authorization, consent or approval of, or filing with, any Governmental Entity other
than pursuant to the Exchange Act, the Securities Act or, if applicable, the HSR Act.
(b) The
Company represents and warrants to the Stockholder as follows: (i) the Company has full legal right, capacity and authority to execute
and deliver this Agreement, to perform its obligations hereunder and to consummate the transactions contemplated hereby; (ii) this
Agreement has been duly and validly executed and delivered by the Company and constitutes a valid and legally binding agreement of the
Company, enforceable against the Company in accordance with its terms, and no other action is necessary to authorize the execution and
delivery of this Agreement by the Company or the performance of its obligations hereunder; and (iii) the execution and delivery
of this Agreement by the Company do not, and the consummation of the transactions contemplated hereby and the compliance with the provisions
hereof will not, conflict with or violate any Law applicable to the Company or result in any breach of or violation of, or constitute
a default (or an event that with notice or lapse of time or both would become a default) under, or give to others any rights of termination,
amendment, acceleration or cancellation of, or result in the creation of a Lien on any property of the Company pursuant to, any agreement
or other instrument or obligation binding upon the Company or any of its property, nor require any authorization, consent or approval
of, or filing with, any Governmental Entity other than pursuant to the Exchange Act, the Securities Act or, if applicable, the HSR Act.
9. Publicity.
The Stockholder hereby authorizes Parent and the Company to publish and disclose in any documents and schedules filed with the SEC, and
any press release or other disclosure document that Parent or the Company determines to be necessary or desirable in connection with
this Agreement, the other Transaction Documents or the transactions contemplated hereby or thereby (including in the Proxy Statement
or any other filing with any Governmental Entity made in connection with the Merger) the Stockholder’s identity and ownership of
the Shares, this Agreement and the nature of the Stockholder’s commitments, arrangements and understandings under this Agreement
and such other information required in connection with such disclosure. The Stockholder agrees to notify Parent and the Company as promptly
as practicable of any inaccuracies or omissions in any information relating to the Stockholder that is so published or disclosed. The
Stockholder shall not be permitted to make any public statement regarding this Agreement, the Merger Agreement or the transactions contemplated
hereby or thereby without the prior written consent of the Company and Parent; provided, that the foregoing shall not restrict
the Stockholder from making any disclosure or other public statement required to be made by the Stockholder under applicable Law, including
any amendment filed with the SEC on Schedule 13D, so long as the Stockholder provides the Company and Parent with reasonable prior written
notice (including reasonable opportunity to review and comment) of such disclosure. For the avoidance of doubt, this Section 9 applies to the Stockholder only in his capacity as a holder of Common Shares, and not in his capacity as a director or officer of
the Company or Parent.
10. Indemnification.
(a) To
the fullest extent permitted by applicable Law, each of the Company and, effective from and following the Effective Time, Parent (including
for Losses indemnifiable hereunder arising prior to, on or after the Effective Time), jointly and severally, from and following the Effective
Time (the “Indemnifying Party”) covenants and agrees, and Parent shall cause ParentSub LLC from and after the ParentSub
LLC Merger to covenant and agree, jointly and severally (the “Indemnifying Parties”), on the terms and subject to
the limitations set forth in this Agreement, to indemnify and hold harmless the Stockholder (and each of his successors, assigns and
Representatives), in each case in his capacity as a holder of shares of capital stock of the Company and, with respect to Company Transaction
Litigation (as defined below), as a director and/or officer of the Company (each in such capacity, an “Indemnified Party”),
from and against any and all Losses (as defined below) incurred in connection with, arising out of or resulting from any claims, demands,
actions, proceedings or investigations (each, an “Action” and collectively, “Actions”) arising
out of (i) this Agreement or the performance of such Indemnified Party hereunder or any Actions relating to the Merger Agreement
and the transactions contemplated thereby (including any Actions brought by any of the stockholders, directors, officers or employees
of the Company or Parent) or (ii) any Actions brought by or on behalf of any stockholder of the Company (and any resolution thereof)
relating to the Merger or any of the other transactions contemplated by the Merger Agreement that is brought against the Company and/or
any of its directors and/or officers (in their capacities as such), whether brought before or after the Effective Time (any such litigation
pursuant to this clause (ii), “Company Transaction Litigation”). For purposes of this Section 10, “Losses”
means any loss (including disgorgement of consideration), liability, cost, damage or expense (including, without duplication, reasonable
fees and expenses of counsel, accountants, consultants and other experts) related to an Action for which an Indemnified Party is entitled
to indemnification pursuant to this Agreement; provided, however, that any diminution in value of Common Shares or Parent
Shares shall not constitute a Loss.
(b) Notwithstanding
anything herein to the contrary, the Indemnifying Party will not be obligated to provide indemnity hereunder to an Indemnified Party
with respect to any Losses which (i) result from such Indemnified Party’s fraud (as defined herein), bad faith, Willful Breach
or gross negligence or (ii) result from any breach of any representation and warranty of such Indemnified Party contained in this
Agreement or any breach of any covenant or agreement made or to be performed by such Indemnified Party under this Agreement.
(c) The
Indemnifying Party will indemnify each Indemnified Party pursuant to this Section 10 regardless of whether such Losses are
incurred prior to or after the Effective Time. The indemnification provided pursuant to this Section 10 is in addition to,
and not in derogation of, any other rights an Indemnified Party may have under applicable Law, the Restated Company Certificate of Incorporation
or the A&R Company Bylaws, or pursuant to any contract, agreement or arrangement (including, for the avoidance of doubt, under the
Merger Agreement); provided, however, that Losses will not be duplicated. If an Indemnified Party receives an indemnification
payment pursuant to this Agreement and later receives insurance proceeds or other third-party recovery proceeds in respect of the related
Losses, then the Indemnified Party shall promptly remit to the Indemnifying Party, amounts equal to the lesser of (i) the amount
of such insurance proceeds or other third-party recovery proceeds, if any, and (ii) the amount of the indemnification payment previously
paid by or on behalf of the Indemnifying Party with respect to such Losses.
(d) Promptly
after the receipt by an Indemnified Party of notice with respect to any Action that is or may be subject to indemnification hereunder
(each, an “Indemnifiable Claim”) (and in no event more than ten (10) Business Days after such event), such Indemnified
Party shall give written notice thereof to the Indemnifying Party, which notice will include, to the extent known, the basis for such
Indemnifiable Claim and copies of any pleadings or written demands relating to such Indemnifiable Claim and, promptly following request
therefor, shall provide any additional information in respect thereof that the Indemnifying Party may reasonably request; provided,
that (i) any delay in giving or failure to give such notice will not affect the obligations of the Indemnifying Party hereunder
except to the extent the Indemnifying Party is actually prejudiced as a result of such delay in or failure to notify, and (ii) no
such notice shall be required to be given to the Indemnifying Party to the extent that the Indemnifying Party or any of its respective
(x) Affiliates is a party to any such Indemnifiable Claim or (y) has received notice pursuant to Section 6.10 of the Merger
Agreement to the extent applicable to such Indemnifiable Claim.
(e) Subject
to Section 10(f) and Section 10(g), the Indemnifying Party shall be entitled to exercise full control of
the defense, compromise or settlement of any Indemnifiable Claim in respect of an Action commenced or made by a Person who is not a party
to this Agreement or an Affiliate of a party to this Agreement, including any Company Transaction Litigation (a “Third Party
Indemnifiable Claim”), so long as, within ten (10) Business Days after the receipt of notice of such Third Party Indemnifiable
Claim from the Indemnified Party (pursuant to Section 10(d)), the Indemnifying Party: (i) delivers a written confirmation
to such Indemnified Party that the indemnification provisions of Section 10 are applicable, subject only to the limitations
set forth in this Agreement, to such Third Party Indemnifiable Claim and that the Indemnifying Party will indemnify such Indemnified
Party in respect of such Third Party Indemnifiable Claim to the extent required by this Section 10 and (ii) notifies
such Indemnified Party in writing that the Indemnifying Party will assume the control of the defense thereof. Following notification
to such Indemnified Party of the assumption of the defense of such Third Party Indemnifiable Claim, the Indemnifying Party shall retain
legal counsel reasonably satisfactory to such Indemnified Party to conduct the defense of such Third Party Indemnifiable Claim. If the
Indemnifying Party so assumes the defense of any such Third Party Indemnifiable Claim in accordance herewith, subject to the provisions
of subsections (d) through (f) of this Section 10, (A) the Indemnifying Party shall be entitled to exercise
full control of the defense, compromise or settlement of such Third Party Indemnifiable Claim and such Indemnified Party shall cooperate
(subject to the Indemnifying Party’s agreement to reimburse such Indemnified Party for all documented reasonable out-of-pocket
expenses incurred by such Indemnified Party in connection with such cooperation) with the Indemnifying Party in any manner that the Indemnifying
Party reasonably may request in connection with the defense, compromise or settlement thereof (subject to the last sentence of this Section 10(e))
and (B) such Indemnified Party shall have the right to employ separate counsel selected by such Indemnified Party and to participate
in (but not control) the defense, compromise or settlement thereof and the Indemnifying Party shall pay the reasonable fees and expenses
of one such separate counsel, and, if reasonably necessary, one local counsel. No Indemnified Party shall settle or compromise or consent
to entry of any judgment with respect to any such Action (or part thereof) for which it is entitled to indemnification and to which the
Indemnifying Party has provided the written confirmation specified in clause (i) above without the prior written consent of the
Indemnifying Party (which consent shall not be unreasonably withheld, delayed or conditioned). Without the prior written consent of each
of the Indemnified Parties who are named in the Action subject to the Third Party Indemnifiable Claim (which consent shall not be unreasonably
withheld, delayed or conditioned), the Indemnifying Party will not settle or compromise or consent to the entry of judgment with respect
to any Indemnifiable Claim (or part thereof) unless such settlement, compromise or consent (x) includes an unconditional release
of such Indemnified Parties, (y) does not include any admission of wrongdoing on the part of such Indemnified Parties and (z) does
not enjoin or restrict in any way the future actions or conduct of such Indemnified Parties (other than in a manner consistent with the
terms of the subject instruments or pursuant to customary confidentiality obligations).
(f) Notwithstanding
Section 10(e), an Indemnified Party, at the expense of the Indemnifying Party (it being understood, however, that the Indemnifying
Party shall not be liable for the expenses of more than one separate counsel (in addition to one local counsel in each applicable jurisdiction)
representing the Indemnified Party), shall, subject to the last sentence of this Section 10(f), be entitled to separately
control the defense, compromise or settlement of any Third Party Indemnifiable Claim (i) as to such Indemnified Party if the Indemnified
Party with the opinion of external counsel shall have reasonably concluded that there exists any actual conflict of interest relating
to the defense of such Action between the Indemnified Party and the Indemnifying Party, (ii) as to which the Indemnifying Party
has previously assumed control in the event the Indemnifying Party is not diligently pursuing such defense, or (iii) if the Indemnifying
Party has not assumed the defense thereof in accordance with Section 10(e). No Indemnified Party shall settle or compromise
or consent to entry of any judgment with respect to any Action with respect to which it controls the defense thereof pursuant to this
Section 10(f) and for which it is entitled to indemnification without the prior written consent of the Indemnifying
Party, which consent shall not be unreasonably withheld, conditioned or delayed.
(g) In
all instances under this Section 10 where the Indemnifying Party has agreed to pay the fees, costs and expenses of the Indemnified
Parties, such fees, costs and expenses shall be reasonable. The parties agree to cooperate and coordinate in connection with the defense,
compromise or settlement of any Indemnifiable Claims.
(h) In
addition to (but without duplication of) the Indemnified Party’s right to indemnification as set forth in this Section 10,
if so requested by an Indemnified Party, the Indemnifying Party shall also advance to such Indemnified Party (within ten (10) Business
Days of such request) any and all documented reasonable out-of-pocket fees, costs and expenses incurred by an Indemnified Party in accordance
with this Section 10 in connection with investigating, defending, being a witness in or participating in (including any appeal),
or preparing to defend, be a witness in or participate in, any Indemnifiable Claim (other than an Indemnifiable Claim initiated by the
Indemnified Party or in which Parent or the Company alleges a breach by the Indemnified Party of any representation and warranty of such
Indemnified Party contained in this Agreement or any breach of any covenant or agreement made or to be performed by such Indemnified
Party under this Agreement), including, without duplication, reasonable fees and expenses of legal counsel, accountants, consultants
and other experts (“Expense Advances”).
(i) The
Stockholder agrees that he will repay Expense Advances made to him (or paid on his behalf) by the Indemnifying Party pursuant to this
Section 10 if it is ultimately finally determined by a court of competent jurisdiction that he is not entitled to be indemnified
pursuant to this Section 10.
11. Entire
Agreement. This Agreement (including the schedules hereto) and the Merger Agreement constitute the entire agreement among
the parties with respect to the subject matter hereof and supersede all other prior agreements and understandings, both written and oral,
among the parties with respect to the subject matter hereof. Nothing in this Agreement, express or implied, is intended to or shall confer
upon any person not a party to this Agreement any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
Parent acknowledges and agrees that, except as expressly provided herein, nothing in this Agreement shall be deemed to vest in Parent
any direct or indirect ownership or incidence of ownership of or with respect to any Shares.
12. Assignment.
Except as provided in Section 5 of this Agreement, neither this Agreement nor any of the rights or obligations hereunder
shall be assigned by any of the parties hereto without the prior written consent of the other parties. Any attempted assignment in violation
of this Section 12 shall be null and void ab initio. Subject to the preceding two sentences, this Agreement will be
binding upon, inure to the benefit of and be enforceable by, the parties and their respective successors and assigns and, in the event
of the Stockholder’s death, the Stockholder’s heirs, executors, administrators, testamentary trustees, legatees or beneficiaries.
13. Director/Officer.
Notwithstanding anything to the contrary contained in this Agreement, the Stockholder is entering into this Agreement solely in his capacity
as a beneficial owner of his Shares, and nothing herein is intended to or shall limit, affect or restrict any director or officer of
the Company or any of its Subsidiaries solely in his or her capacity as a director or officer of Parent, the Company or any of their
respective Subsidiaries (including voting on matters put to such board or any committee thereof, influencing officers, employees, agents,
management or the other directors of Parent, the Company or any of their respective Subsidiaries and taking or failing to take any action
or making any statement at any meeting of such board or any committee thereof), in each case solely in his or her capacity as a director
or officer of Parent, the Company or any of their respective Subsidiaries in the exercise of his or her fiduciary duties as a director
or officer of Parent, the Company or any of their respective Subsidiaries.
14. Further
Assurances. Each party hereto agrees, from time to time, at the reasonable request of any other party hereto and without further
consideration, to execute and deliver such additional consents, documents and other instruments and to take such further actions as are
reasonably requested to effectuate the matters covered by this Agreement.
15. Remedies/Specific
Enforcement. Each of the parties hereto agrees that this Agreement is intended to be legally binding and specifically enforceable
pursuant to its terms and that the other parties would be irreparably harmed if any of the provisions of this Agreement are not performed
in accordance with its specific terms and that monetary damages would not provide adequate remedy in such event. Accordingly, in the
event of any breach or threatened breach by any party hereto of any covenant or obligation contained in this Agreement, in addition to
any other remedy to which the other parties may be entitled (whether at law or in equity), the other parties shall be entitled to injunctive
relief to prevent breaches or threatened breaches of this Agreement and to specifically enforce the terms and provisions hereof, and
each party hereto hereby waives any defense in any action for specific performance or an injunction or other equitable relief, that a
remedy at law would be adequate. Each party hereto further agrees that no party or any other person or entity shall be required to obtain,
furnish or post any bond or similar instrument in connection with or as a condition to obtaining any remedy referred to in this paragraph,
and each party hereto irrevocably waives any right he may have to require the obtaining, furnishing or posting of any such bond or similar
instrument.
16. Governing
Law; Jurisdiction; Venue. This Agreement shall be deemed made in and in all respects shall be interpreted, construed and governed
by and in accordance with the laws of the State of Delaware without regard to the conflict or choice of law principles thereof. Any action,
suit, arbitration or proceeding by or before any Governmental Entity (each, an “Action”) seeking to enforce any provision
of, or based on any matter arising out of or in connection with, this Agreement or any of the transactions contemplated hereby, will
be brought exclusively in the Court of Chancery of the State of Delaware (the “Delaware Chancery Court”) or, if the
Delaware Chancery Court does not have subject matter jurisdiction, any state or federal courts located in the State of Delaware (and
in each case, any appellate courts therefrom). Each of the parties hereto (a) irrevocably and unconditionally submits and consents
to the personal jurisdiction in any such Action brought in any such court (and of the appropriate appellate courts therefrom), (b) irrevocably
agrees that it will not attempt to deny or defeat such personal jurisdiction by motion or other request for leave from any such courts,
(c) irrevocably agrees that all claims in respect of such Action may be heard and determined in any such courts (and the appropriate
appellate courts therefrom) and agrees not to bring any Action arising out of or relating to this Agreement or any of the transactions
contemplated hereby in any courts other than the Delaware Chancery Court or, if such court lacks subject matter jurisdiction, any state
or federal court located in the State of Delaware and any appellate court therefrom, (d) irrevocably waives, to the fullest extent
permitted by Law, any objection that it may now or hereafter have to the laying of the venue of any such Action in any such court (and
the appropriate appellate courts therefrom) or that such Action was brought in an inconvenient forum and agrees not to plead or claim
the same and (e) consents to service being made through the notice procedures set forth in Section 17. Each of the Company,
Parent and the Stockholder hereby agrees that service of any process, summons, notice or document by U.S. registered mail to the respective
addresses set forth in Section 17 shall be effective service of process for any Action in connection with this Agreement
or the transactions contemplated hereby.
17. Notice.
All notices, requests, claims, demands and other communications under this Agreement shall be in writing and shall be deemed given (a) on
the date of delivery if delivered personally or sent via e-mail (without any “bounceback” or other notice of nondelivery)
or (b) on the first (1st) Business Day following the date of dispatch if sent by a nationally recognized overnight courier (providing
proof of delivery), in each case to the parties hereto at the following addresses (or at such other address for a party as shall be specified
by like notice):
If to Parent:
Tripadvisor, Inc.
400 1st Avenue
Needham, MA 02494
Attention: Seth J. Kalvert
E-Mail:
[Separately provided]
with a copy to (which shall not constitute notice):
Weil, Gotshal & Manges LLP
767 Fifth Avenue
New York, New York 10153
Attention: Michael J. Aiello; Matthew J. Gilroy
E-Mail: michael.aiello@weil.com; matthew.gilroy@weil.com
If to the Company:
Liberty TripAdvisor Holdings, Inc.
12300 Liberty Boulevard
Englewood, CO 80112
Attention: Chief Legal Officer
E-Mail: [Separately provided]
with a copy to (which shall not constitute notice):
O’Melveny & Myers L.L.P.
Two Embarcadero Center, 28th Floor
San Francisco, CA 94111
Attention: C. Brophy Christensen
Noah Kornblith
E-mail: bchristensen@omm.com
nkornblith@omm.com
If to the Stockholder:
Gregory B. Maffei
c/o Liberty Media Corporation
12300 Liberty Boulevard
Englewood, CO 80112
E-Mail: [Separately provided]
With a copy (which shall not constitute notice) to:
Sherman & Howard L.L.C.
675 Fifteenth Street
Suite 2300
Denver,
CO 80202
Attention: Jeffrey R. Kesselman
E-Mail: jkesselman@shermanhoward.com
or such other address, email address or facsimile
number as such party may hereafter specify by like notice to the other parties hereto.
18. Severability.
Whenever possible, each provision or portion of any provision of this Agreement shall be interpreted in such manner as to be effective
and valid under applicable Law. In the event that any provision of this Agreement, or the application thereof, becomes or is declared
by a court of competent jurisdiction to be invalid, illegal, void or unenforceable, the remainder of this Agreement will continue in
full force and effect and the application of such provision will be interpreted so as reasonably to effect the intent of the parties
hereto. Upon such determination that any term or other provision is invalid, illegal, void or incapable of being enforced, the parties
hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible
to the fullest extent permitted by applicable Law in an acceptable manner to the end that the transactions contemplated hereby are fulfilled
to the greatest extent possible.
19. Amendments;
Waivers. Any provision of this Agreement may be modified, amended or waived if, and only if, such modification, amendment or
waiver is in writing and signed (a) in the case of an amendment, by Parent, the Company and the Stockholder, and (b) in the
case of a waiver, by the party against whom the waiver is to be effective, subject in each case to any approvals that may be required
from the Special Committee or pursuant to the organizational documents of Parent. No failure or delay by any party in exercising any
right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any
other or further exercise thereof or the exercise of any other right, power or privilege.
20. Waiver
of Jury Trial. EACH PARTY HERETO ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY
TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH SUCH PARTY HERETO IRREVOCABLY AND UNCONDITIONALLY WAIVES TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY ACTION DIRECTLY OR INDIRECTLY
ARISING OUT OF, UNDER OR IN CONNECTION WITH OR RELATING TO THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. EACH PARTY
HERETO HEREBY CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HERETO HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF SUCH ACTION, SEEK TO ENFORCE THE FOREGOING WAIVER, (B) EACH
SUCH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (C) EACH SUCH PARTY MAKES THIS WAIVER VOLUNTARILY AND
(D) EACH SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS
CONTAINED IN THIS SECTION 20.
21. Counterparts.
The parties may execute this Agreement in one or more counterparts, including by facsimile or other electronic signature. All the counterparts
will be construed together and will constitute one Agreement. The exchange of copies of this Agreement and of signature pages by
facsimile or e-mail shall constitute effective execution and delivery of this Agreement as to the parties hereto and may be used in lieu
of the original Agreement for all purposes. Signatures of the parties hereto transmitted by facsimile or e-mail shall be deemed to be
their original signatures for all purposes.
22. Actions
by Parent. Actions taken under this Agreement on behalf of Parent will be taken only with the approval of the Special Committee
(if such committee is in existence at the time such action is to be taken).
23. Interpretation.
When a reference is made in this Agreement to a Section, such reference shall be to a Section of this Agreement unless otherwise
indicated. The headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation
of this Agreement. Whenever the words “include”, “includes” or “including” are used in this Agreement,
they shall be deemed to be followed by the words “without limitation”. The words “hereof”, “herein”
and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not
to any particular provision of this Agreement. When this Agreement contemplates a certain number of securities, as of a particular date,
such number of securities shall be deemed to be appropriately adjusted to account for stock splits, dividends, recapitalizations, combinations
of shares or other changes affecting such securities.
24. Expenses.
The Company shall pay the reasonable out-of-pocket costs and expenses incurred by the Stockholder in connection with the preparation,
negotiation, execution and delivery of this Agreement, the other Transaction Documents or the transactions contemplated hereby or thereby
(including the Proxy Statement or any other filing with any Governmental Entity, including, if applicable, a filing or filings pursuant
to the HSR Act, made in connection with the Merger), including the reasonable fees, charges and disbursements of advisors, representatives
and counsel for the Stockholder in connection therewith (the “Voting Agreement Fees”), and any required filing fee
in connection with the filings made on behalf of the Stockholder described in this Agreement and the Merger Agreement; provided,
however, that the amount of costs and expenses the Company shall pay in the aggregate for the Voting Agreement Fees shall not
exceed $200,000, which such cap shall exclude any and all filing fees payable under the HSR Act. Except as otherwise provided herein,
all costs, fees and expenses incurred in connection with this Agreement and the transactions contemplated hereby, whether or not consummated,
shall be paid by the party incurring such cost or expense.
25. No
Additional Representations. Except for the representations and warranties expressly made in this Agreement, each party hereto
hereby agrees that no other party hereto makes, and each party hereto disclaims any reliance upon, any express or implied representation
or warranty whatsoever with respect to the matters set forth in this Agreement.
[Signature pages follow]
IN WITNESS WHEREOF, this Agreement has been duly
executed by the parties and is effective as of the date first set forth above.
| | /s/ Gregory B. Maffei |
| Gregory B. Maffei |
[Signature Page to Voting Agreement]
| |
Tripadvisor, Inc. |
| |
|
| |
By: |
/s/ Michael Noonan |
| |
Name: |
Michael Noonan |
| |
Title: |
Chief Financial Officer |
| |
|
| |
Liberty
TripAdvisor Holdings, Inc. |
| |
|
| |
By: |
/s/ Renee L. Wilm |
| |
Name: |
Renee L. Wilm |
| |
Title: |
Chief Legal Officer and Chief Administrative Officer |
[Signature Page to Voting Agreement]
SCHEDULE A
Stockholder Information
| Stockholder | |
Series A
Common Stock | | |
Series B
Common Stock | |
| Gregory B. Maffei | |
| 0 | | |
| 5,270,440 (1) | |
| (1) | Includes
beneficial ownership of 599,222 LTRPB shares that may be acquired upon exercise of, or which
relate to, stock options exercisable within 60 days after the date of this Agreement. |
Exhibit 10.3
EXECUTION VERSION
Liberty TripAdvisor Holdings, Inc.
12300 Liberty Boulevard
Englewood, Colorado 80112
December 18,
2024
Certares LTRIP LLC
350 Madison Avenue, 8th Floor
New York, NY 10017
Re: Waivers
Dear Ladies and Gentlemen:
Reference is made to that certain
(a) Agreement and Plan of Merger, dated as of the date hereof (as may be amended from time to time, the “Merger Agreement”),
by and among Tripadvisor, Inc., a Delaware corporation (“Parent”), Telluride Merger Sub Corp., a Delaware corporation
and an indirect wholly owned Subsidiary of Parent (“Merger Sub”), and Liberty TripAdvisor Holdings, Inc., a Delaware
corporation (the “Company”), pursuant to which, upon the terms and subject to the conditions set forth therein (i) Merger
Sub will merge with and into the Company (the “Merger”, and the time at which the Merger shall become effective, the
“Effective Time”), with the Company surviving the Merger, and (ii) immediately following the Merger, the Company,
as the surviving corporation in the Merger and an indirect wholly owned Subsidiary of Parent, will merge with and into ParentSub LLC,
a Delaware limited liability company and a direct wholly owned Subsidiary of Parent (the “ParentSub LLC Merger”, and,
together with the Merger, the “Combination”), with ParentSub LLC surviving the ParentSub LLC Merger, (b) Certificate
of Designations of 8% Series A Cumulative Redeemable Preferred Stock of the Company, dated March 15, 2020, as amended (the “Certificate
of Designations”) and (c) Investment Agreement, dated as of March 15, 2020, by and among the Company, Certares Holdings
LLC, Certares Holdings (Blockable) LLC, Certares Holdings (Optional) LLC and Gregory B. Maffei, as amended and assigned (the “Investment
Agreement”). Capitalized terms used and not defined herein have the meanings provided to such terms in the Merger Agreement.
In consideration of the covenants
and agreements contained in this Side Letter (and those set forth in the Merger Agreement), and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows:
1. Waiver
of Mandatory Redemption. Effective immediately upon the execution of this letter agreement by the parties hereto (this “Side
Letter”), pursuant to Section 16 of the Certificate of Designations, (i) each of Certares LTRIP LLC, a Delaware limited
liability company (“Certares”), on behalf of itself, and any former, current or future equityholders, controlling persons,
directors, officers, employees, agents or Affiliates or any former, current or future equityholder, controlling person, director, officer,
employee, general or limited partner, member, manager, advisor, agent or Affiliate of any of the foregoing, and any of their respective
successors or assigns (the “Certares Releasing Parties”), and the board of directors of the Company (through the execution
of this Side Letter by an authorized officer of the Company) hereby waives, during the period beginning on the date of execution of this
Side Letter by the parties hereto and ending on the Expiration Date (as defined below) (subject to the last sentence of Section 6
of this Side Letter) (the “Waiver Period”), (A) (1) the occurrence of the Mandatory Redemption Date and the
Redemption Default (as such terms are defined in the Certificate of Designations), (2) the failure of the Company to effect the Mandatory
Redemption (as such term is defined in the Certificate of Designations) of all or any portion of any shares of 8% Series A Cumulative
Redeemable Preferred Stock (the “Preferred Stock”) contemplated by Section 5 of the Certificate of Designations,
(3) the increase in the Applicable Rate to the Penalty Rate (as such terms are defined in the Certificate of Designations) contemplated
by Section 3(d) of the Certificate of Designations, (4) the right to appoint the Series A Preferred Redemption Director
(as defined in the Certificate of Designations) to the board of directors of the Company (and any duly authorized committee thereof) and
the corresponding increase in the total authorized number of directorships pursuant to Section 8 of the Certificate of Designations
and (5) any other right or requirement under the Certificate of Designations requiring the Company to redeem, repurchase or otherwise
acquire any of the shares of Preferred Stock, or otherwise take any other action in furtherance of any such redemption, repurchase or
acquisition pursuant to the Certificate of Designations (including, without limitation, actions described in Section 5 of the Certificate
of Designations) and (B) any and all notice, consent, approval or other rights that Certares possesses or may possess or may otherwise
be entitled to in connection with any of the transactions contemplated by the Merger Agreement pursuant to Section 6 of the Certificate
of Designations and the corresponding obligations on the part of the Company to provide any such notice or otherwise obtain such consent
or approval thereunder (except with respect to Certares’ consent or affirmative vote with respect to the proposed amendment contemplated
by the Certificate of Amendment pursuant to the Merger Agreement), (ii) Certares, on behalf of itself and the other Certares Releasing
Parties, hereby fully and forever releases any and all claims, rights, actions and causes of action, arbitration or suit of any kind,
or other legal, equitable or other proceeding, whether known or unknown to the fullest extent the law allows, that any Certares Releasing
Party has ever had, now has or hereafter can, shall or may have against (A) the Company and any of its former, current or future
equityholders, controlling persons, directors, officers, employees, agents or Affiliates or any former, current or future equityholder,
controlling person, director, officer, employee, general or limited partner, member, manager, advisor, agent or Affiliate of any of the
foregoing, any of their respective successors and assigns (the “Company Released Parties”) that arise from or relate
to the waiver contained in Section 1(i) and (B) Parent and any of its former, current or future equityholders (other
than the Company), controlling persons, directors, officers, employees, agents or Affiliates or any former, current or future equityholder,
controlling person, director, officer, employee, general or limited partner, member, manager, advisor, agent or Affiliate of any of the
foregoing, any of their respective successors and assigns (the “Parent Released Parties”) that arise from or relate
to the waiver contained in Section 1(i), and (iii) each of Certares, on behalf of itself and the other Certares Releasing
Parties, and the board of directors of the Company (through the execution of this Side Letter by an authorized officer of the Company),
hereby irrevocably waives any rights it has or may have during the Waiver Period to rescind, annul, cancel, modify, amend or otherwise
change the terms of the waiver contained in Section 1(i); provided, however, that nothing herein shall limit or impair the
right of Certares or any other Certares Releasing Party to receive the Series A Preferred Share Merger Consideration pursuant to
and in accordance with the terms of the Merger Agreement and the Company Charter Amendment. For the avoidance of doubt, the parties hereto
(a) acknowledge and confirm that any and all rights of Certares or any other Certares Releasing Party to exercise the Put Option
under Section 5(g) of the Certificate of Designations was previously irrevocably waived pursuant to Section 6.2 of that
certain Stock Repurchase Agreement, dated as of March 22, 2021, by and between the Company and Certares (the “Repurchase
Agreement”), and that such waiver shall not be rescinded, annulled, cancelled, modified, amended or otherwise changed by the
terms in this Side Letter and (b) acknowledge and agree that notwithstanding anything to the contrary set forth in the Certificate
of Designations (including, without limitation, Section 5 thereof), by virtue of the waivers provided by Certares herein, during
the Waiver Period, neither the Company nor Parent shall be required to (x) redeem, repurchase or otherwise acquire any shares of
Preferred Stock or otherwise take any action required under the Certificate of Designations in furtherance of any such redemption, repurchase
or acquisition (including, without limitation, pursuant to Section 5 thereof) or that would have otherwise been required as a result
of the occurrence of the Mandatory Redemption Date or the Redemption Default (including, without limitation, pursuant to Section 3
or Section 8 of the Certificate of Designations) or (y) provide any notice, or obtain the consent or affirmative vote of Certares,
in connection with any of the transactions contemplated by the Merger Agreement pursuant to Section 6 of the Certificate of Designations,
except with respect to Certares’ consent or affirmative vote with respect to the proposed amendment contemplated by the Certificate
of Amendment pursuant to the Merger Agreement.
2. Waiver
of Other Rights. Effectively immediately upon the execution of this Side Letter by the parties hereto, Certares, on behalf of itself
and each other Certares Releasing Party, hereby (i) waives, during the Waiver Period, all notice, consent, approval, consultation
or other rights that Certares holds or may hold pursuant to Section 6.1(b) of the Registration Rights Agreement, dated as of
March 26, 2020, by and between the Company and Certares (as amended from time to time, the “Registration Rights Agreement”)
and Sections 4.5(ii), 4.5(iii), 4.5(iv), 4.5(v), 4.5(vii), 4.5(viii) (solely with respect to the Parent Loan Facility), 4.5(ix) (to
the extent relating to actions otherwise described herein), 4.6(b)(4), 4.9, 4.10, 4.11 and 4.12 of the Investment Agreement, in each case,
with respect to the Merger Agreement and the transactions contemplated thereby (including, without limitation, the Merger, the Forward
Contract transactions and the Parent Loan Facility transactions) and with respect to the Company Stockholders Meeting, (ii) fully
and forever releases any and all claims, rights, actions and causes of action, arbitration or suit of any kind, or other legal, equitable
or other proceeding, whether known or unknown to the fullest extent the law allows, that any Certares Releasing Party has ever had, now
has or hereafter can, shall or may have against (A) the Company, (B) any of the Company Released Parties, (C) Parent and
(D) any of the Parent Released Parties that arise from or relate to the waiver contained in Section 2(i) and (iii) irrevocably
waives any rights it has or may have during the Waiver Period to rescind, annul, cancel, modify, amend or otherwise change the terms of
the waiver contained in Section 2(i).
3. Parent
Loan Facility Acknowledgement and Agreement. Certares, on behalf of itself and each other Certares Releasing Party, hereby (i) acknowledges
that it has reviewed and understands the proposed terms of the Parent Loan Facility contemplated by the Merger Agreement, (ii) agrees
that it is in the best interests of the Company to enter into the Parent Loan Facility contemplated by the Merger Agreement and (iii) consents
to the Company’s negotiation, execution, delivery and performance of its obligations under the Parent Loan Facility in the manner
consistent with the terms for the Parent Loan Facility set forth in the Merger Agreement notwithstanding anything in the Investment Agreement
to the contrary.
4. Investment
Agreement and Registration Rights Agreement. The Company and Certares each agree that effective upon the Effective Time (if it occurs),
and notwithstanding Sections 5 and 6 of the Investment Agreement and Section 7.7 of the Registration Rights Agreement, each of the
Investment Agreement and Registration Rights Agreement is terminated and will thereafter cease to be of any further force and effect,
and, notwithstanding anything to the contrary contained therein, no party thereto will thereafter have any rights, claims or obligations
thereunder.
5. Transfers
and Challenges. Certares, on behalf of itself and each other Certares Releasing Party: (i) agrees and acknowledges that, in addition
to the other restrictions on Transfer (as defined in the Voting Agreement (as defined below)) contained in the Voting Agreement, it shall
be a condition to the Transfer of any shares of Preferred Stock that the transferee thereof shall agree to and become bound by the waiver
and all of the other agreements contained in Sections 1 through 5 of this Side Letter and (ii) covenants and agrees
that, during the Waiver Period, it will not initiate, join in or otherwise voluntarily support any claim, suit, action, arbitration or
other legal, equitable or other proceeding seeking (directly or indirectly) to challenge the enforceability of, modify, invalidate, revoke,
declare ineffective or otherwise set aside Sections 1 through 3 of this Side Letter, including the waiver and agreements
contained in Sections 1 through 3 of this Side Letter.
6. Term
and Termination. This Side Letter shall be effective upon the execution of this Side Letter by the parties hereto. This Side Letter
shall automatically terminate upon the earlier to occur of (a) such date and time as the Merger Agreement shall have been validly
terminated in accordance with Article VIII thereof and (b) the written agreement of Parent, the Company and Certares (the “Expiration
Date”). Effective upon such termination and without any action of any party hereto, this Side Letter shall forthwith become
null and void and of no further effect and the obligations and waivers of the parties under this Side Letter shall terminate, without
any further liability or obligation of any party; provided, however, that (i) nothing contained in this Side Letter (including this
sentence) will relieve any party from liability for any breach of any of its waivers, covenants or agreements set forth herein prior to
such termination and (ii) notwithstanding anything to the contrary contained herein, the releases contained in Sections 1
and 2 as they relate to the Waiver Period will survive the termination of this Side Letter and will continue in full force and
effect. Certares acknowledges and agrees, on its own behalf and each other Certares Releasing Party, that the waivers set forth in Sections
1(i) and 2(i) shall automatically become unconditional and irrevocable in all respects at the Effective Time (if
it occurs) and that as of such time (if it occurs) Certares, on its own behalf and each other Certares Releasing Party, hereby unconditionally
and irrevocably waives any rights it has or may have during the Waiver Period to rescind, annul, cancel, modify, amend or otherwise change
the terms of such waivers.
7. Entire
Agreement. This Side Letter the Merger Agreement, that certain voting agreement, dated as of the date hereof (the “Voting
Agreement”), by and between Certares, Parent and the Company, and the Repurchase Agreement constitute the entire agreement among
the parties with respect to the subject matter hereof and supersede all other prior agreements and understandings, both written and oral,
among the parties with respect to the subject matter hereof. Nothing in this Side Letter, express or implied, is intended to or shall
confer upon any person not a party to this Side Letter any right, benefit or remedy of any nature whatsoever under or by reason of this
Side Letter.
8. Assignment.
Neither this Side Letter nor any of the rights or obligations hereunder shall be assigned by any of the parties hereto without the prior
written consent of the other parties hereto. Any attempted assignment in violation of this Section 8 shall be null and void
ab initio. Subject to the preceding two sentences, this Side Letter will be binding upon, inure to the benefit of and be enforceable by,
the parties hereto and their respective successors and assigns.
9. Further
Assurances. Each party hereto agrees, from time to time, at the reasonable request of the other parties hereto and without further
consideration, to execute and deliver such additional consents, documents and other instruments and to take such further actions as are
reasonably requested to effectuate the matters covered by this Side Letter.
10. Remedies/Specific
Enforcement. Each of the parties hereto agrees that this Side Letter is intended to be legally binding and specifically enforceable
pursuant to its terms and that the other parties hereto would be irreparably harmed if any of the provisions of this Side Letter are not
performed in accordance with its specific terms and that monetary damages would not provide adequate remedy in such event. Accordingly,
in the event of any breach or threatened breach by any party hereto of any covenant or obligation contained in this Side Letter, in addition
to any other remedy to which the other parties hereto may be entitled (whether at law or in equity), the other parties hereto shall be
entitled to injunctive relief to prevent breaches or threatened breaches of this Side Letter and to specifically enforce the terms and
provisions hereof, and each party hereto hereby waives any defense in any action for specific performance or an injunction or other equitable
relief, that a remedy at law would be adequate. Each party hereto further agrees that no party or any other person or entity shall be
required to obtain, furnish or post any bond or similar instrument in connection with or as a condition to obtaining any remedy referred
to in this paragraph, and each party hereto irrevocably waives any right to require the obtaining, furnishing or posting of any such bond
or similar instrument.
11. Governing
Law; Jurisdiction; Venue; Waiver of Jury Trial. Sections 16 and 20 of the Voting Agreement are hereby incorporated herein by reference
mutatis mutandis.
12. Notices.
All notices, requests, claims, demands and other communications under this Side Letter shall be in writing and shall be deemed given (a) on
the date of delivery if delivered personally or sent via e-mail (without any “bounceback” or other notice of nondelivery)
or (b) on the first (1st) Business Day following the date of dispatch if sent by a nationally recognized overnight courier (providing
proof of delivery), in each case to the parties hereto at the following addresses (or at such other address for a party as shall be specified
by like notice):
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If to the Company: |
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Liberty TripAdvisor Holdings, Inc. |
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12300 Liberty Boulevard |
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Englewood, CO 80112 |
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Attention: |
Chief Legal Officer |
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E-Mail: |
[Separately provided] |
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with a copy to (which shall not constitute notice): |
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O’Melveny & Myers L.L.P. |
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Two Embarcadero Center, 28th Floor |
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San Francisco, CA 94111 |
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Attention: |
C. Brophy Christensen; Noah Kornblith |
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E-mail: |
bchristensen@omm.com; nkornblith@omm.com |
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if to Parent, to: |
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Tripadvisor, Inc. |
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400 1st Avenue |
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Needham, MA 02494 |
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Attention: |
Seth J. Kalvert |
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Email: |
[Separately provided] |
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with a copy to (which shall not constitute notice): |
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Weil, Gotshal & Manges LLP |
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767 Fifth Avenue |
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New York, New York 10153 |
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Attention: |
Michael J. Aiello; Matthew J. Gilroy |
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Email: |
michael.aiello@weil.com; matthew.gilroy@weil.com |
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If to Certares: |
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Certares LTRIP LLC |
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c/o Certares Management LLC |
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350 Madison Avenue, 8th Floor |
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New York, NY 10017 |
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Attention: |
Tom LaMacchia, Managing Director & General Counsel |
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E-Mail: |
[Separately provided] |
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With a copy (which shall not constitute notice) to: |
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Simpson Thacher and Bartlett LLP |
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425 Lexington Avenue |
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New York, NY 10017 |
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Attention: |
Anthony Vernace; Adam Cromie |
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E-mail: |
avernace@stblaw.com; adam.cromie@stblaw.com |
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or such other address, email address or facsimile
number as such party may hereafter specify by like notice to the other parties hereto.
13. Severability.
Whenever possible, each provision or portion of any provision of this Side Letter shall be interpreted in such manner as to be effective
and valid under applicable Law. In the event that any provision of this Side Letter, or the application thereof, becomes or is declared
by a court of competent jurisdiction to be invalid, illegal, void or unenforceable, the remainder of this Side Letter will continue in
full force and effect and the application of such provision will be interpreted so as reasonably to effect the intent of the parties hereto.
Upon such determination that any term or other provision is invalid, illegal, void or incapable of being enforced, the parties hereto
shall negotiate in good faith to modify this Side Letter so as to effect the original intent of the parties as closely as possible to
the fullest extent permitted by applicable Law in an acceptable manner to the end that the transactions contemplated hereby are fulfilled
to the greatest extent possible.
14. Amendments;
Waivers. Any provision of this Side Letter may be modified, amended or waived if, and only if, such modification, amendment or waiver
is in writing and signed (a) in the case of an amendment, by Parent, the Company and Certares, and (b) in the case of a waiver,
by the party against whom the waiver is to be effective. No failure or delay by any party in exercising any right, power or privilege
hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise
thereof or the exercise of any other right, power or privilege.
15. Counterparts.
The parties hereto may execute this Side Letter in one or more counterparts, including by facsimile or other electronic signature. All
the counterparts will be construed together and will constitute one agreement. The exchange of copies of this Side Letter and of signature
pages by facsimile or e-mail shall constitute effective execution and delivery of this Side Letter as to the parties hereto and may
be used in lieu of the original agreement for all purposes. Signatures of the parties hereto transmitted by facsimile or e-mail shall
be deemed to be their original signatures for all purposes.
16. Interpretation.
When a reference is made in this Side Letter to a Section, such reference shall be to a Section of this Side Letter unless otherwise
indicated. The headings contained in this Side Letter are for reference purposes only and shall not affect in any way the meaning or interpretation
of this Side Letter. Whenever the words “include”, “includes” or “including” are used in this Side
Letter, they shall be deemed to be followed by the words “without limitation”. The words “hereof”, “herein”
and “hereunder” and words of similar import when used in this Side Letter shall refer to this Side Letter as a whole and not
to any particular provision of this Side Letter. When this Side Letter contemplates a certain number of securities, as of a particular
date, such number of securities shall be deemed to be appropriately adjusted to account for stock splits, dividends, recapitalizations,
combinations of shares or other changes affecting such securities.
17. Expenses.
In any action or suit at law or in equity to enforce this Side Letter or the rights of any of the parties hereunder, the prevailing party
in such action or suit shall be entitled to receive reimbursement for all reasonable costs and expenses (including reasonable attorneys’
fees) incurred in such action or suit. Except as otherwise provided herein, all costs, fees and expenses incurred in connection with this
Side Letter and the transactions contemplated hereby, whether or not consummated, shall be paid by the party incurring such cost or expense.
[Signature Page Follows]
If the foregoing
is consistent with your understanding, please so indicate by your signature below, which will constitute the agreement of the parties
hereto.
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LIBERTY TRIPADVISOR HOLDINGS, INC. |
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By: |
/s/
Renee L. Wilm |
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Name: |
Renee L. Wilm |
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Title: |
Chief Legal Officer and Chief Administrative Officer |
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TRIPADVISOR, INC. |
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By: |
/s/ Michael Noonan |
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Name: |
Michael Noonan |
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Title: |
Chief Financial Officer |
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CERTARES LTRIP LLC |
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By: |
Certares Management LLC, its manager |
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By: |
/s/
Tom LaMacchia |
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Name: |
Tom LaMacchia |
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Title: |
Managing Director & General Counsel |
[Signature Page to Certares Side Letter]
Exhibit 99.1
Tripadvisor and Liberty TripAdvisor Announce
Planned Merger
NEEDHAM, MA, December 19, 2024 (PRNewswire) -- Tripadvisor, Inc.
(NASDAQ: TRIP) (“Tripadvisor”) and Liberty TripAdvisor Holdings, Inc. (OTCMKTS: LTRPA, LTRPB) (“Liberty TripAdvisor”)
announced that they have entered into an agreement and plan of merger (the “Merger Agreement”) whereby Tripadvisor will acquire
Liberty TripAdvisor (the “Merger”). In connection with the Merger, (i) the shares of Liberty TripAdvisor Series A
Common Stock and Series B Common Stock issued and outstanding immediately prior to the effective time of the Merger will be converted
into the right to receive $0.2567 per share in cash (without interest), totaling approximately $20 million in the aggregate; (ii) all
of the shares of Liberty TripAdvisor’s 8% Series A Cumulative Redeemable Preferred Stock issued and outstanding immediately
prior to the effective time of the Merger will be converted into the right to receive, in the aggregate, $42,471,000 in cash, without
interest, and 3,037,959 validly issued, fully paid and non-assessable shares of Tripadvisor common stock; and (iii) Liberty TripAdvisor’s
0.50% Exchangeable Senior Debentures (the “Exchangeable Debentures”) of approximately $330 million will be repaid in accordance
with their terms. The transaction is expected to close in the second quarter of 2025.
Liberty TripAdvisor owns 16,445,894 shares of Tripadvisor common
stock and 12,799,999 shares of Tripadvisor Class B common stock, of which 2,422,210 shares of Tripadvisor common stock are
pledged as collateral against Liberty TripAdvisor’s variable prepaid forward contract (the “VPF”). Upon
consummation of the Merger, Tripadvisor plans to retire approximately 27 million shares of Tripadvisor common stock currently held
by Liberty TripAdvisor, net of approximately 2.4 million shares underlying the VPF. Accordingly, Tripadvisor views this transaction
as effectively a repurchase of the Tripadvisor common stock held by Liberty TripAdvisor. The
implied share price for the acquisition of such shares of Tripadvisor common stock from Liberty Tripadvisor is $16.21 (which
reflects a premium of approximately 16% based on the 10-day volume-weighted average share price as of December 17, 2024). The
aggregate transaction value is approximately $435 million. The transaction will result in the simplification of Tripadvisor’s
capital structure into a single class of shares with no controlling stockholder, thereby creating more strategic flexibility for
Tripadvisor.
“We are pleased with the agreement reached with Liberty TripAdvisor,
and I want to thank the Special Committee for its diligent work on behalf of all stakeholders,” said Tripadvisor President &
Chief Executive Officer Matt Goldberg. “The transaction presents a unique and favorable opportunity to simplify our capital structure,
create strategic flexibility, and retire a large portion of our shares, while maintaining a healthy balance sheet. We believe this transaction
marks a new era for Tripadvisor and we are excited to continue to pursue our strategic vision across travel and experiences.”
“We believe this transaction maximizes value for Liberty TripAdvisor
stakeholders given the challenges of its capital structure that were exacerbated during COVID. This will simplify Tripadvisor’s
corporate structure and allow management to focus on their go forward operating strategy,” said Greg Maffei, Chairman of the Board
of Tripadvisor and President and Chief Executive Officer of Liberty TripAdvisor. “There is value to be unlocked at Tripadvisor,
particularly in experiences, and the company will be more nimble to pursue these opportunities with a simplified corporate structure.
We appreciate the work that Tripadvisor and Certares have done to reach this agreement.”
The transaction was unanimously recommended by the Tripadvisor
Special Committee comprised of independent and disinterested directors and advised by legal and financial advisors. The Board of
Directors of both Tripadvisor and Liberty TripAdvisor have approved this transaction. However, closing of the Merger is subject to
certain customary conditions, including the adoption of the Merger Agreement by the holders of a majority of the aggregate voting
power of the outstanding shares of Liberty TripAdvisor Series A and Series B common stock entitled to vote thereon. If the
transaction has not closed as of March 27, 2025, Tripadvisor will provide a loan to Liberty TripAdvisor for any amounts that may be
needed to address any Exchangeable Debentures that are put to Liberty TripAdvisor on March 27, 2025. The loan will be secured by
shares of Tripadvisor common stock and Class B common stock held by Liberty TripAdvisor, and will be canceled at closing of the
transaction (or, in the event the Merger is not completed, will become due and payable shortly after the termination of the
transaction agreements).
Greg Maffei, Chairman, President and Chief Executive Officer of Liberty
TripAdvisor, has also agreed to vote, subject to certain exceptions, shares beneficially owned by him, representing approximately 39%
of the aggregate voting power of Liberty TripAdvisor, in favor of the transaction.
Tripadvisor
will post a presentation with a summary of these details on its investor relations website at https://ir.tripadvisor.com.
Centerview Partners LLC is serving as financial advisor to
Tripadvisor’s Special Committee. Weil, Gotshal & Manges LLP is serving as legal counsel to Tripadvisor’s
Special Committee and Goodwin Procter LLP is serving as legal counsel to Tripadvisor. Citi is serving as financial advisor to
Liberty TripAdvisor and O’Melveny & Myers LLP is serving as legal counsel to Liberty TripAdvisor.
About Tripadvisor, Inc.
The Tripadvisor Group operates as a family of brands that connects
people to experiences worth sharing, and aims to be the world’s most trusted source for travel and experiences. We leverage our
brands, technology, and capabilities to connect our global audience with partners through rich content, travel guidance, and two-sided
marketplaces for experiences, accommodations, restaurants, and other travel categories. The subsidiaries of Tripadvisor, Inc. (Nasdaq:
TRIP), own and operate a portfolio of travel media brands and businesses, including Tripadvisor, Viator, and TheFork.
About Liberty TripAdvisor Holdings, Inc.
Liberty TripAdvisor Holdings, Inc. (OTCMKTS: LTRPA, LTRPB) consists
of its subsidiary Tripadvisor. Tripadvisor operates as a family of brands that connects people to experiences worth sharing, and aims
to be the world's most trusted source for travel and experiences. Tripadvisor leverages its brands, technology, and capabilities to connect
its global audience with partners through rich content, travel guidance, and two-sided marketplaces for experiences, accommodations, restaurants,
and other travel categories.
Cautionary Note Regarding Forward Looking Statements
This Press Release includes certain forward-looking statements within
the meaning of Section 27A of the Securities Act of 1933, as amended, and Section 21E of the Securities Exchange Act of 1934,
as amended, including certain statements relating to the completion of the proposed transaction, the timing of the proposed transaction
and other matters related to such proposed transaction. All statements other than statements of historical fact are “forward-looking
statements” for purposes of federal and state securities laws. These forward-looking statements generally can be identified by phrases
such as “possible,” “potential,” “intends” or “expects” or other words or phrases of similar
import or future or conditional verbs such as “will,” “may,” “might,” “should,” “would,”
“could,” or similar variations. These forward-looking statements involve many risks and uncertainties that could cause actual
results and the timing of events to differ materially from those expressed or implied by such statements, including, but not limited to:
historical financial information may not be representative of future results; there may be significant transaction costs in connection
with the proposed transaction (including significant tax liability); any effect of the announcement of the proposed transaction on the
ability of Tripadvisor and Liberty TripAdvisor to operate their respective businesses and retain and hire key personnel and to maintain
favorable business relationships; the parties may not realize the potential benefits of the proposed transaction in the near term or at
all; the satisfaction of all conditions to the proposed transaction (including stockholder approvals) may not be achieved; the proposed
transaction may not be consummated; there may be liabilities that are not known, probable or estimable at this time; the proposed transaction
may result in the diversion of management’s time and attention to issues relating to the proposed transaction; unfavorable outcome
of legal proceedings; risks related to disruption of management time from ongoing business operations due to the proposed transaction;
risks related to Liberty TripAdvisor’s failure to repay the Parent Loan Facility when due; risks relating to Tripadvisor operating
without a controlling stockholder after consummation of the proposed transaction; risks inherent to the business may result in additional
strategic and operational risks, which may impact Tripadvisor’s and/or Liberty TripAdvisor’s risk profiles, which each company
may not be able to mitigate effectively; and other risks and uncertainties detailed in periodic reports that Tripadvisor and Liberty TripAdvisor
file with the SEC. These forward-looking statements speak only as of the date of this Press Release, and Tripadvisor and Liberty TripAdvisor
expressly disclaim any obligation or undertaking to disseminate any updates or revisions to any forward-looking statement contained herein
to reflect any change in Tripadvisor’s or Liberty TripAdvisor’s expectations with regard thereto or any change in events,
conditions or circumstances on which any such statement is based. Please refer to the publicly filed documents of Tripadvisor and Liberty
TripAdvisor, including their most recent Forms 10-K and 10-Q, as such risk factors may be amended, supplemented or superseded from time
to time by other reports Tripadvisor or Liberty TripAdvisor subsequently file with the SEC, for additional information about Tripadvisor
and Liberty TripAdvisor and about the risks and uncertainties related to Tripadvisor’s and Liberty TripAdvisor’s businesses
which may affect the statements made in this Press Release.
No Offer or Solicitation
This communication is not intended to, and does not, constitute a proxy
statement or solicitation of a proxy, consent, vote or authorization with respect to any securities or in respect of the Merger. This
communication does not constitute an offer to sell or the solicitation of an offer to buy any securities or a solicitation of any vote
or approval, nor shall there be any sale of securities in any jurisdiction in which such offer, solicitation or sale would be unlawful
prior to registration or qualification under the securities laws of any such jurisdiction. No offer of securities shall be made except
by means of a prospectus meeting the requirements of Section 10 of the Securities Act.
Additional Information
In connection with the Merger, Liberty TripAdvisor intends to file
with the SEC the relevant materials, including a proxy statement on Schedule 14A (the “Proxy Statement”) in preliminary and
definitive form, the definitive version of which will be sent or provided to Liberty TripAdvisor’s stockholders, and a Schedule
13E-3 transaction statement. Tripadvisor or Liberty TripAdvisor may also file other documents with the SEC regarding the Merger. This
document is not a substitute for the Proxy Statement, the Schedule 13E-3 transaction statement or any other relevant document which Liberty
TripAdvisor may file with the SEC. Promptly after filing its definitive Proxy Statement with the SEC, Liberty TripAdvisor will mail or
provide the definitive Proxy Statement and a proxy card to each stockholder of Liberty TripAdvisor entitled to vote at the meeting relating
to the Merger. INVESTORS AND SECURITY HOLDERS ARE URGED TO READ THE PROXY STATEMENT AND THE SCHEDULE 13E-3 TRANSACTION STATEMENT WHEN
THEY BECOME AVAILABLE, TOGETHER WITH ALL RELEVANT SEC FILINGS REGARDING THE PROPOSED TRANSACTION, AND ANY OTHER RELEVANT DOCUMENTS THAT
ARE FILED OR WILL BE FILED (INCLUDING AS EXHIBITS THEREWITH) WITH THE SEC (WHEN THEY ARE AVAILABLE), AS WELL AS ANY AMENDMENTS OR SUPPLEMENTS
TO THESE DOCUMENTS, CAREFULLY AND IN THEIR ENTIRETY BEFORE MAKING ANY VOTING OR INVESTMENT DECISION WITH RESPECT TO THE TRANSACTIONS BECAUSE
THEY CONTAIN OR WILL CONTAIN IMPORTANT INFORMATION ABOUT THE MERGER AND RELATED MATTERS. Investors and security holders may obtain free
copies of the Proxy Statement, the Schedule 13E-3 transaction statement and other documents that are filed or will be filed with the SEC
by Liberty TripAdvisor or Tripadvisor (when they are available) through the website maintained by the SEC at www.sec.gov, Liberty TripAdvisor’s
investor relations website at www.libertytripadvisorholdings.com/investors or Tripadvisor’s investor relations website at ir.tripadvisor.com.
Participants in a Solicitation
Tripadvisor anticipates that the following individuals may be participants
(the “Tripadvisor Participants”) in the solicitation of proxies from holders of Liberty TripAdvisor Series A Common Stock
and Series B Common Stock in connection with the proposed transaction: Gregory B. Maffei, Chairman of the Tripadvisor Board, Matt
Goldberg, President and Chief Executive Officer and Director, Trynka Shineman Blake, Betsy Morgan, Jay C. Hoag, Greg O’Hara, Jeremy
Philips, Albert E. Rosenthaler, Jane Jie Sun and Robert S. Wiesenthal, all of whom are members of the Tripadvisor Board, Mike Noonan,
Chief Financial Officer, and Seth J. Kalvert, Chief Legal Officer and Secretary. Information about the Tripadvisor Participants, including
a description of their direct or indirect interests, by security holdings or otherwise, and Tripadvisor’s transactions with related
persons is set forth in the sections entitled “Proposal No. 1: Election of Directors”, “Proposal No. 3: Advisory
Vote on Compensation of Named Executive Officers”, “Proposal No. 4: Advisory Vote on the Frequency of Future Advisory
Resolutions to Approve The Compensation Of Tripadvisor’s Named Executive Officers”, “Executive Officers”, “Compensation
Discussion and Analysis”, “CEO Pay Ratio”, “Pay Versus Performance”, “Executive Compensation”,
“Director Compensation”, “Security Ownership of Certain Beneficial Owners and Management” and “Certain Relationships
and Related Transactions” contained in Tripadvisor’s definitive proxy statement for its 2024 annual meeting of shareholders,
which was filed with the SEC on April 29, 2024 (which is available at https://www.sec.gov/ix?doc=/Archives/edgar/data/1526520/000095017024049349/trip-20240426.htm)
and other documents subsequently filed by Tripadvisor with the SEC. To the extent holdings of Tripadvisor capital stock by the directors
and executive officers of Tripadvisor have changed from the amounts of Tripadvisor capital stock held by such persons as reflected therein,
such changes have been or will be reflected on Statements of Change in Ownership on Form 4 filed with the SEC. Additional information
regarding the Tripadvisor Participants in the proxy solicitation and a description of their interests will be contained in the proxy statement
for Liberty TripAdvisor’s special meeting of stockholders and other relevant materials to be filed with the SEC in respect of the
contemplated transactions when they become available. These documents can be obtained free of charge from the sources indicated above.
Liberty TripAdvisor anticipates that the following individuals will
be participants (the “Liberty TripAdvisor Participants”) in the solicitation of proxies from holders of Liberty TripAdvisor’s
LTRPA and LTRPB common stock in connection with the proposed transaction: Gregory B. Maffei, Chairman of the Liberty TripAdvisor Board
and Liberty TripAdvisor’s President and Chief Executive Officer, Christy Haubegger, Michael J. Malone, Chris Mueller, Larry E. Romrell,
Albert E. Rosenthaler and J. David Wargo, all of whom are members of the Liberty TripAdvisor Board, Brian J. Wendling, Liberty TripAdvisor’s
Senior Vice President and Chief Financial Officer, and Renee L. Wilm, Liberty TripAdvisor’s Chief Legal Officer and Chief Administrative
Officer. Information regarding the Liberty TripAdvisor Participants, including a description of their direct or indirect interests, by
security holdings or otherwise, and Liberty TripAdvisor’s transactions with related persons can be found under the captions “Proposal
1 – The Election of Directors Proposal”, “Director Compensation”, “Proposal 3 – The
Say-On-Pay Proposal”, “Executive Officers”, “Executive Compensation”, “Security Ownership of Certain
Beneficial Owners and Management—Security Ownership of Management” and “Certain Relationships and Related Party Transactions”
contained in Liberty TripAdvisor’s definitive proxy statement for its 2024 annual meeting of stockholders (the “Liberty Proxy
Statement”), which was filed with the SEC on April 24, 2024 and is available at: https://www.sec.gov/ix?doc=/Archives/edgar/data/1606745/000110465924051281/tm242814d2_def14a.htm.
To the extent that certain Liberty TripAdvisor Participants or their affiliates have acquired or disposed of security holdings since the
“as of” date disclosed in the Liberty Proxy Statement, such transactions have been or will be reflected on Statements of Change
in Ownership on Form 4 or amendments to beneficial ownership reports on Schedules 13D filed with the SEC, which are available at:
https://www.sec.gov/edgar/browse/?CIK=1606745&owner=exclude. Additional information regarding the Liberty TripAdvisor Participants
in the proxy solicitation and a description of their interests will be contained in the proxy statement for Liberty TripAdvisor’s
special meeting of stockholders and other relevant materials to be filed with the SEC in respect of the contemplated transactions when
they become available. These documents can be obtained free of charge from the sources indicated above.
Tripadvisor Investor Relations contact
ir@tripadvisor.com
Tripadvisor Media contact
northamericapr@tripadvisor.com
Liberty TripAdvisor Holdings, Inc. contact
Shane Kleinstein, 720-875-5432
Source: Tripadvisor, Inc. and Liberty TripAdvisor Holdings, Inc.
TRIP-G
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