SC 13E-3

 

 

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

 

 

SCHEDULE 13E-3

RULE 13E-3 TRANSACTION STATEMENT UNDER SECTION 13(E)

OF THE SECURITIES ACT OF 1934

 

 

KNOWBE4, INC.

(Name of the Issuer)

 

 

KnowBe4, Inc.

Oranje Merger Sub, Inc.

Oranje Holdco, LLC

VEPF VII SPV I, L.P.

VEPF VII SPV I Holdings, L.P.

Vista Equity Partners Fund VII GP, L.P.

VEPF VII GP, Ltd.

Robert F. Smith

KKR Knowledge Investors L.P.

Stephen Shanley

Elephant Partners I, L.P.

Elephant Partners II, L.P., for itself and as nominee for Elephant Partners II-B, L.P.

Elephant Partners II-B, L.P.

Elephant Partners 2019 SPV-A, L.P.

Jeremiah Daly

Sjoerd Sjouwerman

Sjouwerman Enterprises Limited Partnership

Sjouwerman Management, LLC

(Names of Persons Filing Statement)

Class A Common Stock, par value $0.00001 per share

(Title of Class of Securities)

49926T104

(CUSIP Number of Class of Securities)

 

 

 

Sjoerd Sjouwerman

Chief Executive Officer

KnowBe4, Inc.

33 N. Garden Avenue, Suite 1200

Clearwater, FL 33755

(855) 566-9234

 

Christina Lema

Oranje Merger Sub, Inc.

Oranje Holdco, LLC

VEPF VII SPV I, L.P.

VEPF VII SPV I Holdings, L.P.

Vista Equity Partners Fund VII GP, L.P.

VEPF VII GP, Ltd.

Robert F. Smith

c/o Vista Equity Partners Management, LLC

Four Embarcadero Center,

20th Floor

San Francisco, CA 94111

(415) 765-6500

 

Stephen Shanley 

KKR Knowledge Investors L.P. 

c/o Kohlberg Kravis Roberts &  Co. L.P. 

30 Hudson Yards 

New York, NY 10001 

(212) 750-8300 

  

Elephant Partners I, L.P.

Elephant Partners II, L.P., for itself and as nominee for Elephant Partners II-B, L.P.

Elephant Partners II-B, L.P.

Elephant Partners 2019 SPV-A, L.P.

Jeremiah Daly

c/o JAHD Management Company, LLC

8 Newbury Street, 6th Floor

Boston, MA 02116

(617) 913-6611

 

Sjoerd Sjouwerman

Sjouwerman Enterprises Limited Partnership

Sjouwerman Management, LLC

144 Willadel Drive, Belleair, FL 33756

(855) 566-9234

(Name, Address, and Telephone Number of Person Authorized to Receive Notices and Communications on Behalf of the Persons Filing Statement)

 

 

With copies to

 

Todd Cleary

Douglas K. Schnell

Megan J. Baier

Catherine Riley Tzipori

Wilson Sonsini Goodrich & Rosati

Professional Corporation

1301 Avenue of the Americas

New York, NY 10019

(212) 999-5800

 

Daniel E. Wolf, P.C.

David M. Klein, P.C.

Chelsea Darnell

Kirkland & Ellis LLP

601 Lexington Ave.

New York, NY 10022

(212) 446-4800

 

Saee Muzumdar

Gibson, Dunn & Crutcher LLP

200 Park Avenue

New York, NY 10166

(212) 351-4000

 

Adam Stella

Jake Lloyd

Moulton Moore Stella LLP

Frank Gehry Building

2431 Main Street, Suite C

Santa Monica, CA 90405

(310) 399-0950

 

Bradley Faris

Hans Brigham

Latham & Watkins LLP

330 North Wabash Ave.

Chicago, IL 60611

(312) 876-7700

 

 

This statement is filed in connection with (check the appropriate box):

 

a. 

 

  The filing of solicitation materials or an information statement subject to Regulation 14A, Regulation 14C or Rule 13e-3(c) under the Securities Exchange Act of 1934.

b. 

 

  The filing of a registration statement under the Securities Act of 1933.

c. 

 

  A tender offer.

d. 

 

  None of the above.

Check the following box if the soliciting materials or information statement referred to in checking box (a) are preliminary copies: ☒

Check the following box if the filing is a final amendment reporting the results of the transaction: ☐

Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of this transaction, passed upon the merits or fairness of this transaction, or passed upon the adequacy or accuracy of the disclosure in this transaction statement on Schedule 13e-3. Any representation to the contrary is a criminal offense.

 

 

 


INTRODUCTION

This Transaction Statement on Schedule 13E-3 (this “Transaction Statement”) is being filed with the U.S. Securities and Exchange Commission (the “SEC”) pursuant to Section 13(e) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), jointly by the following persons (each, a “Filing Person,” and collectively, the “Filing Persons”): (1) KnowBe4, Inc., a Delaware corporation (“KnowBe4” or the “Company”) and the issuer of the Class A common stock, par value $0.00001 per share (the “KnowBe4 Class A common stock” and together with KnowBe4’s Class B common stock, par value $0.00001 per share (the KnowBe4 Class B common stock”), the “KnowBe4 common stock”) that is the subject of the Rule 13e-3 transaction; (2) Oranje Holdco, LLC, a Delaware limited liability company (“Parent”); (3) Oranje Merger Sub, Inc., a Delaware corporation and wholly owned subsidiary of Parent (“Merger Sub”); (4) VEPF VII SPV I, L.P., a Delaware limited partnership and VEPF VII SPV I Holdings, L.P., a Delaware limited partnership (collectively, the “VEPF Funds”); (5) Vista Equity Partners Fund VII GP, L.P., a Cayman Islands exempted limited partnership; (6) VEPF VII GP, Ltd., a Cayman Islands exempted company; (7) Robert F. Smith; (8) KKR Knowledge Investors L.P., a Delaware limited partnership (“KKR Investor”); (9) Stephen Shanley; (10) Elephant Partners I, L.P., a Delaware limited partnership, Elephant Partners II, L.P. for itself and as nominee for Elephant Partners II-B, L.P., a Delaware limited partnership, and Elephant Partners 2019 SPV-A, L.P., a Delaware limited partnership (collectively, the “Elephant Funds”); (11) Jeremiah Daly; (12) Sjouwerman Enterprises Limited Partnership, a Florida limited partnership, and Sjoerd Sjouwerman (collectively, the “Founder,” and together with the VEPF Funds, the Elephant Funds and the KKR Investor, the “Rollover Stockholders”); and (13) Sjouwerman Management, LLC, a Florida limited liability company.

This Transaction Statement relates to the Agreement and Plan of Merger, dated October 11, 2022 (including all exhibits and documents attached thereto, and as it may be amended from time to time, the “Merger Agreement”), by and among KnowBe4, Parent and Merger Sub. The Merger Agreement provides that, subject to the terms and conditions set forth in the Merger Agreement, Merger Sub will merge with and into KnowBe4 (the “Merger”), with KnowBe4 surviving the Merger and becoming a wholly owned subsidiary of Parent.

At the effective time of the Merger, each share of KnowBe4 common stock issued and outstanding at the effective time of the Merger (other than (1) the shares contributed to Parent by the Rollover Stockholders pursuant to the Support Agreements (as defined below), and (2) the shares of KnowBe4 common stock (a) held by KnowBe4 as treasury stock; (b) held by Parent or Merger Sub; (c) held by any direct or indirect wholly owned subsidiary of Parent or Merger Sub; or (d) held by stockholders who have neither voted in favor of the Merger nor consented thereto in writing and who have properly demanded appraisal of such shares of KnowBe4 common stock pursuant to, and in accordance with, Section 262 of the General Corporation Law of the State of Delaware (the “DGCL”), if any ((a)-(d) collectively, the “Excluded Shares”)) will be canceled and extinguished and converted into the right to receive cash in an amount equal to $24.90, without interest and subject to any applicable withholding taxes. Upon completion of the Merger, KnowBe4 Class A common stock will no longer be publicly traded, and the Company’s stockholders (other than the Rollover Stockholders indirectly) will cease to have any ownership interest in the Company.

In connection with entering to the Merger Agreement, on October 11, 2022, (1) Parent and KnowBe4 entered into support agreements with (a) the Founder, (b) the KKR Investor and (c) the Elephant Funds; and (2) KnowBe4 entered into a support agreement with the VEPF Funds (collectively, the “Support Agreements”). Pursuant to the Support Agreements, the Rollover Stockholders agreed to vote all of their shares of KnowBe4 common stock in favor of the adoption of the Merger Agreement, subject to certain terms and conditions contained in the Support Agreements. In addition, the Rollover Stockholders agreed to “rollover” a portion of their existing equity in KnowBe4 into an ownership interest in the parent company of Parent or purchase equity in Parent. The Rollover Stockholders have also agreed that, prior to the Record Date (as defined in the Proxy Statement), each of the Rollover Stockholders will convert certain amounts of their shares of KnowBe4 Class B common stock into KnowBe4 Class A common stock.

On September 16, 2022, the Company received a non-binding proposal from Vista Equity Partners Management, LLC, a Delaware limited liability company (“Vista”) to acquire all of the Company’s outstanding shares not already owned by Vista. In response to an inquiry from Vista, the board of directors of the Company (the “Board”) formed a special committee of the Board comprised solely of independent and disinterested directors (“Special Committee”) to engage with Vista, to carefully review Vista’s proposal, to consider other potential value creation opportunities and to take other actions that the Special Committee deemed appropriate. The Special Committee, as more fully described in the preliminary Proxy Statement, evaluated the Merger, with the assistance of its own independent financial and legal advisors. After careful consideration, the Special Committee, pursuant to resolutions adopted at a meeting of the Special Committee held on October 11, 2022, unanimously (1) determined that the Merger Agreement, the Support Agreements, the limited guarantees, dated as of October 11, 2022, entered into by each of Vista Equity Partners Fund VII, L.P., a Delaware limited partnership, and Vista Equity Partners Fund VIII, L.P., a Delaware limited partnership,


in favor of the Company (the “Limited Guarantees”), and the other transactions contemplated by the Merger Agreement, including the Merger, are advisable, fair to, and in the best interests of KnowBe4 and the Unaffiliated Stockholders (as defined below); and (2) recommended that the Board approve the Merger Agreement, the Support Agreements, the Limited Guarantees and the transactions contemplated by the Merger Agreement, including the Merger, and determine that the Merger Agreement, the Support Agreements, the Limited Guarantees and the transactions contemplated by the Merger Agreement, including the Merger, are advisable, fair to, and in the best interests of KnowBe4 and the Unaffiliated Stockholders. “Unaffiliated Stockholders” means the holders of KnowBe4 common stock, excluding those shares of KnowBe4 common stock held, directly or indirectly, by or on behalf of (1) Vista, its investment fund affiliates and its portfolio companies majority owned by such investment fund affiliates; (2) KKR & Co. Inc., its investment fund affiliates, its portfolio companies majority owned by such investment fund affiliates and those members of the KnowBe4 Board who are employees of KKR & Co. Inc. or one of its investment fund affiliates; (3) the Elephant Funds, their investment fund affiliates, the portfolio companies majority owned by such investment fund affiliates and those members of the KnowBe4 Board who are employees of the Elephant Funds or one of its investment fund affiliates; and (4) any person that KnowBe4 has determined to be an “officer” of KnowBe4 within the meaning of Rule 16a-1(f) of the Exchange Act. The Special Committee also recommended that, subject to approval by the Board, the Board submit the Merger Agreement to the stockholders of KnowBe4 for their adoption and approval and recommend that the stockholders of KnowBe4 vote in favor of the adoption of the Merger Agreement and the approval of the Merger in accordance with the DGCL.

The Board, acting upon the recommendation of the Special Committee, unanimously (1) determined that the Merger Agreement, the Support Agreements, the Limited Guarantees and the transactions contemplated by the Merger Agreement, including the Merger, are advisable, fair to and in the best interests of KnowBe4 and its stockholders, including the Unaffiliated Stockholders; (2) approved and declared advisable the Merger Agreement, the Support Agreements, the Limited Guarantees and the transactions contemplated by the Merger Agreement, including the Merger; (3) directed that the adoption of the Merger Agreement be submitted to a vote of KnowBe4’s stockholders at a meeting of KnowBe4’s stockholders; and (4) recommended that KnowBe4’s stockholders vote in favor of the adoption of the Merger Agreement and the approval of the Merger in accordance with the DGCL.

The Merger cannot be completed without the affirmative vote of (1) the holders of a majority of the voting power of the outstanding shares of KnowBe4 common stock (voting together as a single class) entitled to vote on the Merger Agreement; (2) the holders of a majority of the voting power of the outstanding shares of KnowBe4 common stock (voting together as a single class) held by the Unaffiliated Stockholders and entitled to vote on the Merger Agreement; (3) the holders of at least a majority of the outstanding shares of KnowBe4 Class A common stock entitled to vote in accordance with the DGCL; and (4) the holders of at least a majority of the outstanding shares of KnowBe4 Class B common stock entitled to vote in accordance with the DGCL.

Concurrently with the filing of this Transaction Statement, the Company is filing a proxy statement (the “Proxy Statement”) under Regulation 14A of the Exchange Act with the SEC, pursuant to which the Company is soliciting proxies from the Company’s stockholders in connection with the Merger. The Proxy Statement is attached hereto as Exhibit (a)(1). A copy of the Merger Agreement is attached to the Proxy Statement as Annex A. As of the date hereof, the Proxy Statement is in preliminary form, and is subject to completion or amendment. Terms used but not defined in this Transaction Statement have the meanings assigned to them in the Proxy Statement.

Pursuant to General Instruction F to Schedule 13E-3, the information in the Proxy Statement, including all annexes thereto, is expressly incorporated by reference herein in its entirety, and responses to each item herein are qualified in their entirety by the information contained in the Proxy Statement. The cross-references below are being supplied pursuant to General Instruction G to Schedule 13E-3 and show the location in the Proxy Statement of the information required to be included in response to the items of Schedule 13E-3.

While each of the Filing Persons acknowledges that the Merger is a “going private” transaction for purposes of Rule 13e-3 under the Exchange Act, the filing of this Transaction Statement shall not be construed as an admission by any Filing Person, or by any affiliate of a Filing Person, that the Company is “controlled” by any of the Filing Persons and/or their respective affiliates.

The information concerning the Company contained in, or incorporated by reference into, this Schedule 13E-3 and the Proxy Statement was supplied by the Company. Similarly, all information concerning each other Filing Person contained in, or incorporated by reference into, this Schedule 13E-3 and the Proxy Statement was supplied by such Filing Person. No Filing Person, including the Company, is responsible for the accuracy of any information supplied by any other Filing Person.

Item 1. Summary Term Sheet

The information set forth in the Proxy Statement under the following captions is incorporated herein by reference:

“Summary Term Sheet”

“Questions and Answers”


Item 2. Subject Company Information

(a) Name and address. The information set forth in the Proxy Statement under the following caption is incorporated herein by reference:

“Summary Term Sheet—The Parties to the Merger”

“The Parties to the Merger—KnowBe4”

“Important Information Regarding KnowBe4”

“Questions and Answers”

(b) Securities. The information set forth in the Proxy Statement under the following captions is incorporated herein by reference:

“Summary Term Sheet”

“The Special Meeting—Record Date; Shares Entitled to Vote; Quorum”

“Questions and Answers”

“Important Information Regarding KnowBe4—Security Ownership of Certain Beneficial Owners and Management”

(c) Trading market and price. The information set forth in the Proxy Statement under the following caption is incorporated herein by reference:

“Important Information Regarding KnowBe4—Market Price of the KnowBe4 Class A Common Stock”

(d) Dividends. The information set forth in the Proxy Statement under the following caption is incorporated herein by reference:

“Important Information Regarding KnowBe4—Dividends”

(e) Prior public offerings. The information set forth in the Proxy Statement under the following caption is incorporated herein by reference:

“Important Information Regarding KnowBe4—Prior Public Offerings”

(f) Prior stock purchases. The information set forth in the Proxy Statement under the following caption is incorporated herein by reference:

“Important Information Regarding KnowBe4—Prior Public Offerings”

“Important Information Regarding KnowBe4—Transactions in KnowBe4 Common Stock”

Item 3. Identity and Background of Filing Person

(a) – (c) Name and Address of Each Filing Person; Business and Background of Entities; Business and Background of Natural Persons. The information set forth in the Proxy Statement under the following captions is incorporated herein by reference:

“Summary Term Sheet—The Parties to the Merger”

“The Parties to the Merger”

“Important Information Regarding KnowBe4”

“Important Information Regarding the Purchaser Filing Parties”

Item 4. Terms of the Transaction

(a)-(1) Material terms. Tender offers. Not applicable

(a)-(2) Mergers or Similar Transactions. The information set forth in the Proxy Statement under the following captions is incorporated herein by reference:

“Summary Term Sheet”

“Questions and Answers”

“Special Factors—Background of the Merger”

“Special Factors—Reasons for the Merger; Recommendation of the Special Committee and the KnowBe4 Board”


“Special Factors—Position of the Purchaser Filing Parties as to the Fairness of the Merger”

“Special Factors—Plans for KnowBe4 After the Merger”

“Special Factors—Certain Effects of the Merger”

“Special Factors—Certain Effects on KnowBe4 If the Merger Is Not Completed”

“Special Factors—Interests of KnowBe4’s Directors and Executive Officers in the Merger”

“Special Factors—Material U.S. Federal Income Tax Consequences of the Merger”

“Special Factors—Accounting Treatment”

“The Special Meeting—Votes Required”

“The Merger Agreement—Payment Agent, Exchange Fund and Exchange and Payment Procedures”

“The Merger Agreement—Treatment of Shares and Equity Awards”

“The Merger Agreement—Conditions to the Closing of the Merger”

Annex A—Agreement and Plan of Merger

(c) Different terms. The information set forth in the Proxy Statement under the following captions is incorporated herein by reference:

“Summary Term Sheet”

“Questions and Answers”

“Special Factors—Certain Effects of the Merger”

“Special Factors—Limited Guarantees”

“Special Factors—Financing of the Merger”

“Special Factors—Interests of KnowBe4’s Directors and Executive Officers in the Merger”

“The Merger Agreement—Treatment of Shares and Equity Awards”

“The Merger Agreement—Payment Agent, Exchange Fund and Exchange and Payment Procedures”

“The Merger Agreement—Employee Benefits”

“The Merger Agreement—Indemnification and Insurance”

“The Support Agreements”

“Proposal 2: The Compensation Proposal”

Annex A—Agreement and Plan of Merger

Annex C—Support Agreement (The Founder)

Annex D—Support Agreement (The KKR Investor)

Annex E—Support Agreement (The Elephant Funds)

Annex F—Support Agreement (The VEPF Funds)

(d) Appraisal rights. The information set forth in the Proxy Statement under the following captions is incorporated herein by reference:

“Summary Term Sheet—Appraisal Rights”

“Questions and Answers”

“The Special Meeting—Appraisal Rights”

“Special Factors—Certain Effects of the Merger”

“Appraisal Rights”

(e) Provisions for unaffiliated security holders. The information set forth in the Proxy Statement under the following caption is incorporated herein by reference:

“Special Factors—Reasons for the Merger; Recommendation of the Special Committee and the KnowBe4 Board”

“Provisions for Unaffiliated Stockholders”


(f) Eligibility for listing or trading. Not applicable.

Item 5. Past Contacts, Transactions, Negotiations and Agreements

(a)(1) – (2) Transactions. The information set forth in the Proxy Statement under the following captions is incorporated herein by reference:

“Summary Term Sheet”

“Special Factors—Background of the Merger”

“Special Factors—Certain Effects of the Merger”

“Special Factors—Interests of KnowBe4’s Directors and Executive Officers in the Merger”

“Special Factors—Financing of the Merger”

“Special Factors—Limited Guarantees”

“The Merger Agreement”

“The Support Agreements”

“Important Information Regarding KnowBe4—Prior Public Offerings”

“Important Information Regarding KnowBe4—Transactions in KnowBe4 Common Stock”

“Important Information Regarding KnowBe4—Past Contracts, Transactions, Negotiations and Agreements”

“Important Information Regarding the Purchaser Filing Parties”

“Proposal 2: The Compensation Proposal”

Annex A—Agreement and Plan of Merger

Annex C—Support Agreement (The Founder)

Annex D—Support Agreement (The KKR Investor)

Annex E—Support Agreement (The Elephant Funds)

Annex F—Support Agreement (The VEPF Funds)

(b) – (c) Significant corporate events; Negotiations or contacts. The information set forth in the Proxy Statement under the following captions is incorporated herein by reference:

“Summary Term Sheet”

“Special Factors—Background of the Merger”

“Special Factors—Reasons for the Merger; Recommendation of the Special Committee and the KnowBe4 Board”

“Special Factors—Position of the Purchaser Filing Parties as to the Fairness of the Merger”

“Special Factors—Interests of KnowBe4’s Directors and Executive Officers in the Merger”

“The Merger Agreement”

“The Support Agreements”

Annex A—Agreement and Plan of Merger

Annex C—Support Agreement (The Founder)

Annex D—Support Agreement (The KKR Investor)

Annex E—Support Agreement (The Elephant Funds)

Annex F—Support Agreement (The VEPF Funds)

(e) Agreements involving the subject company’s securities. The information set forth in the Proxy Statement under the following captions is incorporated herein by reference:

“Summary Term Sheet”

“Questions and Answers”


“Special Factors—Background of the Merger”

“Special Factors—Certain Effects of the Merger”

“Special Factors—Intent of KnowBe4’s Directors and Executive Officers to Vote in Favor of the Merger”

“Special Factors—Intent of Certain Stockholders to Vote in Favor of the Merger”

“Special Factors—Interests of KnowBe4’s Directors and Executive Officers in the Merger”

“Special Factors—Limited Guarantees”

“Special Factors—Financing of the Merger”

“The Merger Agreement”

“The Special Meeting—Votes Required”

“The Support Agreements”

“Proposal 2: The Compensation Proposal”

“Proposal 2: The Compensation Proposal”

Annex A—Agreement and Plan of Merger

Annex C—Support Agreement (The Founder)

Annex D—Support Agreement (The KKR Investor)

Annex E—Support Agreement (The Elephant Funds)

Annex F—Support Agreement (The VEPF Funds)

Item 6. Purposes of the Transaction, and Plans or Proposals

(b) Use of securities acquired. The information set forth in the Proxy Statement under the following captions is incorporated herein by reference:

“Summary Term Sheet”

“Special Factors—Plans for KnowBe4 After the Merger”

“Special Factors—Certain Effects of the Merger”

“Special Factors—Certain Effects on KnowBe4 if the Merger Is Not Completed”

“Special Factors—Interests of KnowBe4’s Directors and Executive Officers in the Merger”

“Special Factors—Delisting and Deregistration of KnowBe4’s Common Stock”

“Special Factors—Financing of the Merger”

“The Merger Agreement—Effects of the Merger; Certificate of Incorporation; Bylaws; Directors and Officers”

“The Merger Agreement—Treatment of Shares and Equity Awards”

“The Merger Agreement—Payment Agent, Exchange Fund and Exchange and Payment Procedures”

Annex A—Agreement and Plan of Merger

(c)(1) – (8) Plans. The information set forth in the Proxy Statement under the following captions is incorporated herein by reference:

“Summary Term Sheet”

“Questions and Answers”

“Special Factors—Background of the Merger”

“Special Factors—Reasons for the Merger; Recommendation of the Special Committee and the KnowBe4 Board”

“Special Factors—Opinion of Morgan Stanley & Co. LLC”

“Special Factors—Position of the Purchaser Filing Parties as to the Fairness of the Merger”

“Special Factors—Plans for KnowBe4 After the Merger”

“Special Factors—Certain Effects of the Merger”


“Special Factors—Certain Effects on KnowBe4 if the Merger Is Not Completed”

“Special Factors—Intent of KnowBe4’s Directors and Executive Officers to Vote in Favor of the Merger”

“Special Factors—Intent of Certain Stockholders to Vote in Favor of the Merger”

“Special Factors—Interests of KnowBe4’s Directors and Executive Officers in the Merger”

“Special Factors—Financing of the Merger”

“Special Factors—Limited Guarantees”

“The Merger Agreement—Effects of the Merger; Certificate of Incorporation; Bylaws; Directors and Officers”

“The Merger Agreement—Treatment of Shares and Equity Awards”

“The Support Agreements”

“Important Information Regarding KnowBe4”

Annex A—Agreement and Plan of Merger

Annex B—Opinion of Morgan Stanley & Co. LLC

Item 7. Purposes, Alternatives, Reasons and Effects

(a) Purposes. The information set forth in the Proxy Statement under the following captions is incorporated herein by reference:

“Summary Term Sheet”

“Questions and Answers”

“Special Factors—Background of the Merger”

“Special Factors—Reasons for the Merger; Recommendation of the Special Committee and the KnowBe4 Board”

“Special Factors—Opinion of Morgan Stanley & Co. LLC”

“Special Factors—Position of the Purchaser Filing Parties as to the Fairness of the Merger”

“Special Factors—Plans for KnowBe4 After the Merger”

“Special Factors—Certain Effects of the Merger”

Annex B—Opinion of Morgan Stanley & Co. LLC

(b) Alternatives. The information set forth in the Proxy Statement under the following captions is incorporated herein by reference:

“Summary Term Sheet”

“Special Factors—Background of the Merger”

“Special Factors—Reasons for the Merger; Recommendation of the Special Committee and the KnowBe4 Board”

“Special Factors—Position of the Purchaser Filing Parties as to the Fairness of the Merger”

“Special Factors—Plans for KnowBe4 After the Merger”

“Special Factors—Certain Effects on KnowBe4 if the Merger is Not Completed”

(c) Reasons. The information set forth in the Proxy Statement under the following captions is incorporated herein by reference:

“Summary Term Sheet”

“Special Factors—Background of the Merger”

“Special Factors—Reasons for the Merger; Recommendation of the Special Committee and the KnowBe4 Board”

“Special Factors—Opinion of Morgan Stanley & Co. LLC”

“Special Factors—Position of the Purchaser Filing Parties as to the Fairness of the Merger”

“Special Factors—Plans for KnowBe4 After the Merger”

“Special Factors—Certain Effects of the Merger”

“Special Factors—Certain Effects on KnowBe4 If the Merger Is Not Completed”


“Special Factors—Unaudited Prospective Financial Information”

Annex B—Opinion of Morgan Stanley & Co. LLC

(d) Effects. The information set forth in the Proxy Statement under the following captions is incorporated herein by reference:

“Summary Term Sheet”

“Questions and Answers”

“Special Factors—Background of the Merger”

“Special Factors—Reasons for the Merger; Recommendation of the Special Committee and the KnowBe4 Board”

“Special Factors—Opinion of Morgan Stanley & Co. LLC”

“Special Factors—Position of the Purchaser Filing Parties as to the Fairness of the Merger”

“Special Factors—Plans for KnowBe4 After the Merger”

“Special Factors—Certain Effects of the Merger”

“Special Factors—Certain Effects on KnowBe4 if the Merger Is Not Completed”

“Special Factors—Interests of KnowBe4’s Directors and Executive Officers in the Merger”

“Special Factors—Material U.S. Federal Income Tax Consequences of the Merger”

“Special Factors—Financing of the Merger”

“Special Factors—Fees and Expenses”

“Special Factors—Delisting and Deregistration of KnowBe4’s Common Stock”

“The Merger Agreement—Effects of the Merger; Certificate of Incorporation; Bylaws; Directors and Officers”

“The Merger Agreement—Treatment of Shares and Equity Awards”

“The Merger Agreement—Indemnification and Insurance”

“The Merger Agreement—Employee Benefits”

“Appraisal Rights”

“Proposal 2: The Compensation Proposal”

Annex A—Agreement and Plan of Merger

Annex B—Opinion of Morgan Stanley & Co. LLC

Item 8. Fairness of the Transaction

(a) – (b) Fairness; Factors considered in determining fairness. The information set forth in the Proxy Statement under the following captions is incorporated herein by reference:

“Summary Term Sheet”

“Questions and Answers”

“Special Factors—Background of the Merger”

“Special Factors—Reasons for the Merger; Recommendation of the Special Committee and the KnowBe4 Board”

“Special Factors—Opinion of Morgan Stanley & Co. LLC”

“Special Factors—Position of the Purchaser Filing Parties as to the Fairness of the Merger”

“Special Factors—Certain Effects of the Merger”

“Special Factors—Interests of KnowBe4’s Directors and Executive Officers in the Merger”

Annex B—Opinion of Morgan Stanley & Co. LLC

(c) Approval of security holders. The information set forth in the Proxy Statement under the following captions is incorporated herein by reference:

“Summary Term Sheet”


“Questions and Answers”

“Special Factors—Reasons for the Merger; Recommendations of the Special Committee and the KnowBe4 Board”

“Special Factors—Position of the Purchaser Filing Parties as to the Fairness of the Merger”

“The Special Meeting—Record Date; Shares Entitled to Vote; Quorum”

“The Special Meeting—Votes Required”

“The Special Meeting—Voting of Proxies”

“The Special Meeting—Revocability of Proxies”

“The Merger Agreement—Conditions to the Closing of the Merger”

“Proposal 1: The Merger Proposal”

Annex A—Agreement and Plan of Merger

(d) Unaffiliated representative. The information set forth in the Proxy Statement under the following captions is incorporated herein by reference:

“Summary Term Sheet”

“Special Factors—Background of the Merger”

“Special Factors—Reasons for the Merger; Recommendation of the Special Committee and the KnowBe4 Board”

“Special Factors—Position of the Purchaser Filing Parties as to the Fairness of the Merger”

(e) Approval of directors. The information set forth in the Proxy Statement under the following captions is incorporated herein by reference:

“Summary Term Sheet”

“Questions and Answers”

“Special Factors—Background of the Merger”

“Special Factors—Reasons for the Merger; Recommendation of the Special Committee and the KnowBe4 Board”

“Special Factors—Position of the Purchaser Filing Parties as to the Fairness of the Merger”

“Special Factors—Interests of KnowBe4’s ’s Directors and Executive Officers to Vote in Favor of the Merger”

“Special Factors—Intent of KnowBe4’s Directors and Executive Officers in the Merger”

(f) Other offers. Not applicable.

Item 9. Reports, Opinions, Appraisals and Negotiations

(a) – (b) Report, opinion or appraisal; Preparer and summary of the report, opinion or appraisal. The information set forth in the Proxy Statement under the following captions is incorporated herein by reference:

“Summary Term Sheet”

“Questions and Answers”

“Special Factors—Background of the Merger”

“Special Factors—Reasons for the Merger; Recommendation of the Special Committee and the KnowBe4 Board”

“Special Factors—Opinion of Morgan Stanley & Co. LLC”

“Special Factors—Position of the Purchaser Filing Parties as to the Fairness of the Merger”

“Where You Can Find Additional Information”

Annex B—Opinion of Morgan Stanley & Co. LLC

Fairness Opinion Presentation Materials of Morgan Stanley & Co. LLC to the Special Committee, dated October 10, 2022, and preliminary discussion materials dated July 28, 2022, August 19, 2022, September 15, 2022, September 15, 2022 and September 29, 2022, which are filed as Exhibit (c)(ii)-(vii), respectively, and are incorporated herein by reference.


(c) Availability of documents. The reports, opinions or appraisals referenced in this Item 9 will be made available for inspection and copying at the principal executive offices of the Company during its regular business hours by any interested equity holder of the Common Stock or by a representative who has been so designated in writing.

Item 10. Source and Amounts of Funds or Other Consideration

(a) – (b), (d) Source of funds; Conditions; Borrowed funds. The information set forth in the Proxy Statement under the following captions is incorporated herein by reference:

“Summary Term Sheet”

“Special Factors—Financing of the Merger”

“Special Factors—Limited Guarantees”

“The Merger Agreement—Efforts to Close the Merger”

“The Merger Agreement—Conditions to the Closing of the Merger”

“The Merger Agreement—Conduct of Business Pending the Merger”

Annex A—Agreement and Plan of Merger

(c) Expenses. The information set forth in the Proxy Statement under the following captions is incorporated herein by reference:

“Summary Term Sheet”

“Questions and Answers”

“Special Factors—Certain Effects on KnowBe4 if the Merger Is Not Completed”

“Special Factors—Fees and Expenses”

“The Special Meeting—Solicitation of Proxies”

“The Merger Agreement—Fees and Expenses”

“The Merger Agreement—Termination Fees and Remedies”

Annex A—Agreement and Plan of Merger

Item 11. Interest in Securities of the Subject Company

(a) Securities ownership. The information set forth in the Proxy Statement under the following captions is incorporated herein by reference:

“Summary Term Sheet”

“Special Factors—Interests of KnowBe4’s Directors and Executive Officers in the Merger”

“Important Information Regarding KnowBe4—Security Ownership of Certain Beneficial Owners and Management”

“Important Information Regarding the Purchaser Filing Parties”

“The Support Agreements”

Annex C—Support Agreement (The Founder)

Annex D—Support Agreement (The KKR Investor)

Annex E—Support Agreement (The Elephant Funds)

Annex F—Support Agreement (The VEPF Funds)

(b) Securities transactions. The information set forth in the Proxy Statement under the following captions is incorporated herein by reference:

“Special Factors—Background of the Merger”

“Important Information Regarding KnowBe4—Transactions in KnowBe4 Common Stock”

“Important Information Regarding KnowBe4—Prior Public Offerings”


“The Merger Agreement”

“Support Agreements”

Annex A—Agreement and Plan of Merger

Annex C—Support Agreement (The Founder)

Annex D—Support Agreement (The KKR Investor)

Annex E—Support Agreement (The Elephant Funds)

Annex F—Support Agreement (The VEPF Funds)

Item 12. The Solicitation or Recommendation

(d) Intent to tender or vote in a going-private transaction. The information set forth in the Proxy Statement under the following captions is incorporated herein by reference:

“Summary Term Sheet”

“Questions and Answers”

“Special Factors—Background of the Merger”

“Special Factors—Reasons for the Merger; Recommendation of the Special Committee and the KnowBe4 Board”

“Special Factors—Position of the Purchaser Filing Parties as to the Fairness of the Merger”

“Special Factors—Intent of KnowBe4’s Directors and Executive Officers to Vote in Favor of the Merger”

“Special Factors—Intent of Certain Stockholders to Vote in Favor of the Merger”

“The Special Meeting—Votes Required”

“The Support Agreements”

Annex C—Support Agreement (The Founder)

Annex D—Support Agreement (The KKR Investor)

Annex E—Support Agreement (The Elephant Funds)

Annex F—Support Agreement (The VEPF Funds)

(e) Recommendation of others. The information set forth in the Proxy Statement under the following captions is incorporated herein by reference:

“Summary Term Sheet”

“Questions and Answers”

“Special Factors—Background of the Merger”

“Special Factors—Reasons for the Merger; Recommendation of the Special Committee and the KnowBe4 Board”

“Special Factors—Position of the Purchaser Filing Parties as to the Fairness of the Merger”

“Proposal 1: The Merger Proposal”

Item 13. Financial Information

(a) Financial statements. The audited consolidated financial statements set forth in Item 8 of the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2021, the financial statements set forth in Item 1 of the Company’s Quarterly Report on Form 10-Q for the quarterly period ended March 31, 2022, and the financial statements set forth in Item 1 of the Company’s Quarterly Report on Form 10-Q for the quarterly period ended June 30, 2022 are incorporated herein by reference.

The information set forth in the Proxy Statement under the following captions is incorporated herein by reference:

“Special Factors—Certain Effects of the Merger”

“Special Factors—Unaudited Prospective Financial Information”


“Important Information Regarding KnowBe4—Book Value Per Share”

“Where You Can Find Additional Information”

(b) Pro forma information. Not applicable.

Item 14. Persons/Assets, Retained, Employed, Compensated or Used

(a) – (b) Solicitations or recommendations; Employees and corporate assets. The information set forth in the Proxy Statement under the following captions is incorporated herein by reference:

“Summary Term Sheet”

“Questions and Answers”

“Special Factors—Background of the Merger”

“Special Factors—Reasons for the Merger; Recommendation of the Special Committee and the KnowBe4 Board”

“Special Factors—Position of the Purchaser Filing Parties as to the Fairness of the Merger”

“Special Factors—Interests of KnowBe4’s Directors and Executive Officers in the Merger”

“Special Factors—Fees and Expenses”

“The Special Meeting—Solicitation of Proxies”

Item 15. Additional Information

(b) Golden Parachute Compensation. The information set forth in the Proxy Statement under the following captions is incorporated herein by reference:

“Summary Term Sheet”

“Special Factors—Interests of KnowBe4’s Directors and Executive Officers in the Merger”

“The Merger Agreement—Treatment of Shares and Equity Awards”

“Proposal 2: The Compensation Proposal”

Annex A—Agreement and Plan of Merger

(c) Other material information. The information set forth in the Proxy Statement, including all annexes thereto, is incorporated herein by reference.

Item 16. Exhibits

The following exhibits are filed herewith:

(a)(2)(i) Preliminary Proxy Statement of KnowBe4, Inc. (the “Proxy Statement”) (included in the Schedule 14A filed on November 9, 2022 and incorporated herein by reference).

(a)(2)(ii) Form of Proxy Card (included in the Proxy Statement and incorporated herein by reference).

(a)(2)(iii) Letter to Stockholders (included in the Proxy Statement and incorporated herein by reference).

(a)(2)(iv) Notice of Special Meeting of Stockholders (included in the Proxy Statement and incorporated herein by reference).

(a)(2)(v) Equity FAQs, dated October 20, 2022 (included in Schedule 14A filed on October 20, 2022 and incorporated herein by reference).

(a)(2)(vi) Email to Customers and Partners, dated October 12, 2022 (included in Schedule 14A filed on October 12, 2022 and incorporated herein by reference).

(a)(2)(vii) Email to Employees, dated October 12, 2022 (included in Schedule 14A filed on October 12, 2022 and incorporated herein by reference).

(a)(2)(viii) Employee FAQs, dated October 12, 2022 (included in Schedule 14A filed on October 12, 2022 and incorporated herein by reference).


(a)(2)(ix) Email to Investors and Analysts, dated October 12, 2022 (included in Schedule 14A filed on October 12, 2022 and incorporated herein by reference).

(a)(2)(x) Transcript of Employee Town Hall, dated October 12, 2022 (included in Schedule 14A filed on October 12, 2022 and incorporated herein by reference).

(a)(2)(xi) Current Report on Form 8-K, dated October 13, 2022 (included in Schedule 14A filed on October 13, 2022 and incorporated herein by reference).

(a)(2)(xii) Current Report on Form 8-K, dated October 12, 2022 (included in Schedule 14A filed on October 12, 2022 and incorporated herein by reference).

(a)(5)(i) Press Release, dated October  11, 2022 (included in Schedule 14A filed on October 12, 2022 and incorporated herein by reference).

(c)(i) Opinion of Morgan Stanley & Co. LLC, dated October 11, 2022 (included as Annex B to the Proxy Statement and incorporated herein by reference).

(c)(ii) Fairness Opinion Presentation Materials of Morgan Stanley  & Co. LLC to the Special Committee, dated October  10, 2022.*

(c)(iii) Preliminary Discussion Materials of Morgan Stanley  & Co. LLC for the Special Committee, dated July  28, 2022.*

(c)(iv) Preliminary Discussion Materials of Morgan Stanley  & Co. LLC for the Special Committee, dated August  19, 2022.*

(c)(v) Preliminary Discussion Materials of Morgan Stanley  & Co. LLC for the Special Committee, dated September  15, 2022.*

(c)(vi) Preliminary Discussion Materials of Morgan Stanley  & Co. LLC for the Special Committee, dated September  15, 2022.*

(c)(vii) Preliminary Discussion Materials of Morgan Stanley  & Co. LLC for the Special Committee, dated September  29, 2022.*

(d)(i) Agreement and Plan of Merger, dated as of October 11, 2022, by and among the Company, Parent, and Merger Sub (included as Annex A to the Proxy Statement and incorporated herein by reference).

(d)(ii) Support Agreement, dated as of October 11, 2022, by and among the Parent, the Company, Stu Sjouwerman and Sjouwerman Enterprises Limited Partnership (included as Annex C to the Proxy Statement and incorporated herein by reference).

(d)(iii) Support Agreement, dated as of October 11, 2022, by and among the Parent, the Company, and KKR Knowledge Investors L.P. (included as Annex D to the Proxy Statement and incorporated herein by reference).

(d)(iv) Support Agreement, dated as of October 11, 2022, by and among the Parent, the Company, Elephant Partners I, LP, Elephant Partners II, LP for Elephant Partners II-B, LP, and Elephant Partners 2019 SPV-A, LP (included as Annex E to the Proxy Statement and incorporated herein by reference).

(d)(v) Support Agreement, dated as of October 11, 2022, by and among the Parent, the Company, VEPF VII SPV I, L.P., and VEPF VII SPV I Holdings, L.P. (included as Annex F to the Proxy Statement and incorporated herein by reference).

(d)(vi) Amended and Restated Commitment Letter, executed by the Commitment Parties thereto and accepted and agreed to by Oranje Holdco, LLC, dated October  14, 2022.

(d)(vii) Equity Commitment Letter, executed by Vista Equity Partners Fund VII, L.P. and accepted and agreed to by Oranje Holdco, LLC, dated October  11, 2022.

(d)(viii) Equity Commitment Letter, executed by Vista Equity Partners Fund VIII, L.P. and accepted and agreed to by Oranje Holdco, LLC, dated October  11, 2022.

(d)(ix) Equity Commitment Letter, executed by KKR Knowledge Investors L.P. and accepted and agreed to by Oranje Holdco, LLC, dated October  11, 2022.

(d)(x) Limited Guarantee, dated October  11, 2022, between Vista Equity Partners Fund VII, L.P. and KnowBe4, Inc.

(d)(xi) Limited Guarantee, dated October  11, 2022, between Vista Equity Partners Fund VIII, L.P. and KnowBe4, Inc.

(f) Section  262 of the Delaware General Corporation Law.

(g) None.

107 Filing Fee Table.

 

*

Certain portions of this exhibit have been redacted and separately filed with the Securities and Exchange Commission pursuant to a request for confidential treatment.


SIGNATURES

After due inquiry and to the best of the undersigned’s knowledge and belief, the undersigned certifies that the information set forth in this statement is true, complete and correct.

 

KNOWBE4, INC.

By:  

/s/ Sjoerd Sjouwerman

Name:   Sjoerd Sjouwerman
Title:   Chief Executive Officer

 

[Signature Page to SC 13e-3]


After due inquiry and to the best of the undersigned’s knowledge and belief, the undersigned certifies that the information set forth in this statement is true, complete and correct.

 

ORANJE HOLDCO, LLC
By:   /s/ Nicholas Prickel
Name:   Nicholas Prickel
Title:   Vice President
ORANJE MERGER SUB, INC.

By:

 

/s/ Nicholas Prickel

Name:

 

Nicholas Prickel

Title:

 

Vice President

 

[Signature Page to SC 13e-3]


After due inquiry and to the best of the undersigned’s knowledge and belief, the undersigned certifies that the information set forth in this statement is true, complete and correct.

 

SJOUWERMAN ENTERPRISES LIMITED PARTNERSHIP

By:

 

Sjouwerman Management, LLC

Its:

 

General Manager

By:

 

/s/ Sjoerd Sjouwerman

Name:

 

Sjoerd Sjouwerman

Title:

 

Manager

By:

 

/s/ Rebecca Weiss Sjouwerman

Name:

 

Rebecca Weiss Sjouwerman

Title:

 

Manager

SJOUWERMAN MANAGEMENT, LLC

By:

 

/s/ Sjoerd Sjouwerman

Name:

 

Sjoerd Sjouwerman

Title:

 

Manager

By:

 

/s/ Rebecca Weiss Sjouwerman

Name:

 

Rebecca Weiss Sjouwerman

Title:

 

Manager

SJOERD SJOUWERMAN

By:

 

/s/ Sjoerd Sjouwerman

Name:

 

Sjoerd Sjouwerman

 

[Signature Page to SC 13e-3]


After due inquiry and to the best of the undersigned’s knowledge and belief, the undersigned certifies that the information set forth in this statement is true, complete and correct.

 

VEPF VII SPV I, L.P.

By:

 

Vista Equity Partners Fund VII GP, L.P.

Its:

 

General Partner

By:

 

VEPF VII GP, Ltd.

Its:

 

General Partner

By:

 

/s/ Robert F. Smith

Name:

 

Robert F. Smith

Title:

 

Director

VEPF VII SPV I HOLDINGS, L.P.

By:

 

Vista Equity Partners Fund VII GP, L.P.

Its:

 

General Partner

By:

 

VEPF VII GP, Ltd.

Its:

 

General Partner

By:

 

/s/ Robert F. Smith

Name:

 

Robert F. Smith

Title:

 

Director

VISTA EQUITY PARTNERS FUND VII GP, L.P.

By:

 

VEPF VII GP, Ltd.

Its:

 

General Partner

By:

 

/s/ Robert F. Smith

Name:

 

Robert F. Smith

Title:

 

Director

 

[Signature Page to SC 13e-3]


VEPF VII GP, LTD.
By:  

/s/ Robert F. Smith

Name:   Robert F. Smith
Title:   Director
ROBERT F. SMITH

/s/ Robert F. Smith

 

 

[Signature Page to SC 13e-3]


After due inquiry and to the best of the undersigned’s knowledge and belief, the undersigned certifies that the information set forth in this statement is true, complete and correct.

 

ELEPHANT PARTNERS I, L.P.
By:   Elephant Partners GP I, LLC
Its:   General Partner
By:  

/s/ Patrick Cammarata, attorney-in-fact

Name:   Jeremiah Daly
Title:   Managing Member
ELEPHANT PARTNERS II, L.P.
By:   Elephant Partners GP II, LLC
Its:   General Partner
By:  

/s/ Patrick Cammarata, attorney-in-fact

Name:   Jeremiah Daly
Title:   Managing Member
ELEPHANT PARTNERS 2019 SPV-A, L.P.
By:   Elephant Partners GP I, LLC
Its:   General Partner
By:  

/s/ Patrick Cammarata, attorney-in-fact

Name:   Jeremiah Daly
Title:   Managing Member

 

[Signature Page to SC 13e-3]


ELEPHANT PARTNERS II-B, L.P.
By:   Elephant Partners GP II, LLC
Its:   General Partner
By:  

/s/ Patrick Cammarata, attorney-in-fact

Name:   Jeremiah Daly
Title:   Managing Member
JEREMIAH DALY
By:  

/s/ Patrick Cammarata, attorney-in-fact

Name:   Jeremiah Daly

 

[Signature Page to SC 13e-3]


After due inquiry and to the best of the undersigned’s knowledge and belief, the undersigned certifies that the information set forth in this statement is true, complete and correct.

 

KKR KNOWLEDGE INVESTORS L.P.

By: KKR Knowledge Investors GP LLC, its general partner

By:   /s/ Stephen Shanley
Name:  

Stephen Shanley

Title:  

Vice President

STEPHEN SHANLEY

By:   /s/ Stephen Shanley
Name:  

Stephen Shanley

 

[Signature Page to SC 13e-3]

Exhibit (c)(ii)

Exhibit (c)(ii) Confidential Treatment Requested. Certain portions of this exhibit have been redacted and separately filed with the Securities and Exchange Commission pursuant to a request for confidential treatment. Valuation Materials Underlying Fairness Opinion Project Orange October 10, 2022 PRELIMINARY AND CONFIDENTIAL DRAFT


Executive Summary • The Special Committee and, at the Special Committee’s direction, the Company and the Special Committee’s advisors have engaged with “Violet” in response to Violet’s inbound interest and proposal –Following inbound interest from Violet, the Board formed the Special Committee and engaged Morgan Stanley and Potter, Anderson & Corroon LLP as advisors to assist with its evaluation of a potential transaction with Violet and other potential bidders • After negotiations, both sides have indicated interest in moving forward with a transaction at $24.90 per share –10.3x AV / CY2023E Revenue Multiple –44% premium to unaffected share price of $17.30 as of 9/16/2022 • Outreach to 4 strategic parties and 12 financial sponsors pre-13D filing by Violet yielded no other bids –Post-13D filing by Violet, Morgan Stanley conducted additional outreach to certain parties from the total pool listed above. There were no expressions of interest from potential buyers that were contacted or any other potential bidders • The Board resolutions forming the Special Committee provided the Special Committee with broad powers to evaluate a transaction with Violet, as well as a transaction with other potentially interested buyers. The Board resolutions also provided the Special Committee with the “power to say no” and maintain the status quo • The Board resolutions forming the Special Committee indicated that the Company would not effectuate a “Specified Strategic Transaction” if it had not first been –Approved or recommended by the Special Committee, and –Approved by holders of a majority of the voting power of the outstanding shares of the Company held by disinterested stockholders as determined by the Special Committee PROJECT ORANGE PRELIMINARY AND CONFIDENTIAL DRAFT 2


(1-4) Overview of Violet Proposal Transaction Summary Summary of Proposal $MM, except per share prices and where noted Key Terms Description Unaffected Date Price • $24.90 per share (9/16/2022) Current Proposal Share Price ($) $17.30 $24.90 Form of Consideration • All cash Announcement Timing • [10/10/2022, post-market close] (x) Fully Diluted Shares (MM) 185.0 185.4 • Rollover investment by Elephant and Founder Fully Diluted Equity Value $3,200 $4,616 • KKR in approval process of new investment, with Rollover existing equity as backstop should new investment not (+) Debt 0 0 be approved (-) Cash (344) (344) • Vested RSUs, PSUs and in-the-money vested options are cashed out Fully Diluted Aggregate Value $2,856 $4,272 • Out-of-the-money options are cancelled Treatment of Equity • Unvested RSUs, PSUs and in-the-money unvested Awards at Closing options will be converted into a cash award and paid out in cash at the transaction price post-closing according to existing vesting schedules • Stockholder approval (majority of minority - rollover CY2023E Revenue Multiple Metric shareholders will not be permitted to vote) • Regulatory / Antitrust approvals Street 416 6.9x 10.3x • No legal injunctions or restraints Management Plan 440 6.5x 9.7x Conditions to Close • Accuracy of reps and warranties subject to customary materiality standards • Material performance of covenants and obligations CY2023E P/LFCF Multiple Metric • Absence of a Material Adverse Effect, subject to customary exceptions Street 104 30.7x 44.2x Management Plan 107 29.8x 43.0x • Under specified circumstances, Company may Superior Proposal terminate agreement in order to accept a “Superior Termination Right Proposal” Implied Price Premia • Company termination fee equal to 3.0% of equity value Unaffected Spot (9/16/2022) ($17.30) 0% 44% payable in specified circumstances including acceptance of Superior Proposal Unaffected 30-Day Average ($19.10) (9%) 30% Termination Fees • Parent termination fee equal to 6.0% of equity value payable in the event Parent materially breaches the agreement or fails to close the transaction after satisfaction of all closing conditions Notes 3. Management Plan provided by management on 8/12/2022 1. Provided herein are brief summaries of complex provisions. Company and Special Committee counsel provide a full review of 4. Aggregate value and equity value calculations based on standalone Orange valuation and do not reflect any capitalization Merger Agreement and related documents. This is a summary of only certain selected proposed transaction terms, as set forth effects resulting from change of control. For detailed Orange capitalization, please refer to pg. 21 in the draft Merger Agreement dated October 10, 2022 and is not a complete description of proposed transaction terms. Terms may change given ongoing negotiations 2. Market data as of 10/7/2022 PROJECT ORANGE PRELIMINARY AND CONFIDENTIAL DRAFT 3


(1) Summary of Certain Transaction Terms Per Draft Merger Agreement Dated October 10, 2022 Structure • One-step reverse triangular merger, with the Company becoming a wholly-owned subsidiary of Violet’s purchasing entity Support • Violet, Elephant, KKR and Stu Sjouwerman to enter into support agreements Agreement / • Elephant and Stu Sjouwerman to contribute a portion of the shares of Company common stock held by them to the purchasing entity • KKR in approval process of new investment, with existing equity as backstop should new investment not be approved Rollover • RSUs: (i) vested RSUs are cashed-out; (ii) unvested RSUs are converted into a cash award and cashed-out at the per share price following the closing subject to existing vesting provisions Treatment of • PSUs: (i) vested PSUs are cashed-out; (ii) unvested PSUs are converted into a cash award and cashed-out at the per share price following the closing subject Equity to existing time-based vesting provisions with performance-based vesting conditions deemed achieved at 100% of target Awards • Options: (i) vested, outstanding, and unexercised options that are in-the-money are cashed-out (less the exercise price); (ii) out-of-the-money options are cancelled; (iii) unvested options are assumed by the purchasing entity and cashed-out at the per share price (less exercise price) following the closing subject to existing vesting provisions No-Shop / • Customary “fiduciary out” permitting the Company to: Fiduciary Out • Terminate the merger agreement to accept a Superior Proposal, subject to the terms and conditions in the Merger Agreement, including payment of the Provisions Company termination fee • Make a Recommendation Change regarding an intervening, subject to the terms and conditions in the Merger Agreement Regulatory • HSR approval required and other agreed-upon government entity regulatory approvals Key • Stockholder approval (majority of minority) Conditions to • Regulatory / Antitrust approvals Close • No legal injunctions or restraints • Accuracy of reps and warranties subject to customary materiality standards • Material performance of covenants and obligations • Absence of a Material Adverse Effect, subject to customary exceptions • Mutual: (i) mutual written agreement; (ii) permanent injunction or other judgment of restraint; (iii) after the Termination Date; (iv) failure to obtain stockholder Termination approval Events • By Parent: (i) uncured breach by Company of reps and warranties or covenants that would cause closing condition failure; (ii) Company Recommendation Change • By Company: (i) uncured breach by Parent of reps and warranties or covenants that would cause closing condition failure; (ii) to enter into agreement to effect Superior Proposal after paying the Termination Fee; (iii) failure of Parent to close the deal after closing conditions have been met • Company termination fee equal to 3.0% of equity value payable in specified circumstances including acceptance of Superior Proposal Termination • Parent termination fee equal to 6.0% of equity value payable if Parent fails to close transaction after satisfaction of all closing conditions (including as a result of (2) the failure of Parent’s debt financing) Fees Notes 1. Provided herein are brief summaries of complex provisions. Company counsel to provide a full review of Merger Agreement and related documents. This is a summary of only certain selected proposed transaction terms, as set forth in the Draft Merger Agreement dated October 10, 2022 and is not intended to be a complete description of proposed transaction terms. Terms likely to change due to ongoing negotiations. 2. For the purposes of calculating termination fees, equity value is calculated by multiplying the offer price by the fully diluted shares outstanding (with application of the treasury stock method for dilutive securities) PROJECT ORANGE PRELIMINARY AND CONFIDENTIAL DRAFT 4


Strategic Rationale • 44% premium to unaffected price ($17.30) as of 9/16/2022 (1) ‒ Above 30% median premium • Fulsome process suggests there’s not a higher bid available • High degree of closing certainty • Ability to accept a Superior Proposal under certain circumstances • Adverse impact on Orange’s business operations, competitive positioning and share price if merger not completed in a timely manner • Termination fee requirement in case of merger not reaching completion • Tax liability created by all-cash transaction for US-based Orange shareholders • Disruption to business schedule of senior executives due to merger activities and its potential to adversely impact firm performance • Share price and resulting value impact in case of merger not reaching completion Notes 1. Based on $1Bn+ Aggregate Value software transaction since 2014 PROJECT ORANGE PRELIMINARY AND CONFIDENTIAL DRAFT 5 Risks of Merger Reasons for Merger



Shareholder Voting Analysis (Majority of the Disinterested Parties) • Assumes current Class A and Class B Top 10 Aggregate Voting Power Shareholders (Non-Board Members / Insiders) shareholders hold their shares through Class B Total (A+B) Class A (1) to the shareholder vote Class A Shares Class B Shares Aggregate Voting Aggregate Voting Economic Economic Shareholder Voting Power Held Held Power Power % Ownership Ownership % Kevin Mitnick 2.5 4.9 49.0 51.5 31% 7.4 4% Legacy Marlin Holdings - 1.2 12.5 12.5 7% 1.2 1% • Assumes rollover / new investment RadWit Inc - 1.2 11.9 11.9 7% 1.2 1% Sanabil Private Equity Investments Company - 0.8 8.3 8.3 5% 0.8 0% current shareholders are prohibited Voya Financial, Inc. 5.7 - - 5.7 3% 5.7 3% from voting (i.e. Vista, KKR, Elephant, Invesco Ltd. 4.9 - - 4.9 3% 4.9 3% FMR LLC 4.9 - - 4.9 3% 4.9 3% Stu Sjouwerman) BlackRock Institutional Trust Company NA 4.7 - - 4.7 3% 4.7 3% Eventide Asset Management, LLC 4.2 - - 4.2 3% 4.2 2% The Vanguard Group 3.4 - - 3.4 2% 3.4 2% Other Common Shareholders Excl. Affiliated 53.4 0.2 1.7 55.0 33% 147.0 79% • Assumes no RSU or Option holders Totals 83.6 8.3 83.3 166.9 100% 185.4 100% exercise and convert into Class A or B Board Member / Insider Assumed Voting Power shares and vote Class A Class B Total (A+B) Potential Potential (2) (1) Class A Shares Outstanding Vested Options Economic Economic Shareholder Aggregate Voting Aggregate Voting Convertible Into Shares of Class B Held and RSU Ownership Ownership % Power Power % Krish Venkataraman 0.2 - 0.2 0% 0.2 0% Lars Letonoff 0.8 - 0.8 1% 0.8 0% Kevin Klausmeyer - - 0.0 0% 0.0 0% Gerhard Watzinger - 0.7 7.0 4% 0.7 0% Kara Wilson - 0.7 7.0 4% 0.7 0% 1.4 Total Additional Votes 0.8 15.0 9% 2.4 1% Current Shareholders Assumed Conflicted For the Vote Class A Class B Total (A+B) (1) Class A Shares Class B Shares Aggregate Voting Aggregate Voting Economic Economic Shareholder Voting Power Held Held Power Power % Ownership Ownership % Emerald - 37.1 37.1 20% Khaki - 26.1 26.1 14% Violet 1.9 14.6 16.4 9% Stu Sjouwerman 0.1 4.4 4.5 2% Totals 2.0 82.1 84.1 45% Notes 1. Economic ownership calculated off of fully diluted share count of 185.4M inclusive of affiliated shares 2. Assumes Total Potential Diluted Aggregate Voting Power of 166 9MM votes 7


Progress Summary Contacted / NDA & Initial *** Discussed Management Started Presentation Additional 4 Diligence Sent IOI 0 Sent Final Bid 0 0 0 Sponsor Owned 13 3 1 1 16 Passed / Not Engaged Notes: 1. Thoma Bravo signed NDA but has not held an Initial Management Presentation PROJECT ORANGE PRELIMINARY AND CONFIDENTIAL DRAFT 8 Sponsors Strategics


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Q32022 Financial Update Street Management Preliminary Flash Estimates Model Estimates Actual Bookings $111 $105-$108 $107 New Business $45 $40-$42 $40 Renewal Add-On / Upgrade $66 $65-$66 $67 Revenue $86 $87 $86 +/- $0.2 $86 ARR $346 $345-$347 $347 Ending Cash $349 $343 $344 FCF Margin 28% 39% 31%+ Notes 1. Street Estimates per Capital IQ as of 10/7/2022 2. Management model received 8/12/2022; Estimates provided by Management on 9/22/2022; Preliminary Flash Actual provided on 10/05/2022 PROJECT ORANGE PRELIMINARY AND CONFIDENTIAL DRAFT 11


Illustrative Valuation Matrix $MM other than per share data, unless otherwise noted Management Case Street Case Premium / (Discount) To AV / Revenue P / FCF AV / Revenue P / FCF Fully Diluted Agg. Value Price Unaffected 30-Day Avg. 52 Wk. High EV CY2022E CY2023E CY2022E CY2023E CY2022E CY2023E CY2022E CY2023E Metric $17.30 $19.10 $27.40 $3,200 $2,856 $334 $416 $80 $104 $336 $440 $92 $107 Growth Rate / Margin 36% 25% 24% 25% 36% 31% 28% 24% $17.30 0% (9%) (37%) $3,200 $2,856 8.6x 6.9x 40x 31x 8.5x 6.5x 35x 30x Unaffected $22.00 27% 15% (20%) $4,076 $3,732 11.2x 9.0x 51x 39x 11.1x 8.5x 44x 38x $23.00 33% 20% (16%) $4,262 $3,918 11.7x 9.4x 53x 41x 11.7x 8.9x 46x 40x Violet IOI $24.00 39% 26% (12%) $4,449 $4,105 12.3x 9.9x 56x 43x 12.2x 9.3x 48x 41x $24.25 40% 27% (11%) $4,495 $4,151 12.4x 10.0x 56x 43x 12.4x 9.4x 49x 42x $24.50 42% 28% (11%) $4,542 $4,198 12.6x 10.1x 57x 44x 12.5x 9.5x 49x 42x Violet $24.60 42% 29% (10%) $4,561 $4,217 12.6x 10.1x 57x 44x 12.6x 9.6x 49x 42x Revised IOI 1 Violet $24.80 43% 30% (9%) $4,598 $4,254 12.7x 10.2x 58x 44x 12.7x 9.7x 50x 43x Revised IOI 2 Current $24.90 44% 30% (9%) $4,616 $4,272 12.8x 10.3x 58x 44x 12.7x 9.7x 50x 43x Proposal $25.00 45% 31% (9%) $4,635 $4,291 12.9x 10.3x 58x 44x 12.8x 9.7x 50x 43x Orange Counter $25.75 49% 35% (6%) $4,775 $4,431 13.3x 10.7x 60x 46x 13.2x 10.1x 52x 44x Proposal 2 $26.00 50% 36% (5%) $4,821 $4,477 13.4x 10.8x 60x 46x 13.3x 10.2x 52x 45x Orange Counter $26.50 53% 39% (3%) $4,915 $4,571 13.7x 11.0x 62x 47x 13.6x 10.4x 53x 46x Proposal 1 Source: CapIQ, Thomson Consensus Notes 1. Market data and consensus estimates as of unaffected share price date 9/16/2022 2. FCF defined as operating cash flow less capital expenditures PROJECT ORANGE PRELIMINARY AND CONFIDENTIAL DRAFT 12





(1) Orange Comparable Company Operational Benchmarking CY2023E Orange Market Data as of Unaffected Date 9/16/2022; Comparables as of 10/07/2022 (2) (3) CY2023E Revenue Growth (%) CY2023E Adj. EBITDA Margin (%) CY2023E Free Cash Flow Margin (%) CY2023E Rule of (%) 56 17 25 31 Management Management Management Street 50 17 24 25 Street Street Street Management 67 44 37 31 ZoomInfo Sprout Social ZoomInfo ZoomInfo 48 22 19 30 Atlassian ZoomInfo Jamf Atlassian 40 20 18 29 Jamf Asana DocuSign DocuSign 38 29 19 18 Hubspot Smartsheet Atlassian Jamf 36 28 11 14 Sprout Social Atlassian Hubspot Hubspot 33 9 3 25 PagerDuty Hubspot PagerDuty PagerDuty 32 (0) 5 24 Smartsheet PagerDuty Sprout Social Sprout Social 3 28 23 (1) DocuSign Jamf Smartsheet Smartsheet 10 12 (31) (18) Asana DocuSign Asana Asana 40 69 37 36 Crowdstrike Crowdstr ke Qualys Qualys 55 20 32 32 Zscaler Zscaler Crowdstrike Crowdstrike 53 16 23 28 Qualys Okta Zscaler Zscaler 38 12 17 21 Tenable Rapid7 Tenable Tenable 35 21 9 11 Okta Tenable Rapid7 Rapid7 17 7 32 0 Rapid7 Qualys Okta Okta Source: Capital IQ, Thomson Consensus, Company Management Orange Estimates High Growth Software High Growth Security Notes 1. Market data and consensus estimates for comparables as of 10/7/2022; Orange market data and consensus estimates as of unaffected date 9/16/2022 2. Management reflects forecast provided by Management on 8/12/2022 3. Free cash flow calculated as operating cash flow less capital expenditures 4. Rule of defined as the sum of revenue growth and free cash flow margin PROJECT ORANGE PRELIMINARY AND CONFIDENTIAL DRAFT 16




2 Discounted Equity Value – Based on CY2025E LFCF (1)(2)(4) Street and Management Cases; Value at 12/31/2024 Discounted to 10/7/2022 $MM, Except Where Noted Street Case Management Case Street Case Management Case 2025E Revenue 584 697 2025E FCF 143 208 2025E FCF Margin 24.4% 29.8% 2025E Multiple 35.0x 35.0x Implied Future Equity Value $4,994 $7,284 Current FDSO 185.1 185.1 (5) Annual Basic Share Increase 0 8% 0.9% Future FDSO 189.5 190 8 Future Price per Share $26.36 $38.18 Cost of Equity (Ke) 12.7% 12.7% Discount Period (Years) 2 23 2.23 Price Per Share NPV $20.16 $29.21 Implied Fully-Diluted Future Discounted Fully-Diluted (3) Share Price (at Dec 2024) Future Share Price Street Case Management Case Street Case Management Case CY2025E LFCF, Margin P / NTM Multiple $143 $208 24% 30% 30.0x $22.61 $32.74 $17.30 $25.05 Unaffected NTM Multiple 35.0x $26.36 $38.18 $20.16 $29.21 32.6x Discounted 2.2 @$17.30 Years at 12.7% Cost of Equity 40.0x $30.10 $43.62 $23.03 $33.37 Final Bid NTM 45.0x $33.85 $49.05 $25.89 $37.52 Multiple 47.0x @$24.90 Notes 4. Current FDSO based on implied share price; represents annualized increase in basic shares through 12/31/2023 1. Market data and consensus as of 9/16/2022; Discounted to 10/7/2022 5. Share creep calculated based on projected cumulative SBC divided by current share price to determine CAGR over the period 2. Management reflects forecast provided by Management on 8/12/2022 2022 to 2025 3. Cost of equity of 12.7% based on 1.49 Barra beta as of 9/16/2022, 3.8% risk-free rate and 6 0% market risk premium PROJECT ORANGE PRELIMINARY AND CONFIDENTIAL DRAFT 19


3 Long Term Orange Financial Profile (1)(2) $MM, unless otherwise noted Extrapolations reviewed and approved by management Terminal CY19A CY20A CY21A CY22E CY23E CY24E CY25E CY26E CY27E CY28E CY29E CY30E CY31E CY32E Year Select DCF Input Financials Revenue 121 175 246 336 440 555 697 854 1,020 1,186 1,344 1,480 1,585 1,649 1,706 % Revenue Growth 45% 41% 36% 31% 26% 26% 22% 19% 16% 13% 10% 7% 4% 3% Adj. EBITDA 1 16 42 49 75 132 213 282 360 447 537 612 676 725 751 Margin % 1% 9% 17% 15% 17% 24% 31% 33% 35% 38% 40% 41% 43% 44% 44% D & A 8 12 14 14 16 21 25 26 31 36 40 44 48 49 51 % of Revenue 7% 7% 6% 4% 4% 4% 4% 3% 3% 3% 3% 3% 3% 3% 3% CapEx + Capitalized Content (17) (13) (12) (21) (25) (18) (20) (26) (31) (36) (40) (44) (48) (49) (51) % of Revenue 14% 8% 5% 6% 6% 3% 3% 3% 3% 3% 3% 3% 3% 3% 3% SBC (118) (5) (18) (26) (39) (42) (42) (43) (51) (59) (67) (74) (79) (82) (85) % of Revenue 98% 3% 8% 8% 9% 8% 6% 5% 5% 5% 5% 5% 5% 5% 5% Cash Taxes 0 0 (1) (1) (5) (25) (44) (53) (70) (88) (107) (123) (137) (148) (154) Rate % 5% 54% 8% 8% 25% 36% 30% 25% 25% 25% 25% 25% 25% 25% 25% Change in NWC 35 35 50 64 65 69 63 78 83 83 79 68 52 32 29 % Change in Revenue 64% 71% 72% 62% 60% 44% 50% 50% 50% 50% 50% 50% 50% 50% uFCF (99) 32 61 66 71 116 171 238 292 347 401 438 465 477 490 % of Revenue (82%) 18% 25% 20% 16% 21% 24% 28% 29% 29% 30% 30% 29% 29% 29% EBITDA % - uFCF % 83% (9%) (8%) (5%) 1% 3% 6% 5% 7% 8% 10% 12% 13% 15% 15% Notes 1. Management case through to FY2025 reflects forecasts provided by Management on 8/12/2022 2. Extrapolations were reviewed and approved by Management on 9/1/2022 PROJECT ORANGE PRELIMINARY AND CONFIDENTIAL DRAFT 20


3 Discounted Cash Flow Analysis Preliminary Discounted Cash Flow Analysis $MM Discounted Cash Flow Analysis Perpetuity Growth Rate 3.0% 3.5% 4.0% Discount Rate 13.7% 12.7% 11.7% 13.7% 12.7% 11.7% 13.7% 12.7% 11.7% Implied Valuation NPV of UFCF 1,408 1,479 1,554 1,408 1,479 1,554 1,408 1,479 1,554 FV of Terminal Value 4,694 5,175 5,767 4,947 5,482 6,147 5,226 5,823 6,575 PV of Terminal Value 1,381 1,656 2,009 1,456 1,754 2,141 1,538 1,863 2,290 Aggregate Value 2,789 3,135 3,562 2,864 3,233 3,695 2,946 3,342 3,844 Net Cash 344 344 344 344 344 344 344 344 344 Equity Value 3,133 3,479 3,906 3,208 3,577 4,039 3,290 3,686 4,188 FDSO 184.9 185.1 185.2 185.0 185 1 185.3 185.0 185.1 185.3 Price / Share $16.94 $18.80 $21.09 $17.34 $19.32 $21.80 $17.78 $19.91 $22.60 % Premium / (Discount) to Unaffected (2%) 9% 22% 0% 12% 26% 3% 15% 31% % of Aggregate Value UFCF 50% 47% 44% 49% 46% 42% 48% 44% 40% Terminal Value 50% 53% 56% 51% 54% 58% 52% 56% 60% Implied Terminal EBITDA Multiple 6.3x 6.9x 7.7x 6.6x 7.3x 8.2x 7.0x 7.8x 8.8x Implied Exit FCF Multiple (P/LFCF) 10.3x 11.3x 12.5x 10.8x 11.9x 13.3x 11.4x 12.6x 14.1x (2)(5) (2)(3) (4)(5) Share Price Sensitivity Implied Exit Multiples Revenue and FCF Sensitivity $/Share, Growth declines to 4% by 2032; EBITDA margin X, Growth declines to 4% by 2032; EBITDA margin $/Share, FY2032 Revenue Growth (linear decline from increases to 44% increases to 44%; Assumes 12.7% WACC FY2026) 2032 Revenue Growth WACC Multiple 2% 4% 8% 12% 16% AV / Revenue AV / EBITDA AV / FCF 13.7% 13.2% 12.7% 12.2% 11.7% 34% $14.39 $15.14 $16.76 $18.56 $20.56 2.5% 2.9x 6.5x 10.0x 2.5% $16.58 $17.41 $18.32 $19.33 $20.46 39% $16.36 $17.23 $19.11 $21.19 $23.51 3.0% 3.0x 6.9x 10.6x 3.0% $16.94 $17.82 $18.80 $19.88 $21.09 44% $18.34 $19.32 $21.45 $23.82 $26.45 3.5% $17.34 $18.28 $19.32 $20.49 $21.80 3.5% 3.2x 7.3x 11.2x 49% $20.31 $21.41 $23.80 $26.46 $29.40 4.0% $17.78 $18.79 $19.91 $21.17 $22.60 4.0% 3.4x 7.8x 11.9x 4.5% $18.27 $19.35 $20.57 $21.94 $23.51 4.5% 3.6x 8.3x 12.7x 54% $22.29 $23.51 $26.15 $29.09 $32.34 Notes Range from Football Field (p. 15) 1. Management case through to FY2025 reflects forecasts provided by Management on 8/12/2022 2. Extrapolations were reviewed and approved by Management on 9/1/2022 3. Calculated as implied exited aggregate value divided by relevant perpetual operating metric 4. Table assumes 12.7% WACC and 3.5% PGR; Barra Beta as of 9/16/2022 5. FDSO based on basic share count and dilutive securities schedule per Orange Management as of 9/30/2022 6. CY2023E NPV of uFCF stubbed for mid-year PROJECT ORANGE PRELIMINARY AND CONFIDENTIAL DRAFT 21 PGR PGR Terminal EBITDA Margin




6 Broker Estimates for Orange (1)(2) Select Analyst Estimates and Targets $MM, except per share data Following Q2’22 Earnings Announcement, broker price targets Revenue Gross Margin Adj. EBITDA Free Cash Flow range decreased from $19-$29 Current Price Target Valuation Price Target Methodology Methodology Broker Date of Report Rating CY22E CY23E CY24E CY22E CY23E CY24E CY22E CY23E CY24E CY22E CY23E CY24E ~12x CY2023E AV / Cowen 8/4/2022 Outperform 28.00 AV / FCF $335 $415 - 87% 87% - - - - $87 $123 - Revenue DCF (20x CY2032 Truist 8/4/2022 Buy 28.00 AV / FCF, DCF $334 $424 - 86% 85% - $54 $59 - $81 $98 - FCF TV) DCF (25x CY2026E Piper Sandler 8/4/2022 Overweight 25.00 AV / FCF, DCF $334 $421 - 87% 85% - - - - $83 $114 - FCF) ~40x CY2023E AV / AV / Revenue, Canaccord 8/4/2022 Buy 25.00 $334 $421 - 87% 87% - - - - $80 $105 - FCF AV / FCF 10x CY2023E AV / Stephens 8/4/2022 Overweight 25.00 AV / Revenue $334 $422 $515 88% 87% 87% $53 $72 $98 $81 $114 - Revenue 9.7x AV / CY2023E Needham 8/4/2022 Buy 24.00 AV / Revenue $334 $415 $507 87% 87% 87% - - - $80 $107 $133 Revenue 85% 7 5x AV / Goldman Sachs 8/4/2022 Buy 22.00 Revenue; 15% AV / Revenue $332 $412 $492 86% 85% 85% $46 $65 $90 $64 $106 $146 Strategic Ppaids 25x CY2027E Morgan Stanley 8/4/2022 Equal Weight 21.00 AV / FCF $333 $413 $502 86% 86% 87% $46 $60 $93 $85 $84 $115 AV/FCF 7x CY2023E AV / Bank of America 8/4/2022 Buy 20.00 AV / Revenue $334 $420 $521 87% 85% 85% $57 $72 $97 $79 $98 $110 Revenue 8 0x CY2023E AV / Citi 8/5/2022 Neutral 20.00 AV / Revenue $334 $394 $484 83% 78% 78% $52 $63 $79 $84 $98 $126 Revenue 8 0x CY2023E AV / UBS 8/4/2022 Neutral 19.00 AV / Revenue $333 $407 $475 87% 87% 88% $60 $75 $89 $82 $95 $109 Revenue Mean $23.36 $334 $415 $499 87% 85% 85% $53 $66 $91 $81 $104 $123 Median $24.00 $334 $415 $502 87% 86% 87% $53 $65 $92 $81 $105 $121 Post earnings, median CY22 revenue estimates increased Notes from $332; CY23 estimates 1. Latest available broker estimates, excludes Berenberg due to price target as of 2/17/2022 decreased from $417 2. Broker research from prior to the unaffected date of 9/16/2022 PROJECT ORANGE PRELIMINARY AND CONFIDENTIAL DRAFT 24


APPENDIX Reference Materials PRELIMINARY AND CONFIDENTIAL DRAFT 25


Orange Capitalization Summary and Aggregate Value Build (1)(2)(3) $MM, Except Where Noted Unaffected Spot Final Bid Share Price ($) $17.30 $24.90 Basic Total Shares Outstanding (#MM) 176.1 176.1 Shares Weighted Avg Diluted Shares Outstanding Diluted Shares Outstanding Dilutive Instruments (Vested) (#MM) Strike Price ($) (#MM) (#MM) RSUs Outstanding 0.00 $0.00 0.00 0.00 Options Outstanding 5.85 $2.81 4.90 5.19 Total 4.90 5.19 Diluted Shares Outstanding ($MM) - Excluding Unvested 181.0 181.2 Vested Equity Value Funded Upfront $3,130 $4,513 Shares Weighted Avg Diluted Shares Outstanding Diluted Shares Outstanding Dilutive Instruments (Unvested) (#MM) Strike Price ($) (#MM) (#MM) RSUs Outstanding 2.69 $0.00 2.69 2.69 $103MM of Unvested Options Outstanding 1.80 $4.69 1.32 1.46 Equity Value Total 4.01 4.16 Fully Diluted Shares Outstanding (#MM) 185.0 185.4 Fully Diluted Equity Value $3,200 $4,616 (+) Debt Principal $0 $0 (-) Cash ($344) ($344) Fully Diluted Aggregate Value $2,856 $4,272 Notes 1. Market data as of 9/16/2022 2. Debt balance, options, and RSUs as of 9/30/2022 per Orange Management 3. Assumes $344MM Cash and 176.1MM basic shares outstanding as of 9/30/2022 per Orange Management PROJECT ORANGE PRELIMINARY AND CONFIDENTIAL DRAFT REFERENCE MATERIALS 26


WACC Calculation (1)(2) (1) Predicted Beta Orange WACC Analysis 1.6 WACC Calculation 1.5 Low Base High 1.4 Market Risk Premium 6.0% 6.0% 6.0% (2) 1.3 Barra Predicted Beta 1.49 1.49 1.49 1.2 Risk Free Rate - 10-Year Spot as of 10/07/22 3.8% 3.8% 3.8% Sensitivity Adjustment (1.0%) 0.0% 1.0% 1.1 Cost of Equity 11.7% 12.7% 13.7% 1 Equity / Total Capitalization 100.0% 100.0% 100.0% Pre-Tax Cost of Debt - - - Tax Rate 25% 25% 25% After-Tax Cost of Debt - - - Total Debt / Total Capitalization - - - WACC 11.7% 12.7% 13.7% Notes 1. Market data as of 10/7/2022 2. Barra Beta per Capital IQ as of 9/16/2022 PROJECT ORANGE PRELIMINARY AND CONFIDENTIAL DRAFT REFERENCE MATERIALS 27 Apr-21 Jun-21 Aug-21 Oct-21 Dec-21 Feb-22 Apr-22 Jun-22 Oct-22


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International plc, Morgan Stanley Securities Limited, Morgan Stanley Bank AG, Morgan Stanley MUFG Securities Co., Ltd., Mitsubishi UFJ Morgan Stanley Securities Co., Ltd., Morgan Stanley Asia Limited, Morgan Stanley Australia Securities Limited, Morgan Stanley Australia Limited, Morgan Stanley Asia (Singapore) Pte., Morgan Stanley Services Limited, Morgan Stanley & Co. International plc Seoul Branch and/or Morgan Stanley Canada Limited Unless governing law permits otherwise, you must contact an authorized Morgan Stanley entity in your jurisdiction regarding this document or any of the information contained herein. © Morgan Stanley and/or certain of its affiliates. All rights reserved. PROJECT ORANGE PRELIMINARY AND CONFIDENTIAL DRAFT 28

Exhibit (c)(iii)

Exhibit (c)(iii) Confidential Treatment Requested. Certain portions of this exhibit have been redacted and separately filed with the Securities and Exchange Commission pursuant to a request for confidential treatment. Special Committee Discussion Project Orange July 28, 2022 PRELIMINARY AND CONFIDENTIAL DRAFT


SECTION 1 Process Update & Considerations PRELIMINARY AND CONFIDENTIAL DRAFT 2


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Potential Strategic Buyers *** Tier 1 – Suggested Outreach Tier 2 – Others Considered PROJECT ORANGE PRELIMINARY AND CONFIDENTIAL DRAFT PROCESS UPDATE & CONSIDERATIONS 6


Illustrative Process Timeline July August September 25 26 27 28 29 1 2 3 4 5 8 9 10 11 12 15 16 17 18 19 22 23 24 25 26 29 30 31 1 2 5 6 7 8 9 Timeline to Transaction Signing and Announcement Prepare Marketing Materials Management Presentations Targeted Diligence Sessions Q2'22 Earnings Announcement Initial Bid Date Negotiate Merger Agreement Sign & Announce PROJECT ORANGE PRELIMINARY AND CONFIDENTIAL DRAFT Process Update & Considerations 7


Morgan Stanley *** PROJECT ORANGE PRELIMINARY AND CONFIDENTIAL DRAFT PROCESS UPDATE & CONSIDERATIONS 8


SECTION 2 Standalone Forecasts Overview PRELIMINARY AND CONFIDENTIAL DRAFT 9





SECTION 3 Valuation Perspectives PRELIMINARY AND CONFIDENTIAL DRAFT 13



…Despite Consistently Beating and Raising Consensus Estimates and Demonstrating Reacceleration Since Going Public (1) Performance vs. Street Estimates Since IPO $MM Q1 FY2021 Q2 FY2021 Q3 FY2021 Q4 FY2021 Q1 FY2022 Q2 FY2022 Revenue Prior Consensus 54.2 59.0 64.7 69.4 79.0 Guidance 56.0 61.0 67.0 72.5 79.0 Guidance vs. Prior Consensus +3.4% +3.4% +3.6% +4.5% +0.1% Street Consensus 51.0 56.3 61.5 67.1 73.0 Actual Results 53.6 59.4 64.1 69.3 75.0 Actual vs. Consensus +4.9% +5.4% +4.3% +3.3% +2.8% Non-GAAP Operating Income Street Consensus (1.0) (3.0) 1.1 2.6 5.6 Actual Results 5.9 4.5 3.0 15.1 9.0 Actual vs. Consensus N.M. N.M. +180.0% +476.4% +62.1% (2) FCF Street Consensus 2.8 0.5 7.3 5.3 8.9 Actual Results 21.3 13.5 18.8 20.2 24.1 Actual vs. Consensus +660.9% +2464.4% +157.1% +278.5% +170.4% Source: Capital IQ, Thomson Estimates Notes 1. Thomson estimates as of 7/27/2022 2. FCF defined as Operating Cash Flow less CapEx PROJECT ORANGE PRELIMINARY AND CONFIDENTIAL DRAFT VALUATION PERSPECTIVES 15









(1) Orange Comparable Company Operational Benchmarking CY2022E (2) (3) CY2022E Revenue Growth (%) CY2022E Adj. EBITDA Margin (%) CY2022E Free Cash Flow Margin (%) CY2022E Rule of (%) 35 13 20 55 Orange Orange Orange Orange 42 43 36 77 Asana ZoomInfo ZoomInfo ZoomInfo 41 21 26 53 ZoomInfo Atlassian Atlassian Atlassian 37 20 19 48 Smartsheet DocuSign DocuSign Hubspot 35 18 16 45 Sprout Social Jamf Jamf Jamf 32 12 15 39 Hubspot Hubspot Hubspot Sprout Social 30 1 4 39 PagerDuty Avalara Sprout Social Smartsheet 30 (1) 2 36 Jamf PagerDuty Avalara DocuSign 27 2 (3) 32 Atlassian Sprout Social PagerDuty PagerDuty 24 1 27 (7) Avalara Smartsheet Smartsheet Avalara 17 (47) (31) 11 DocuSign Asana Asana Asana 52 40 38 83 Crowdstrike Qualys Qualys Crowdstrike 48 18 32 69 Zscaler Crowdstrike Crowdstrike Zscaler 40 14 21 56 Okta Zscaler Zscaler Qualys 29 9 17 43 Rapid7 Tenable Tenable Okta 25 7 8 42 Tenable Rapid7 Rapid7 Tenable 18 4 (5) 36 Qualys Okta Okta Rapid7 Source: Capital IQ, Thomson Consensus, Company Management Notes Orange Street Estimates High Growth Software High Growth Security 1. Market data and consensus estimates as of 7/27/2022 2. Free cash flow calculated as operating cash flow less capital expenditures 3. Rule of defined as the sum of revenue growth and free cash flow margin PROJECT ORANGE PRELIMINARY AND CONFIDENTIAL DRAFT VALUATION PERSPECTIVES 23


(1) Orange Comparable Company Operational Benchmarking (Cont’d) CY2023E (2) (3) CY2023E Revenue Growth (%) CY2023E Adj. EBITDA Margin (%) CY2023E Free Cash Flow Margin (%) CY2023E Rule of (%) 25 15 23 48 Orange Orange Orange Orange 31 44 38 68 Smartsheet ZoomInfo ZoomInfo ZoomInfo 31 23 20 49 Asana Jamf Atlassian Atlassian 31 23 18 42 Sprout Social Atlassian DocuSign Hubspot 30 20 17 40 ZoomInfo DocuSign Jamf Jamf 29 13 16 36 Atlassian Hubspot Hubspot Sprout Social 26 3 6 35 Hubspot PagerDuty PagerDuty Smartsheet 26 3 5 31 PagerDuty Avalara Sprout Social PagerDuty 23 (0) 5 30 Jamf Sprout Social Avalara DocuSign 21 4 (2) 26 Avalara Smartsheet Smartsheet Avalara 12 (18) 13 (34) DocuSign Asana Asana Asana 36 39 34 68 Crowdstrike Qualys Qualys Crowdstrike 33 20 32 58 Okta Crowdstrike Crowdstrike Zscaler 32 16 25 50 Zscaler Zscaler Zscaler Qualys 21 11 17 40 Rapid7 Tenable Tenable Okta 20 8 10 38 Tenable Rapid7 Rapid7 Tenable 17 7 (1) Qualys Okta Okta Rapid7 31 Source: Capital IQ, Thomson Consensus, Company Management Notes Orange Street Estimates High Growth Software High Growth Security 1. Market data and consensus estimates as of 7/27/2022 2. Free cash flow calculated as operating cash flow less capital expenditures 3. Rule of defined as the sum of revenue growth and free cash flow margin PROJECT ORANGE PRELIMINARY AND CONFIDENTIAL DRAFT VALUATION PERSPECTIVES 24





(1) Illustrative Valuation Matrix $MM other than per share data Consensus Premium / (Discount) To AV / Revenue P / FCF AV / ARR Fully Diluted Agg. Value Price Current 30-Day Avg. 52 Wk. High Equity Value (AV) CY2022E CY2023E CY2022E CY2023E CY2022E CY2023E Metric $14.72 $16.51 $27.40 $2,721 $2,422 $332 $419 $68 $95 $378 $474 Growth Rate 35% 26% 20% 23% 33% 25% Current $14.72 0 0% (10.8%) (46.3%) $2,721 $2,422 7.3x 5.8x 40.0x 28.6x 6.4x 5.1x $15 00 1 9% (9.1%) (45.3%) $2,773 $2,475 7.4x 5.9x 40.7x 29.1x 6 5x 5.2x $16 00 8.7% (3.1%) (41.6%) $2,960 $2,661 8.0x 6.3x 43.5x 31.1x 7 0x 5.6x $17 00 15.5% 3.0% (38.0%) $3,146 $2,848 8.6x 6.8x 46.2x 33.0x 7 5x 6.0x $18 00 22.3% 9.1% (34.3%) $3,333 $3,035 9.1x 7.2x 48.9x 35.0x 8 0x 6.4x $19 00 29.1% 15.1% (30.7%) $3,520 $3,221 9.7x 7.7x 51.7x 36.9x 8 5x 6.8x $20 00 35.9% 21.2% (27.0%) $3,707 $3,408 10.3x 8.1x 54.4x 38.9x 9 0x 7.2x $21 00 42.7% 27.2% (23.4%) $3,893 $3,595 10.8x 8.6x 57.2x 40.9x 9 5x 7.6x $22 00 49.5% 33.3% (19.7%) $4,080 $3,782 11.4x 9.0x 59.9x 42.8x 10.0x 8.0x $23 00 56.3% 39.3% (16.1%) $4,267 $3,968 11.9x 9.5x 62.7x 44.8x 10.5x 8.4x $24 00 63.0% 45.4% (12.4%) $4,453 $4,155 12.5x 9.9x 65.4x 46.7x 11.0x 8.8x $25 00 69.8% 51.5% (8.8%) $4,640 $4,342 13.1x 10.4x 68.1x 48.7x 11.5x 9.2x $26 00 76.6% 57.5% (5.1%) $4,827 $4,528 13.6x 10.8x 70.9x 50.7x 12.0x 9.6x $27 00 83.4% 63.6% (1.5%) $5,013 $4,715 14.2x 11.2x 73.6x 52.6x 12.5x 9.9x $28 00 90.2% 69.6% 2.2% $5,200 $4,902 14.7x 11.7x 76.4x 54.6x 13.0x 10.3x $29 00 97.0% 75.7% 5.8% $5,387 $5,089 15.3x 12.1x 79.1x 56.5x 13.4x 10.7x $30 00 103.8% 81.8% 9.5% $5,574 $5,275 15.9x 12.6x 81.8x 58.5x 13.9x 11.1x $31 00 110.6% 87.8% 13.1% $5,760 $5,462 16.4x 13.0x 84.6x 60.5x 14.4x 11.5x $32 00 117.4% 93.9% 16.8% $5,947 $5,649 17.0x 13.5x 87.3x 62.4x 14.9x 11.9x $33 00 124.2% 99.9% 20.4% $6,134 $5,835 17.6x 13.9x 90.1x 64.4x 15.4x 12.3x Source: CapIQ, Thomson Consensus Notes 1. Market data and consensus estimates as of 7/27/2022 PROJECT ORANGE PRELIMINARY AND CONFIDENTIAL DRAFT VALUATION PERSPECTIVES 28


APPENDIX A Valuation Reference Materials PRELIMINARY AND CONFIDENTIAL DRAFT 29


Broker Estimates for Orange (1) Select Analyst Estimates and Targets $MM, except per share data Revenue Gross Margin EBITDA Free Cash Flow Current Discounted Price Target Valuation Broker Date of Report Rating Price Target Price Target Methodology Methodology CY22E CY23E CY24E CY22E CY23E CY24E CY22E CY23E CY24E CY22E CY23E CY24E DCF (30x CY2026E Piper Sandler 6/14/2022 Overweight 29.00 25.82 AV / FCF, DCF $333 $431 - 86% 85% - - - - $68 $97 - FCF TV) ~12x CY2023E AV / Cowen 6/22/2022 Outperform 28.00 24.93 AV / Revenue $333 $413 - 87% 85% - - - - $74 $114 - Revenue DCF (20x CY2032 Truist 5/10/2022 Buy 28.00 24.93 AV / FCF, DCF $332 $422 - 85% 85% - $47 $59 - $64 $96 - FCF TV) 11.5x CY2023E AV AV / Revenue, Canaccord 5/10/2022 Strong Buy 28.00 24.93 $333 $428 - 86% 85% - - - - $65 $94 - / Revenue AV / FCF - Goldman Sachs 7/26/2022 Buy 25.00 22.26 - - $332 $412 $492 - - $46 $65 $90 - - - 10x CY2023E AV / Stephens 6/2/2022 Overweight 25.00 22.26 AV / Revenue $333 $422 - 86% 84% - $46 $66 - $66 $89 - Revenue 23x CY2027E Morgan Stanley 5/11/2022 Equal Weight 24.00 21.37 AV / FCF $332 $412 $502 85% 86% 86% $38 $61 $94 $63 $84 $115 AV/FCF Needham 6/3/2022 Buy 23.00 20.48 - - $331 $417 $493 85% 85% 85% - - - $66 $80 - 7.5x CY2023E AV / Bank of America 5/10/2022 Strong Buy 20.00 17.81 AV / Revenue $333 $424 $538 86% 85% 85% $40 $50 $74 $65 $82 $108 Revenue 7.0x CY2023E AV / Citi 5/11/2022 Neutral 19.00 16.92 AV / Revenue $332 $412 $503 83% 79% 78% $38 $61 $78 $64 $94 $124 Revenue ~8 0x CY2023E AV UBS 5/12/2022 Neutral 19.00 16.92 AV / Revenue $332 $406 $474 86% 86% 86% $56 $69 $83 $66 $76 $86 / Revenue Mean $24.36 $21.69 $332 $418 $500 85% 84% 84% $44 $61 $84 $66 $90 $108 Median $25.00 $22.26 $332 $417 $498 86% 85% 85% $46 $61 $83 $65 $91 $111 Consensus 7/27/2022 $332 $418 $500 86% 85% 85% $45 $63 $92 $65 $80 $102 Notes 1. Latest available broker estimates, excludes Berenberg due to price target as of 2/17/2022 PROJECT ORANGE PRELIMINARY AND CONFIDENTIAL DRAFT VALUATION REFERENCE MATERIALS 30


Orange Capitalization Summary and Aggregate Value Build (1)(2)(3) $MM, Except Where Noted Current Spot Current Share Price ($) $14.72 Basic Total Shares Outstanding (#MM) 175.1 Shares Weighted Avg Diluted Shares Outstanding Dilutive Instruments (#MM) Strike Price ($) (#MM) RSUs Outstanding 3.10 0.00 3.10 Options Outstanding 8.54 $3.24 6.66 Total 9.75 Debt Amount Total Debt - Fully Diluted Shares Outstanding (#MM) 184.8 Fully Diluted Equity Value $2,721 (+) Debt Principal - (-) Cash ($298) Fully Diluted Aggregate Value $2,422 Notes 1. Market data as of 7/27/2022 2. Debt balance, options, and RSUs as of 3/31/2022 3. Assumes $298MM Cash and 175.1MM basic shares outstanding as of 3/31/2022 per 10Q PROJECT ORANGE PRELIMINARY AND CONFIDENTIAL DRAFT VALUATION REFERENCE MATERIALS 31


WACC Calculation (1)(2) (1) Predicted Beta Orange WACC Analysis 1.6 WACC Calculation 1.5 Low Base High Market Risk Premium 6.0% 6.0% 6.0% 1.4 (2) Barra Predicted Beta 1.54 1.54 1.54 1.3 Risk Free Rate - 10-Year Spot as of 07/27/22 2.8% 2.8% 2.8% 1.2 1.1 Sensitivity Adjustment (1.0%) 0.0% 1.0% 1 Cost of Equity 11.0% 12.0% 13.0% Equity / Total Capitalization 100.0% 100.0% 100.0% Pre-Tax Cost of Debt - - - Tax Rate 25% 25% 25% After-Tax Cost of Debt - - - Total Debt / Total Capitalization - - - WACC 11.0% 12.0% 13.0% Notes 1. Market data as of 7/27/2022 2. Barra Beta per Capital IQ as of 7/27/2022 PROJECT ORANGE PRELIMINARY AND CONFIDENTIAL DRAFT VALUATION REFERENCE MATERIALS 32 Apr-21 Jun-21 Aug-21 Oct-21 Dec-21 Feb-22 Apr-22 Jul-22


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Exhibit (c)(iv)

Exhibit (c)(iv) Confidential Treatment Requested. Certain portions of this exhibit have been redacted and separately filed with the Securities and Exchange Commission pursuant to a request for confidential treatment. Special Committee Update and Preliminary Valuation Discussion Project Orange August 19, 2022 PRELIMINARY AND CONFIDENTIAL DRAFT


Executive Summary *** • Management has prepared and the Board has approved financial forecasts –Morgan Stanley has prepared a preliminary valuation analysis based on the forecasts (1) • Share price was up 6% on the back of successful quarterly earnings results. Now trading at $20.80 Notes 1. Share price increase calculated based on spike post-earnings release on 8/4/2022. Current share price as of closing 8/16/2022. PROJECT ORANGE PRELIMINARY AND CONFIDENTIAL DRAFT 2


Outreach Summary Company Connected*** Earnings Pack NDA Signed MP Scheduled Meeting Held Data Pack Sent Sponsors ✓✓✓✓ ✓✓✓✓✓ ✓✓✓✓✓ ✓✓✓✓✓ ✓✓✓✓ ✓✓✓ ✓✓✓ ✓✓✓ ✓✓ ✓ PROJECT ORANGE PRELIMINARY AND CONFIDENTIAL DRAFT 3


Outreach Summary *** Company Connected Earnings Pack NDA Signed MP Scheduled Meeting Held Data Pack Sent Strategics ✓ ✓ No Interest ✓✓✓✓✓ ✓✓ ✓ ✓ Insider ✓ PROJECT ORANGE PRELIMINARY AND CONFIDENTIAL DRAFT 4


Management Presentation Schedule Project Orange 16 Parties Contacted Sunday Monday Tuesday Wednesday Thursday Friday Saturday *** • 4 Meetings Held 7 8 9 10 11 12 13 • 3 Meetings Scheduled Management Management • 2 To Be Scheduled Presentation Presentation • 3 Has Not Requested NDA • • 14 15 16 17 18 19 20 To Be Scheduled: Management Management Management • Presentation Presentation Presentation • • • • 21 22 23 24 25 26 27 Management Management Presentation Presentation *** NDA/Engagement Under • • Consideration: • • 28 29 30 31 • Management Availability Provided (1 session per day) Contemplated Bid Date PROJECT ORANGE PRELIMINARY AND CONFIDENTIAL DRAFT 5


Process Timeline July August September 25 26 27 28 29 1 2 3 4 5 8 9 10 11 12 15 16 17 18 19 22 23 24 25 26 29 30 31 1 2 5 6 7 8 9 12 13 14 15 16 Prepare Marketing, Forecast and Initial Diligence Q2'22 Earnings Announcement Management Presentations Targeted Diligence Sessions Initial Bid Date Confirmatory Diligence and Negotiate Merger Sign & Announce PROJECT ORANGE PRELIMINARY AND CONFIDENTIAL DRAFT 6


SECTION 1 Standalone Forecasts Overview PRELIMINARY AND CONFIDENTIAL DRAFT 7


Valuation Consideration Pros Cons • Questions about ultimate size of TAM • Growth above peer group at >35% YoY • Current / Future Competition • Highly recurring business model (108% net retention) • Future growth at-scale • Strong profits (FCF margin of 25%+, Rule of 60+) • High exposure to SMB market • Category leader • Technology content / differentiation PROJECT ORANGE PRELIMINARY AND CONFIDENTIAL DRAFT STANDALONE FORECASTS OVERVIEW 8


(1)(2) Overview of Street vs. Management Plan Total Revenue Gross Profit $MM $MM $697 $622 $555 $490 $440 $381 $569 $490 $336 $490 $290 $422 $246 $415 $355 $175 $334 $289 $121 $211 $148 $100 Total Revenue Growth Gross Profit Margin % % 59.1% 36.3% 89.2% 45.0% 31.2% 88.3% 40.8% 26.1% 25.6% 86.5% 86.3% 35.4% 24.5% 86.5% 86.2% 86.2% 85.7% 85.6% 18.0% 84.7% 16.2% 82.9% Actuals Street Management Street Extrapolations Notes: 1. Street financials represent Thomson consensus estimates as of 8/12/2022 2. Management reflects forecast provided by Management on 8/12/2022 PROJECT ORANGE PRELIMINARY AND CONFIDENTIAL DRAFT STANDALONE FORECASTS OVERVIEW 9


(1)(2) Overview of Street vs. Management Plan (Cont’d) Adj. EBITDA Levered Free Cash Flow $MM $MM $213 $208 $151 $132 $107 $92 $137 $75 $121 $71 $121 $53 $105 $89 $42 $82 $37 $66 $19 $16 $49 $1 Adj. EBITDA Margin Levered Free Cash Flow Margin % % 29.8% 30.6% 28.9% 27.5% 27.3% 24.4% 23.8% 21.0% 25.2% 24.7% 24.6% 24.0% 17.1% 15.7% 16.0% 21.2% 18.2% 17.1% 16.0% 14.6% 0.8% 9.0% Actuals Street Management Street Extrapolations Notes: 1. Street financials represent Thomson consensus estimates as of 8/12/2022 2. Management reflects forecast provided by Management on 8/12/2022 PROJECT ORANGE PRELIMINARY AND CONFIDENTIAL DRAFT STANDALONE FORECASTS OVERVIEW 10


SECTION 2 Preliminary Valuation Perspectives PRELIMINARY AND CONFIDENTIAL DRAFT 11


Orange Performance Has Been Volatile Since IPO, Particularly During Recent Market Turbulence… (1)(2) Share Price Performance Since IPO Price per Share ($) Volume (MM) 40 15 7/2/2021: Kaseya 10/212021: Orange ransomware announces it will acquire 5/3/2022: Broader market attack SecurityAdvisor and volatility amid heightened intruduce a New uncertainty around inflation, 35 Information Security quantitative tightening, category titled Human 12 China slowdown and Detection and Response 2/16/2022: Orange Russia / Ukraine war announces transition of Co-President and CFO 6/24/2022: Orange is Krish Venkataraman to 6/8/2021: Orange 11/10/2021: Orange added to the Russell Board of Directors launches new announces upsize and 1000 Index 8/19/2021: Orange 30 Compliance Plus pricing of proposed launches Resource Kit to Training Module Follow-On Offering defend against mounting 3/10/2022: Orange cyber attacks 9 appoints Robert Bob Reich as new Chief Financial Officer 25 Orange Capitalization 6 (1) $MM, unless otherwise noted 8/12/2021: Orange 20 6/23/2021: 11/16/2021: Orange $20.21 announces Upsize Share Price $20.21 Orange adds completes acquisition of and Pricing of Michael Williams SecurityAdvisor Follow-On Offering FDSO 185 as new Chief Marketing Officer Fully Diluted Equity Value $3,744 2/24/2022: 3 7/20/2021: Russia SolarWinds (-) Cash (315) 15 9/16/2021: Orange invades Closes releases 2021 State Ukraine Spin-Off of of Privacy and (+) Debt 0 N-Able Security Awareness Aggregate Value $3,428 Report AV / CY 2022E Revenue 10.3x 10 0 AV / CY 2023E Revenue 8.3x Apr-21 May-21 Jul-21 Aug-21 Sep-21 Nov-21 Dec-21 Jan-22 Feb-22 Apr-22 May-22 Jun-22 Aug-22 Volume Price Source: Capital IQ Notes: 1. Market data as of 8/12/2022 2. High and low based on closing prices as of Capital IQ PROJECT ORANGE PRELIMINARY AND CONFIDENTIAL DRAFT PRELIMINARY VALUATION PERSPECTIVES 12


Since IPO, Orange Share Price Has Outperformed Peers… (1)(2) Since Orange IPO Share Price Performance Indexed to 100 (%) 225 200 175 150 26% 125 3% 100 (3%) 75 (23%) 50 Apr-21 May-21 Jul-21 Aug-21 Sep-21 Nov-21 Dec-21 Jan-22 Feb-22 Apr-22 May-22 Jun-22 Aug-22 Orange High Growth Software High Growth Security S&P 500 Source: Capital IQ Notes: 1. Market data and Thomson estimates as of 8/12/2022 2. Median of each category shown; High Growth Software includes: Atlassian, Docusign, Smartsheet, Jamf, ZoomInfo, Asana, Sprout Social, Avalara, Pagerduty, Hubspot; High Growth Security includes: Crowdstrike, Okta, Qualys, Rapid7, Tenable, Zscaler PROJECT ORANGE PRELIMINARY AND CONFIDENTIAL DRAFT PRELIMINARY VALUATION PERSPECTIVES 13


…With Valuation Multiples Converging on Those of Peers Over Time (1)(2) Since Orange IPO (3)(4) AV / NTM Revenue P / NTM FCF x x 30 120 88.4x 25 100 77.3x 22.3x 20 80 17.6x 61.6x 15 60 47.9x 12.5x 45.6x 9.9x 10 40 9.5x 38.5x 9.0x 5 20 0 0 Apr-21 Jun-21 Aug-21 Oct-21 Dec-21 Feb-22 Apr-22 Jun-22 Aug-22 Apr-21 Jun-21 Aug-21 Oct-21 Dec-21 Feb-22 Apr-22 Jun-22 Aug-22 Orange High Growth Software High Growth Security Orange High Growth Software High Growth Security Source: Capital IQ Notes: 1. Market data and Thomson estimates as of 8/12/2022 2. Median of each category shown; High Growth Software includes: Atlassian, Docusign, Smartsheet, Jamf, ZoomInfo, Asana, Sprout Social, Avalara, Pagerduty, Hubspot; High Growth Security includes: Crowdstrike, Okta, Qualys, Rapid7, Tenable, Zscaler 3. FCF defined as operating cash flow less capex 4. FCF multiples above 110.0x shown as N.M. PROJECT ORANGE PRELIMINARY AND CONFIDENTIAL DRAFT PRELIMINARY VALUATION PERSPECTIVES 14


Software Multiples Have Significantly Compressed From Recent Highs NTM Forward Revenue Multiples of Software Companies Since January 2002 NTM AV / Revenue Multiple 80x All Top-5 Time Software Average Revenue Peak 2021: 67.5x Period Revenue 70x Multiple Multiple Jan 2002 Pre-GFC 7.5x 3.6x Nov 2007 60x Dec 2007 GFC 6.0x 2.8x Jun 2009 Post-GFC Jul 2009 50x 13.1x 5.1x to COVID Jan 2020 COVID to Jan 2020 45.4x 12.0x Peak Oct 2021 40x 2021 Oct 2021 67.5x 14.6x Peak Current 21.0x 6.7x 30x 20x Peak 2021: 14.6x 21.0x 7.4x 10x 6.7x 3.7x 0x All Software Top 5 Software Average of All Software (1998 - 2014) Average of All Software (2014 - ) Source: Capital IQ, as of 8/12/2022 PROJECT ORANGE PRELIMINARY AND CONFIDENTIAL DRAFT PRELIMINARY VALUATION PERSPECTIVES 15


(1)(2)(3) Preliminary Valuation Summary Share Price as of 8/12/2022: $20.21 (4) Public Trading Comparables Revenue (CY23E) $15.19 $21.87 Street Case: 6.0x - 9.0x AV / CY23E Revenue of $415MM $16.00 $23.08 Management Case: 6.0x - 9.0x AV / CY23E Revenue of $440MM Free Cash Flow (CY23E) $16.99 $25.41 Street Case: 30.0x - 45.0x P / CY23E FCF of $105MM $17.42 $26.06 Management Case: 30.0x - 45.0x P / CY23E FCF of $107MM (5) Discounted Equity Value Based on Revenue (CY25E) and discounted 2.4 Years at 11.8% cost of equity $16.20 $23.08 Street Case: 6.0x - 9.0x AV / CY25E Revenue of $569MM $19.35 $27.73 Management Case: 6.0x - 9.0x AV / CY25E Revenue of $697MM Based on Free Cash Flow (CY25E) and discounted 2.4 Years at 11.8% cost of equity $16.63 $22.14 Street Case: 30.0x - 40.0x P / CY25E FCF of $137MM $25.13 $33.47 Management Case: 30.0x - 40.0x P / CY25E FCF of $208MM (5) Discounted Cash Flow Analysis Street Case: 10.8% - 12.8% WACC; 3.0% - 4.0% PGR Management Case: 10.8% - 12.8% WACC; 3.0% - 4.0% PGR TBD Precedent Transaction Multiples Revenue (NTM CY22E) $15.88 $23.91 Street Case: 7.0x - 11.0x AV / NTM Revenue of $374MM $16.39 $24.71 Management Case: 7.0x - 11.0x AV / NTM Revenue of $388MM For Reference Precedent Transaction Premia $24.25 $30.32 20.0% - 50.0% Premium to Unaffected Spot ($20.21) $20.18 $25.22 20.0% - 50.0% Premium to 30-Day Average ($16.81) (7) Historical Trading Range $14.29 $20.21 Last 30 Days $14.29 $20.21 Last 90 Days $14.29 $27.40 Last 365 Days Analyst Price Targets $19.00 $24.00 $28.00 Undiscounted (6) Median $16.99 $21.46 $25.04 Discounted 1 Year @ 11.8% Cost of Equity $0 $5 $10 $15 $20 $25 $30 $35 $40 Notes: 4. Relevant public comparables include: Atlassian, DocuSign, Smartsheet, Jamf, ZoomInfo, Asana, Sprout Social, Avalara, 1. Market data and Thomson estimates as of 8/12/2022; Street financials represent consensus estimates through CY2024E PagerDuty, Hubspot, Okta, Qualys, Rapid7, Tenable, Crowdstrike, Zscaler 2. Management reflects forecast provided by Management on 8/12/2022 5. Valuation date for DEV and DCF as of 8/12/2022 3. Aggregate value and equity value calculations based on standalone Orange valuation and do not reflect any capitalization 6. Cost of equity of 11.8% based on 1.50 Barra predicted beta, 2.8% risk-free rate and 6.0% market risk premium effects resulting from change of control 7. Historical trading range based on daily last sale prices PROJECT ORANGE PRELIMINARY AND CONFIDENTIAL DRAFT PRELIMINARY VALUATION PERSPECTIVES 16


(1) Illustrative Valuation Matrix $MM other than per share data Street Case Management Case Premium / (Discount) To AV / Revenue P / FCF AV / ARR AV / Revenue P / FCF AV / ARR Fully Diluted Agg. Value Price Current 30-Day Avg. 52 Wk. High Equity Val. (AV) CY2022E CY2023E CY2022E CY2023E Dec-22 CY2022E CY2023E CY2022E CY2023E Dec-22 Metric $20.21 $17.25 $27.40 $3,744 $3,428 $334 $415 $82 $105 $377 $336 $440 $92 $107 $378 Growth Rate / Margin 35% 25% 25% 25% 32% 36% 31% 28% 24% 33% $20.21 0.0% 17.2% (26.2%) $3,744 $3,428 10.3x 8.3x 45.5x 35.7x 9.1x 10.2x 7.8x 40.5x 34.8x 9.1x $20.00 (1.0%) 15.9% (27.0%) $3,704 $3,389 10.2x 8.2x 45.1x 35.4x 9.0x 10.1x 7.7x 40.1x 34.5x 9.0x $21.00 3.9% 21.7% (23.4%) $3,891 $3,575 10.7x 8.6x 47.3x 37.1x 9.5x 10.7x 8.1x 42.1x 36.2x 9.4x $22.00 8.9% 27.5% (19.7%) $4,077 $3,762 11.3x 9.1x 49.6x 38.9x 10.0x 11.2x 8.5x 44.1x 37.9x 9.9x $23.00 13.8% 33.3% (16.1%) $4,264 $3,948 11.8x 9.5x 51.9x 40.7x 10.5x 11.8x 9.0x 46.2x 39.7x 10.4x $24.00 18.8% 39.1% (12.4%) $4,451 $4,135 12.4x 10.0x 54.2x 42.5x 11.0x 12.3x 9.4x 48.2x 41.4x 10.9x $25.00 23.7% 44.9% (8.8%) $4,637 $4,322 13.0x 10.4x 56.4x 44.3x 11.5x 12.9x 9.8x 50.2x 43.2x 11.4x $26.00 28.6% 50.7% (5.1%) $4,824 $4,508 13.5x 10.9x 58.7x 46.0x 12.0x 13.4x 10.2x 52.2x 44.9x 11.9x $27.00 33.6% 56.5% (1.5%) $5,010 $4,695 14.1x 11.3x 61.0x 47.8x 12.5x 14.0x 10.7x 54.2x 46.6x 12.4x $28.00 38.5% 62.3% 2.2% $5,197 $4,881 14.6x 11.8x 63.2x 49.6x 13.0x 14.5x 11.1x 56.3x 48.4x 12.9x (4) $29.00 43.5% 68.1% 5.8% $5,383 $5,068 15.2x 12.2x 65.5x 51.4x 13.5x 15.1x 11.5x 58.3x 50.1x 13.4x $30.00 48.4% 73.9% 9.5% $5,570 $5,254 15.8x 12.7x 67.8x 53.2x 14.0x 15.7x 11.9x 60.3x 51.8x 13.9x $31.00 53.4% 79.7% 13.1% $5,756 $5,441 16.3x 13.1x 70.0x 54.9x 14.5x 16.2x 12.4x 62.3x 53.6x 14.4x $32.00 58.3% 85.5% 16.8% $5,943 $5,627 16.9x 13.5x 72.3x 56.7x 14.9x 16.8x 12.8x 64.3x 55.3x 14.9x (4) Source: CapIQ, Thomson Consensus Notes: 1. Market data and consensus estimates as of 8/12/2022 PROJECT ORANGE PRELIMINARY AND CONFIDENTIAL DRAFT PRELIMINARY VALUATION PERSPECTIVES 17


Orange Comparable Company Valuation Benchmarking (1) CY2023E AV / Revenue x 18.0 16.1 15.9 15.1 CY2023E Median: 8.5x CY2023E Median: 8.2x 10.9 9.6 8.3 8.6 8.2 7.8 7.3 6.5 6.6 5.9 6.0 5.6 4.8 (1)(2)(3) CY2023E P / FCF x CY2023E Median: 46.8x CY2023E Median: 36.9x 64.5 60.6 51.3 46.8 39.6 38.6 35.7 34.8 35.2 30.9 29.5 N.M. N.M. N.M. N.M. N.M N.M. Source: Capital IQ, Thomson Consensus Notes: 1. Market data and consensus estimates as of 8/12/2022 High Growth Software High Growth Security Orange Estimates 2. Management reflects forecast provided by Management on 8/12/2022 3. Free cash flow calculated as operating cash flow less capex PROJECT ORANGE PRELIMINARY AND CONFIDENTIAL DRAFT PRELIMINARY VALUATION PERSPECTIVES 18


Orange Comparable Regression Analysis (1)(2) (1)(2)(3) AV / Revenue vs. Revenue Growth AV / Revenue vs. Revenue Growth + Free Cash Flow Margin CY2023E AV / Revenue (x) CY2023E AV / Revenue (x) 25 25 R² = 0.40 R² = 0.50 20 20 Atlassian Atlassian Zscaler Crowdstrike Zscaler Crowdstrike 15 ZoomInfo 15 ZoomInfo Sprout Social Sprout Social 10 Qualys 10 Qualys Hubspot Asana Hubspot Street Asana Okta Management Street Management Jamf Tenable Okta PagerDuty PagerDuty Jamf Tenable Rapid7 DocuSign Rapid7 DocuSign 5 5 Smartsheet Smartsheet 0 0 0% 5% 10% 15% 20% 25% 30% 35% 40% 45% 50% 55% 0% 10% 20% 30% 40% 50% 60% 70% 80% 90% CY2023E Revenue Growth (%) CY2023E Revenue Growth + Free Cash Flow Margin (%) Source: Capital IQ, Thomson Consensus Notes: 1. Market data and consensus estimates as of 8/12/2022 2. Management reflects forecast provided by Management on 8/12/2022 High Growth Software High Growth Security 3. Atlassian and Smartsheet excluded from regression as outliers 4. Free cash flow defined as operating cash flow less capital expenditures PROJECT ORANGE PRELIMINARY AND CONFIDENTIAL DRAFT PRELIMINARY VALUATION PERSPECTIVES 19


(1) Orange Comparable Company Operational Benchmarking CY2023E (2) (3) CY2023E Revenue Growth (%) CY2023E Adj. EBITDA Margin (%) CY2023E Free Cash Flow Margin (%) CY2023E Rule of (%) 17 25 56 31 Management Management Street Management 16 24 50 25 Street Street Management Street 44 38 68 31 Smartsheet ZoomInfo ZoomInfo ZoomInfo 22 20 48 31 Sprout Social Jamf Atlassian Atlassian 20 18 40 31 Asana DocuSign DocuSign Jamf 30 20 18 39 ZoomInfo Atlassian Jamf Hubspot 28 13 15 36 Atlassian Hubspot Hubspot Sprout Social 3 6 35 26 PagerDuty PagerDuty PagerDuty Smartsheet (0) 5 31 24 Hubspot Sprout Social Sprout Social PagerDuty 4 22 30 (2) Jamf Smartsheet Smartsheet DocuSign 12 (33) 12 (19) DocuSign Asana Asana Asana 38 68 36 36 Crowdstrike Qualys Qualys Crowdstrike 20 32 58 33 Okta Crowdstrike Crowdstrike Zscaler 16 25 52 32 Zscaler Zscaler Zscaler Qualys 12 17 40 22 Rapid7 Tenable Tenable Okta 21 9 11 38 Tenable Rapid7 Rapid7 Tenable (1) 17 7 33 Qualys Okta Okta Rapid7 Source: Capital IQ, Thomson Consensus, Company Management Notes: 1. Market data and consensus estimates as of 8/12/2022 Orange Estimates High Growth Software High Growth Security 2. Management reflects forecast provided by Management on 8/12/2022 3. Free cash flow calculated as operating cash flow less capital expenditures 4. Rule of defined as the sum of revenue growth and free cash flow margin PROJECT ORANGE PRELIMINARY AND CONFIDENTIAL DRAFT PRELIMINARY VALUATION PERSPECTIVES 20


Discounted Equity Value – Based on CY2025E Revenue (1)(2)(5) Street and Management Cases; Value at 12/31/2024 Discounted to 8/12/2022 $MM, Except Where Noted Street Case Management Case Street Case Management Case 2025E Revenue 569 697 2025E Multiple 8.0x 8.0x Implied Future AV $4,554 $5,578 (+) Proj. Cash 582 619 (-) Proj. Total Debt 0 0 Future Equity Value $5,137 $6,196 Current FDSO 185.1 185.1 (6) Annual Basic Share Increase 0.8% 1.0% Future FDSO 189.3 190.4 Future Price per Share $27.14 $32.55 Cost of Equity (Ke) 11.8% 11.8% Discount Period (Years) 2.39 2.39 Price Per Share NPV $20.79 $24.94 Implied Fully-Diluted Future Discounted Fully-Diluted (3)(4) Share Price (at Dec 2024) Future Share Price 3 Month Performance Street Case Management Case Street Case Management Case 12 Month Performance Historical NTM CY2025E Revenue, Margin AV / NTM Multiple AV / Revenue Multiple $569 $697 16% 26% 15% 6.0x $21.15 $25.26 $16.20 $19.35 4% 45% 7.0x $24.14 $28.90 $18.50 $22.14 13% 35% Current 8.0x $27.14 $32.55 $20.79 $24.94 10% NTM 5% 9.0x $30.13 $36.20 $23.08 $27.73 Multiple 6% 8.8x Discounted 2.4 0% @$20.21 10.0x $33.12 $39.85 $25.37 $30.53 4% Years at 11.8% Cost of Equity 0% 11.0x $36.11 $43.49 $27.67 $33.32 14% 0% 12.0x $39.10 $47.14 $29.96 $36.11 9% 0% 13.0x $42.10 $50.79 $32.25 $38.91 18% 0% 14.0x $45.09 $54.44 $34.54 $41.70 23% Notes: 4. Cost of equity of 11.8% based on 1.50 Barra predicted beta, 2.8% risk-free rate and 6.0% market risk premium 1. Market data and consensus as of 8/12/2022 5. Current FDSO based on implied share price; represents annualized increase in basic shares through 12/31/2023 2. Management reflects forecast provided by Management on 8/12/2022 6. Share creep calculated based on projected cumulative SBC divided by current share price to determine CAGR over the period 3. Assumes future cash balance as of 12/31/2024 of $582MM in Street Case and $619MM in Management Case 2022 to 2025 PROJECT ORANGE PRELIMINARY AND CONFIDENTIAL DRAFT PRELIMINARY VALUATION PERSPECTIVES 21


Discounted Equity Value – Based on CY2025E LFCF (1)(2)(4) Street and Management Cases; Value at 12/31/2024 Discounted to 8/12/2022 $MM, Except Where Noted Street Case Management Case Street Case Management Case 2025E Revenue 569 697 2025E FCF 137 208 2025E FCF Margin 24.0% 29.8% 2025E Multiple 35.0x 35.0x Implied Future EV $4,787 $7,284 Current FDSO 185.0 185.1 (5) Annual Basic Share Increase 0.8% 1.0% Future FDSO 189.2 190.5 Future Price per Share $25.30 $38.24 Cost of Equity (Ke) 11.8% 11.8% Discount Period (Years) 2.39 2.39 Price Per Share NPV $19.38 $29.30 Implied Fully-Diluted Future Discounted Fully-Diluted (3) Share Price (at Dec 2024) Future Share Price Street Case Management Case Street Case Management Case CY2025E LFCF, Margin P / NTM Multiple $137 $208 24% 30% 30.0x $21.71 $32.80 $16.63 $25.13 35.0x $25.30 $38.24 $19.38 $29.30 Current Discounted 2.4 NTM Years at 11.8% Cost Multiple of Equity 37.5x 40.0x $28.89 $43.69 $22.14 $33.47 @$20.21 45.0x $32.49 $49.13 $24.89 $37.64 Notes: 4. Current FDSO based on implied share price; represents annualized increase in basic shares through 12/31/2023 1. Market data and consensus as of 8/12/2022 5. Share creep calculated based on projected cumulative SBC divided by current share price to determine CAGR over the period 2. Management reflects forecast provided by Management on 8/12/2022 2022 to 2025 3. Cost of equity of 11.8% based on 1.50 Barra predicted beta, 2.8% risk-free rate and 6.0% market risk premium PROJECT ORANGE PRELIMINARY AND CONFIDENTIAL DRAFT PRELIMINARY VALUATION PERSPECTIVES 22


Precedent Software Transaction Multiples Selected Software Transactions NTM Aggregate Value / Revenue Highest Multiple Strategic Select Sponsor Software and Strategic Deals Software Deals 44.9 ~36.7 35.0x+ 25.7 24.9 Orange $20.21/share: 8.8x 16.5 15.7 15.7 13.7 13.6 13.2 11.0 11.0 10.8 10.3 9.3 9.2 9.1 9.0 Median 7.7x 8.3 8.2 8.2 8.0 7.8 7.8 7.6 7.3 7.0 6.8 6.8 6.6 6.6 6.4 5.9 5.3 5.3 5.1 4.9 4.8 4.7 4.6 4.2 4.1 3.8 3.7 3.6 3.4 3.3 3.2 Year 20 21 21 20 18 18 18 17 22 22 18 19 21 14 21 21 16 22 18 19 20 19 20 15 22 21 18 19 18 19 16 16 16 21 21 19 20 17 18 22 18 15 17 17 16 19 16 16 NTM Rev 59% N.A. 20% 33% 30% 39% 25% 31% 16% 18% 24% 38% 20% 23% 10% 8% 21% 16% 14% 14% 12% 14% 18% 19% 19% 15% 16% 3% 24% 16% 16% 28% 28% 8% 10% 7% 4% 16% 4% 26% 7% 8% N.A. 17% 3% 4% 1% 12% Growth Sponsor Deals Strategic Deals Source: Morgan Stanley Database, Capital IQ, Thomson Consensus, Company Filings, Public Information Notes: 1. Twilio / SendGrid multiple as of closing date PROJECT ORANGE PRELIMINARY AND CONFIDENTIAL DRAFT PRELIMINARY VALUATION PERSPECTIVES 23


Precedent Technology M&A Premia (1) $1Bn+ Aggregate Value Software Transactions Since 2014 # of Deals = 71 Unaffected Spot Premium % # of deals 20 Median: 30% 17 15 11 8 < 20% 20% - 30% 30% - 40% 40% - 50% 50%+ % Premium % Distribution 28% 24% 21% 11% 15% Unaffected 30-Day Average % 19 Median: 35% # of deals 14 13 13 12 < 20% 20% - 30% 30% - 40% 40% - 50% 50%+ % Premium 18% 27% 20% 17% 18% % Distribution Notes: 1. Transaction data as of August 2022; excludes withdrawn deals PROJECT ORANGE PRELIMINARY AND CONFIDENTIAL DRAFT PRELIMINARY VALUATION PERSPECTIVES 24


Initial Market Pull-back Set Off Wave of Sponsor M&A Activity Deal Size ($Bn) $11.2 $6.4 $16.5 $10.4 $6.8 $10.2 $2.8 $8.2 Date 4/26/2021 7/26/2021 1/31/2022 3/20/2022 4/11/2022 6/24/2022 8/3/2022 8/8/2022 Consideration 100% Cash 100% Cash 100% Cash 100% Cash 100% Cash 100% Cash 100% Cash 100% Cash Activist Involvement ����✓✓��✓���� Premium to 34% 20% 24% 31% 32% 34% 63% 27% Unaffected NTM Revenue 10% 20% 3% 16% 18% 26% 19% 16% Growth NTM LFCF Margin 17% (8%) 21% 2% 1% 12% (1%) 1% (1) Rule of 40 28% 12% 24% 18% 19% 38% 18% 17% NTM Purchase Rev 9.3x 10.8x 5.1x 13.5x 13.2x 4.6x 7.6x 9.0x Multiple Source: CapIQ, DealPoint Data Notes: 1. Rule of 40 based on NTM Revenue Growth + NTM FCF Margin PROJECT ORANGE PRELIMINARY AND CONFIDENTIAL DRAFT PRELIMINARY VALUATION PERSPECTIVES 25


Broker Estimates for Orange (1) Select Analyst Estimates and Targets $MM, except per share data Following Q2’22 Earnings Announcement, broker price targets range decreased from $19-$29 Revenue Gross Margin Adj. EBITDA Free Cash Flow Current Price Target Valuation Broker Date of Report Rating Price Target Methodology Methodology CY22E CY23E CY24E CY22E CY23E CY24E CY22E CY23E CY24E CY22E CY23E CY24E ~12x CY2023E AV / Cowen Cowen 8/4/2022 Outperform 28.00 AV / FCF $335 $415 - 87% 87% - - - - $87 $123 - Revenue DCF (20x CY2032 Truist Truist 8/4/2022 Buy 28.00 AV / FCF, DCF $334 $424 - 86% 85% - $54 $59 - $81 $98 - FCF TV) DCF (25x CY2026E Piper Sandler Piper Sandler 8/4/2022 Overweight 25.00 AV / FCF, DCF $334 $421 - 87% 85% - - - - $83 $114 - FCF) ~40x CY2023E AV / AV / Revenue, Canaccord Canaccord 8/4/2022 Buy 25.00 $334 $421 - 87% 87% - - - - $80 $105 - FCF AV / FCF - 10x CY2023E AV / Stephens Stephens 8/4/2022 Overweight 25.00 AV / Revenue $334 $422 $515 88% 87% 87% $53 $72 $98 $81 $114 - Revenue 9.7x AV / CY2023E Needham Needham 8/4/2022 Buy 24.00 AV / Revenue $334 $415 $507 87% 87% 87% - - - $80 $107 $133 Revenue 85% 7.5x AV / Goldman Sachs GS 8/4/2022 Buy 22.00 Revenue; 15% AV / Revenue $332 $412 $492 86% 85% 85% $46 $65 $90 $64 $106 $146 Strategic Ppaids 25x CY2027E Morgan Stanley MS 8/4/2022 Equal Weight 21.00 AV / FCF $333 $413 $502 86% 86% 87% $46 $60 $93 $85 $84 $115 AV/FCF 7x CY2023E AV / Bank of America BofA 8/4/2022 Buy 20.00 AV / Revenue $334 $420 $521 87% 85% 85% $57 $72 $97 $79 $98 $110 Revenue 8.0x CY2023E AV / Citi Citi 8/5/2022 Neutral 20.00 AV / Revenue $334 $394 $484 83% 78% 78% $52 $63 $79 $84 $98 $126 Revenue 8.0x CY2023E AV / UBS UBS 8/4/2022 Neutral 19.00 AV / Revenue $333 $407 $475 87% 87% 88% $60 $75 $89 $82 $95 $109 Revenue Mean $23.36 $334 $415 $499 87% 85% 85% $53 $66 $91 $81 $104 $123 Median $24.00 $334 $415 $502 87% 86% 87% $53 $65 $92 $81 $105 $121 Post earnings, median CY22 revenue estimates increased from $332; CY23 estimates Notes: decreased from $417 1. Latest available broker estimates, excludes Berenberg due to price target as of 2/17/2022 PROJECT ORANGE PRELIMINARY AND CONFIDENTIAL DRAFT PRELIMINARY VALUATION PERSPECTIVES 26


APPENDIX Reference Materials PRELIMINARY AND CONFIDENTIAL DRAFT 27


Adjusted EBITDA to Free Cash Flow Reconciliation Historicals CY2019A $MM Change in NWC 55 5 (11) (10) (4) (8) 30 (11) 19 1 1 Adj. EBITDA Interest and Deferred AR Deferred Prepaid and AP and Other Capitalized Cash Flow From PP&E and Free Cash Flow Taxes Revenue Commissions Other Assets Liabilities Content and Operating Capitalized Other Activities Software Margin / Impact to Margin (%) 1% 1% 46% (9%) (8%) (3%) 4% (6%) 25% (9%) 16% CY2020A Change in NWC $MM 47 2 1 (7) (8) (5) (8) 45 37 (1) 16 Adj. EBITDA Interest and Deferred AR Deferred Prepaid and AP and Other Capitalized Cash Flow From PP&E and Free Cash Flow Taxes Revenue Commissions Other Assets Liabilities Content and Operating Capitalized Other Activities Software Margin / Impact to Margin (%) 9% (1%) 27% (4%) (5%) 0% 1% (3%) 26% (5%) 21% CY2021A Change in NWC $MM 77 9 (14) (15) (6) (10) (6) 77 71 (5) 42 Adj. EBITDA Interest and Deferred AR Deferred Prepaid and AP and Other Capitalized Cash Flow From PP&E and Free Cash Flow Taxes Revenue Commissions Other Assets Liabilities Content and Operating Capitalized Other Activities Software Margin / Impact to Margin (%) 17% (2%) 31% (6%) (6%) (3%) 4% (4%) 31% (2%) 29% Note: Change in deferred commissions net of deferred commissions amortization to reflect broker treatment of projections PROJECT ORANGE PRELIMINARY AND CONFIDENTIAL DRAFT REFERENCE MATERIALS 28


Adjusted EBITDA to Free Cash Flow Reconciliation Management Forecast CY2022E $MM Change in NWC 99 9 (15) (7) (21) (10) (11) 2 92 (3) 103 49 Adj. EBITDA Interest and Capitalized Deferred AR Deferred Prepaid and AP and Other Capitalized Cash Flow PP&E and Free Cash Taxes Stock-Based Revenue Commissions Other Assets Liabilities Content and From Capitalized Flow Comp Other Operating Software Activities Margin / Impact to Margin (%) 15% (1%) 1% 29% (4%) (6%) 3% (2%) (3%) 30% (3%) 27% CY2023E Change in NWC $MM 99 (10) (1) 6 (11) (30) (14) 3 (10) 107 122 76 Adj. EBITDA Interest and Capitalized Deferred AR Deferred Prepaid and AP and Other Capitalized Cash Flow PP&E and Free Cash Taxes Stock-Based Revenue Commissions Other Assets Liabilities Content and From Capitalized Flow Comp Other Operating Software Activities Margin / Impact to Margin (%) 22% (3%) 1% 29% (3%) (9%) (0%) 2% (3%) 36% (4%) 32% CY2024E Change in NWC $MM 118 (15) (1) 1 (35) (11) (10) 2 (30) 151 132 161 Adj. EBITDA Interest and Capitalized Deferred AR Deferred Prepaid and AP and Other Capitalized Cash Flow PP&E and Free Cash Taxes Stock-Based Revenue Commissions Other Assets Liabilities Content and From Capitalized Flow Comp Other Operating Software Margin / Impact to Margin (%) Activities 39% (9%) 1% 35% (4%) (10%) (0%) 0% (3%) 48% (3%) 45% Notes: Change in deferred commissions net of deferred commissions amortization to reflect broker treatment of projections PROJECT ORANGE PRELIMINARY AND CONFIDENTIAL DRAFT REFERENCE MATERIALS 29


Weekly Movement in Orange Stock Price Since Market Peak Weekly Share Price Change since Week of 11/1/2022 Count of Weekly Change Since the Week Beginning 11/1/22 # 16 12 8 4 1 <2.5% 2.5% - 5.0% 5.0% - 7.5% 7.5% - 10.0% >10.0% Source: Capital IQ Notes: 1. Market data as of 8/12/2022 2. Weekly change calculated as absolute difference in closing share price on Friday of respective week relative to closing share price on Friday of prior week PROJECT ORANGE PRELIMINARY AND CONFIDENTIAL DRAFT REFERENCE MATERIALS 30


(1) Orange Comparable Company Operational Benchmarking CY2022E (2) (3) CY2022E Revenue Growth (%) CY2022E Adj. EBITDA Margin (%) CY2022E Free Cash Flow Margin (%) CY2022E Rule of (%) 36 15 28 64 Management Management Management Management 35 60 16 25 Street Street Street Street 44 43 35 80 ZoomInfo ZoomInfo ZoomInfo ZoomInfo 42 20 26 56 Asana Atlassian Atlassian Atlassian 37 20 19 45 Smartsheet DocuSign DocuSign Jamf 35 18 15 44 Sprout Social Jamf Jamf Hubspot 31 12 14 39 Atlassian Hubspot Hubspot Smartsheet 30 (1) 3 38 Hubspot PagerDuty Sprout Social Sprout Social 30 (3) 2 36 PagerDuty Sprout Social PagerDuty DocuSign 30 1 32 (7) Jamf Smartsheet Smartsheet PagerDuty 17 (48) 11 (31) DocuSign Asana Asana Asana 37 52 83 41 Crowdstrike Qualys Qualys Crowdstrike 48 18 31 69 Zscaler Crowdstrike Crowdstrike Zscaler 40 14 21 56 Okta Zscaler Zscaler Qualys 28 9 16 43 Rapid7 Tenable Tenable Okta 25 7 7 41 Tenable Rapid7 Rapid7 Tenable 18 4 (5) 36 Qualys Okta Okta Rapid7 Source: Capital IQ, Thomson Consensus, Company Management Notes: 1. Market data and consensus estimates as of 8/12/2022 Orange Estimates High Growth Software High Growth Security 2. Management reflects forecast provided by Management on 8/12/2022 3. Free cash flow calculated as operating cash flow less capital expenditures 4. Rule of defined as the sum of revenue growth and free cash flow margin PROJECT ORANGE PRELIMINARY AND CONFIDENTIAL DRAFT REFERENCE MATERIALS 31


Illustrative Discounted Equity Value Over Time Street Case; Discounted to 8/12/2022 Future Share Price Discounted Future Share Price $ per Share $ per Share $40.00 $40.00 $35.00 $35.00 $33.12 $28.56 $30.00 $30.00 $25.37 $24.47 $24.24 $27.14 $25.00 $25.00 $23.21 $21.90 $21.90 $23.37 $20.00 $20.00 $21.15 $20.79 $20.21 $20.21 $20.02 $19.80 $18.96 $18.17 $17.89 $17.89 $15.00 $15.00 $16.20 $15.57 $15.36 $14.71 $13.88 $13.88 $10.00 $10.00 $5.00 $5.00 $0.00 $0.00 Current Dec-22 Dec-23 Dec-24 Current Dec-22 Dec-23 Dec-24 Net Cash ($MM) $315 $357 $461 $582 Net Cash ($MM) $315 $357 $461 $582 Notes: 1. Market data and consensus as of 8/12/2022 6.0x NTM Revenue Current Share Price 8.0x NTM Revenue 10.0x NTM Revenue 2. Cost of equity of 11.8% based on 1.50 Barra predicted beta, 2.8% risk-free rate and 6.0% market risk premium 3. Current FDSO based on implied share price; represents annualized increase in basic shares through 12/31/2024 PROJECT ORANGE PRELIMINARY AND CONFIDENTIAL DRAFT REFERENCE MATERIALS 32


Illustrative Discounted Equity Value Over Time Management Case; Discounted to 8/12/2022 Future Share Price Discounted Future Share Price $ per Share $ per Share $40.00 $39.85 $40.00 $35.00 $35.00 $31.97 $30.53 $32.55 $30.00 $30.00 $27.39 $25.59 $24.51 $25.00 $25.00 $22.63 $22.63 $26.10 $25.26 $24.94 $20.21 $20.21 $22.36 $20.00 $20.00 $20.88 $20.23 $20.00 $19.35 $18.47 $18.47 $17.33 $15.00 $15.00 $16.18 $15.50 $14.31 $14.31 $10.00 $10.00 $5.00 $5.00 $0.00 $0.00 Current Dec-22 Dec-23 Dec-24 Current Dec-22 Dec-23 Dec-24 Net Cash ($MM) $315 $360 $467 $619 Net Cash ($MM) $315 $360 $467 $619 Notes: 1. Market data and consensus as of 8/12/2022 6.0x NTM Revenue Current Share Price 8.0x NTM Revenue 10.0x NTM Revenue 2. Management reflects forecast provided by Management on 8/12/2022 3. Cost of equity of 11.8% based on 1.50 Barra predicted beta, 2.8% risk-free rate and 6.0% market risk premium 4. Current FDSO based on implied share price; represents annualized increase in basic shares through 12/31/2024 PROJECT ORANGE PRELIMINARY AND CONFIDENTIAL DRAFT REFERENCE MATERIALS 33


Research Perspectives On Orange (1) (1) Target Price Summary Orange Analyst Perspectives Price Per Share ($) % / Price Per Share ($) Median target price 18.8% above share price Current Premium / Aug-21 Sep-21 Oct-21 Nov-21 Dec-21 Jan-22 Feb-22 Mar-22 Apr-22 May-22 Jun-22 Jul-22 Aug-22 100% $40 Price (Discount) 17% 17% 17% 18% 18% 18% 18% 18% 18% 20% 30% 30% Analyst Target to Current 80% $32 $28.00 39% Broker 1 Broker 2 $28.00 39% 60% $24 Broker 3 $25.00 24% Broker 4 $25.00 24% 83% 83% 83% 82% 82% 82% 82% 82% 82% 40% 80% $16 70% 70% Broker 5 $25.00 24% $24.00 19% Broker 6 20% $8 Broker 7 $22.00 9% Broker 8 $21.00 4% 0% $0 Sep-21 Oct-21 Nov-21 Dec-21 Jan-22 Feb-22 Mar-22 Apr-22 May-22 Jun-22 Jul-22 Aug-22 Broker 9 $20.00 -1% Broker 10 $20.00 -1% Buy Hold Sell Median Target Price Share Price $19.00 -6% Broker 11 Mean $23.36 16% Positives Considerations Median $24.00 19% Current Price $20.21 • “Pipeline remains strong, with no signs of slowdown or • “Company sounded more bullish on 2H expectations - sales cycle elongation, and believe the business focus indicating they’re not incorporating much conservatism has an inherent resiliency to economic cycles, helping beyond typical levels into guidance. This admission (1)(2) enterprises reduce costly malicious attacks.” likely leaves investors uneasy given Orange’s 88% Valuation Methodology SMB exposure and risk of seat churn, however the • “Orange is offering a security tool that prevents social % Methodology Competitive company is not yet seeing any negative trends around engineering attacks, which is how the vast majority of Positioning retention rates and deserves credit for consistent Macroeconomic DCF breaches are accomplished. And as companies in this execution” Impacts 10% predominantly greenfield market become more AV / Revenue informed about security at the human layer, we think • “Risk to per seat model if unemployment levels begin 50% Orange's category leadership positions it for solid to tick up – Company noted that headcount reductions demand” have been concentrated in start-ups / high tech areas and are not happening economy-wide. Orange • “Orange checked all the key boxes with its second experienced this in COVID and bounced back, but this quarter print – customer adds were healthy (including is currently not happening” the largest deal in company history), international continues to increase as a percent of the mix, multi- product customers are growing quickly, and the firm Platform had a strong cash flow quarter and increased its • “The company has struggled to keep pace with growth Expansion margin guide for the year” International • investments in the [international] region, particularly as FCF Multiple Expansion • hiring has seen challenges and delays” • “International markets have been a key growth pillar 40% for the company the last year and a half, growing north of 50% in 2Q22 (17.4% of total revenue)” • d Notes: 1. Market data and consensus estimates as of 8/12/2022 per Capital IQ 2. Reflects disclosed valuation methodologies for available research analysts PROJECT ORANGE PRELIMINARY AND CONFIDENTIAL DRAFT REFERENCE MATERIALS 34


Consistent Beat and Raise (1) Performance vs. Street Estimates Since IPO $MM Q1 FY2021 Q2 FY2021 Q3 FY2021 Q4 FY2021 Q1 FY2022 Q2 FY2022 Q3 FY2022 Revenue Prior Consensus 54.2 59.0 64.7 69.4 79.0 85.4 Guidance 56.0 61.0 67.0 72.5 79.0 85.5 Guidance vs. Prior Consensus +3.4% +3.4% +3.6% +4.5% +0.1% +0.1% Street Consensus 51.0 56.3 61.5 67.1 73.0 79.5 Actual Results 53.6 59.4 64.1 69.3 75.0 80.8 Actual vs. Consensus +4.9% +5.4% +4.3% +3.3% +2.8% +1.6% Non-GAAP Operating Income Street Consensus (1.0) (3.0) 1.1 2.6 5.6 5.1 Actual Results 5.9 4.5 3.0 15.1 9.0 11.0 Actual vs. Consensus N.M. N.M. +180.0% +476.4% +62.1% +116.1% (2) FCF Street Consensus 2.8 0.5 7.3 5.3 8.9 12.8 Actual Results 21.3 13.5 18.8 20.2 24.1 20.7 Actual vs. Consensus +660.9% +2464.4% +157.1% +278.5% +170.4% +61.2% Source: Capital IQ, Thomson Estimates Notes: 1. Thomson estimates as of 8/12/2022 2. FCF defined as Operating Cash Flow less CapEx PROJECT ORANGE PRELIMINARY AND CONFIDENTIAL DRAFT REFERENCE MATERIALS 35


Preliminary Orange Financial Summary Street Case (1) Street Case Selected Financial Data $MM CY19A CY20A CY21A CY22E CY23E CY24E Income Statement Revenue 121 175 246 334 415 490 % Revenue Growth 45% 41% 35% 25% 18% (2) Adj. EBITDA 1 16 42 53 66 89 Margin % 1% 9% 17% 16% 16% 18% (2) Adj. EBIT (7) 4 29 36 46 66 Margin % (6%) 2% 12% 11% 11% 14% Cash Flow Items Depreciation & Amortization 8 12 14 17 21 23 Capitalized Content Costs (6) (5) (7) (10) (10) (8) Stock-Based Compensation 118 5 18 25 30 33 Change in NWC 35 35 50 48 60 58 Capital Expenditures (11) (8) (6) (7) (9) (11) Cash Taxes 0 0 (3) (3) (4) (8) Unlevered Free Cash Flow 19 37 78 81 103 120 Notes: 1. Street Case per Capital IQ as of 8/12/2022 2. Adj. financials are unburdened by stock based compensation; non-GAAP financials conform to Orange Management non-GAAP reporting PROJECT ORANGE PRELIMINARY AND CONFIDENTIAL DRAFT REFERENCE MATERIALS 36


Preliminary Orange Financial Summary (Cont’d) Management Case (1) Management Case Selected Financial Data $MM CY19A CY20A CY21A CY22E CY23E CY24E CY25E Income Statement Revenue 121 175 246 336 440 555 697 % Revenue Growth 45% 41% 36% 31% 26% 26% (2) Adj. EBITDA 1 16 42 49 75 132 213 Margin % 1% 9% 17% 15% 17% 24% 31% (2) Adj. EBIT (7) 4 29 35 60 111 189 Margin % (6%) 2% 12% 10% 14% 20% 27% Cash Flow Items Depreciation & Amortization 8 12 14 14 16 21 25 Capitalized Content Costs (6) (5) (7) (10) (11) (9) (7) Stock-Based Compensation 118 5 18 26 39 42 42 Capitalized SBC 0 0 0 2 3 2 2 Change in NWC 35 35 50 64 65 69 63 Capital Expenditures (11) (8) (6) (11) (14) (10) (13) Cash Taxes 0 0 (1) (1) (5) (25) (44) Unlevered Free Cash Flow 19 37 79 92 109 158 213 Notes: 1. Illustrative case based reflecting forecast provided by Orange Management on 8/12/2022 2. Adj. financials are unburdened by stock based compensation; non-GAAP financials conform to Orange Management non-GAAP reporting PROJECT ORANGE PRELIMINARY AND CONFIDENTIAL DRAFT REFERENCE MATERIALS 37


Orange Capitalization Summary and Aggregate Value Build (1)(2)(3) $MM, Except Where Noted Current Spot Current Share Price ($) $20.21 Basic Total Shares Outstanding (#MM) 175.7 Shares Weighted Avg Diluted Shares Outstanding Dilutive Instruments (#MM) Strike Price ($) (#MM) RSUs Outstanding 2.79 0.00 2.79 Options Outstanding 8.04 $3.25 6.75 Total 9.54 Debt Amount Total Debt - Fully Diluted Shares Outstanding (#MM) 185.2 Fully Diluted Equity Value $3,744 (+) Debt Principal - (-) Cash ($315) Fully Diluted Aggregate Value $3,428 Notes: 1. Market data as of 8/12/2022 2. Debt balance, options, and RSUs as of 6/30/2022 3. Assumes $315MM Cash and 175.7MM basic shares outstanding as of 6/30/2022 per 10Q PROJECT ORANGE PRELIMINARY AND CONFIDENTIAL DRAFT REFERENCE MATERIALS 38


Shareholder Analysis Shares in MM, as of 4/6/2022 Less Class A Class B Total Basic Adjusted Shareholder Common Common % Total Total Votes % Total Affiliated % Total Shares Votes Stock Stock Elephant - 37.1 37.1 21.2% 370.7 33.9% (37.1) - -% KKR - 26.1 26.1 14.9% 261.2 23.9% (26.1) - -% Vista 1.9 14.6 16.4 9.4% 147.5 13.5% (16.4) - -% Goldman Sachs - 9.2 9.2 5.2% 91.7 8.4% - 91.7 34.2% Kevin Mitnick 2.5 6.9 9.4 5.4% 71.5 6.5% - 71.5 26.7% Stu Sjouwerman 0.1 4.4 4.5 2.6% 43.9 4.0% (4.5) - -% Krish Venkataraman 0.2 1.6 1.8 1.1% 16.3 1.5% - 16.3 6.1% Lars Letonoff 0.6 - 0.6 0.3% 0.6 0.1% (0.6) - -% Kevin Klausmeyer - 0.5 0.5 0.3% 4.7 0.4% - 4.7 1.7% Gerhard Watzinger - 0.7 0.7 0.4% 7.0 0.6% - 7.0 2.6% Kara Wilson - 0.7 0.7 0.4% 7.0 0.6% - 7.0 2.6% Other Common Shareholders 67.5 0.3 67.7 38.8% 70.1 6.4% - 70.1 26.1% Totals 72.8 101.9 174.7 100.0% 1,092.0 100.0% 268.2 100.0% Notes: 1. Share counts as of 4/6/2022 Proxy, total share count does not tie to detailed Aggregate Value build as those chare counts are as of the 2Q22 filing and detailing sharecount ownership is not provided PROJECT ORANGE PRELIMINARY AND CONFIDENTIAL DRAFT REFERENCE MATERIALS 39


WACC Calculation (1)(2) (1) Predicted Beta Orange WACC Analysis 1.6 WACC Calculation 1.5 Low Base High Market Risk Premium 6.0% 6.0% 6.0% 1.4 (2) Barra Predicted Beta 1.50 1.50 1.50 1.3 Risk Free Rate - 10-Year Spot as of 08/12/22 2.8% 2.8% 2.8% 1.2 1.1 Sensitivity Adjustment (1.0%) 0.0% 1.0% 1 Cost of Equity 10.8% 11.8% 12.8% Equity / Total Capitalization 100.0% 100.0% 100.0% Pre-Tax Cost of Debt - - - Tax Rate 25% 25% 25% After-Tax Cost of Debt - - - Total Debt / Total Capitalization - - - WACC 10.8% 11.8% 12.8% Notes: 1. Market data as of 8/12/2022 2. Barra Beta per Capital IQ as of 8/12/2022 PROJECT ORANGE PRELIMINARY AND CONFIDENTIAL DRAFT REFERENCE MATERIALS 40 Apr-21 Jun-21 Aug-21 Oct-21 Dec-21 Feb-22 Apr-22 Jun-22 Aug-22


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Exhibit (c)(v)


Agenda Process Update 1 Valuation Considerations 2 Next Steps 3 PROJECT ORANGE PRELIMINARY AND CONFIDENTIAL DRAFT 2


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2 Discounted Equity Value – Based on CY2025E LFCF (1)(2)(4) Street and Management Cases; Value at 12/31/2024 Discounted to 9/12/2022 $MM, Except Where Noted Street Case Management Case Street Case Management Case 2025E Revenue 585 697 2025E FCF 143 208 2025E FCF Margin 24.4% 29.8% 2025E Multiple 35.0x 35.0x Implied Future EV $5,002 $7,284 Current FDSO 185.0 185.1 (5) Annual Basic Share Increase 0 8% 1.0% Future FDSO 189.4 190.7 Future Price per Share $26.40 $38.20 Cost of Equity (Ke) 12.3% 12.3% Discount Period (Years) 2 30 2.30 Price Per Share NPV $20.22 $29.26 Implied Fully-Diluted Future Discounted Fully-Diluted (3) Share Price (at Dec 2024) Future Share Price Street Case Management Case Street Case Management Case CY2025E LFCF, Margin P / NTM Multiple $143 $208 24% 30% 30.0x $22.65 $32.77 $17.35 $25.09 35.0x $26.40 $38.20 $20.22 $29.26 Current Discounted 2.3 Years at 12.3% Cost NTM of Equity Multiple 39.2x 40.0x $30.15 $43.64 $23.09 $33.42 @$19.41 45.0x $33.91 $49.08 $25.97 $37.59 Notes 4. Current FDSO based on implied share price; represents annualized increase in basic shares through 12/31/2023 1. Market data and consensus as of 9/12/2022 5. Share creep calculated based on projected cumulative SBC divided by current share price to determine CAGR over the period 2. Management reflects forecast provided by Management on 8/12/2022 2022 to 2025 3. Cost of equity of 12.3% based on 1.49 Barra predicted beta, 3.4% risk-free rate and 6.0% market risk premium PROJECT ORANGE PRELIMINARY AND CONFIDENTIAL DRAFT 10


2 Long Term Orange Financial Profile (1)(2) $MM, unless otherwise noted Extrapolations reviewed and approved by management Terminal CY19A CY20A CY21A CY22E CY23E CY24E CY25E CY26E CY27E CY28E CY29E CY30E CY31E CY32E Year Select DCF Input Financials Revenue 121 175 246 336 440 555 697 854 1,020 1,186 1,344 1,480 1,585 1,649 1,706 % Revenue Growth 45% 41% 36% 31% 26% 26% 22% 19% 16% 13% 10% 7% 4% 3% Adj. EBITDA 1 16 42 49 75 132 213 282 360 447 537 612 676 725 751 Margin % 1% 9% 17% 15% 17% 24% 31% 33% 35% 38% 40% 41% 43% 44% 44% D & A 8 12 14 14 16 21 25 26 31 36 40 44 48 49 51 % of Revenue 7% 7% 6% 4% 4% 4% 4% 3% 3% 3% 3% 3% 3% 3% 3% CapEx + Capitalized Content (17) (13) (12) (21) (25) (18) (20) (26) (31) (36) (40) (44) (48) (49) (51) % of Revenue 14% 8% 5% 6% 6% 3% 3% 3% 3% 3% 3% 3% 3% 3% 3% SBC (118) (5) (18) (26) (39) (42) (42) (43) (51) (59) (67) (74) (79) (82) (85) % of Revenue 98% 3% 8% 8% 9% 8% 6% 5% 5% 5% 5% 5% 5% 5% 5% Cash Taxes 0 0 (1) (1) (5) (25) (44) (53) (70) (88) (107) (123) (137) (148) (154) Rate % 5% 54% 8% 8% 25% 36% 30% 25% 25% 25% 25% 25% 25% 25% 25% Change in NWC 35 35 50 64 65 69 63 78 83 83 79 68 52 32 29 % Change in Revenue 64% 71% 72% 62% 60% 44% 50% 50% 50% 50% 50% 50% 50% 50% uFCF (99) 32 61 66 71 116 171 238 292 347 401 438 465 477 490 % of Revenue (82%) 18% 25% 20% 16% 21% 24% 28% 29% 29% 30% 30% 29% 29% 29% EBITDA % - uFCF % 83% (9%) (8%) (5%) 1% 3% 6% 5% 7% 8% 10% 12% 13% 15% 15% Notes 1. Management case through to FY2025 reflects forecasts provided by Management on 8/12/2022 2. Extrapolations were reviewed and approved by Management on 9/1/2022 PROJECT ORANGE PRELIMINARY AND CONFIDENTIAL DRAFT 11


2 Discounted Cash Flow Analysis Preliminary Discounted Cash Flow Analysis $MM Discounted Cash Flow Analysis Perpetuity Growth Rate 3.0% 3.5% 4.0% Discount Rate 13.3% 12.3% 11.3% 13.3% 12.3% 11.3% 13.3% 12.3% 11.3% Implied Valuation NPV of UFCF 1,440 1,513 1,590 1,440 1,513 1,590 1,440 1,513 1,590 FV of Terminal Value 4,904 5,432 6,088 5,179 5,769 6,510 5,485 6,147 6,991 PV of Terminal Value 1,500 1,807 2,205 1,584 1,919 2,358 1,677 2,045 2,532 Aggregate Value 2,940 3,320 3,795 3,024 3,432 3,948 3,117 3,557 4,122 Net Cash 315 315 315 315 315 315 315 315 315 Equity Value 3,255 3,635 4,111 3,339 3,747 4,264 3,433 3,873 4,438 FDSO 185.0 185.2 185.3 185.1 185.2 185.4 185.1 185.3 185.4 Price / Share $17.59 $19.63 $22.18 $18.04 $20.23 $23.00 $18.54 $20.90 $23.93 % Premium / (Discount) to Current (9%) 1% 14% (7%) 4% 18% (4%) 8% 23% % of Aggregate Value UFCF 49% 46% 42% 48% 44% 40% 46% 43% 39% Terminal Value 51% 54% 58% 52% 56% 60% 54% 57% 61% Implied Terminal EBITDA Multiple 6.5x 7.2x 8.1x 6.9x 7.7x 8.7x 7.3x 8.2x 9.3x Implied Exit FCF Multiple (P/LFCF) 10.7x 11.7x 13.1x 11.2x 12.4x 13.9x 11.8x 13.2x 14.9x (2)(5) (2)(3) (4)(5) Share Price Sensitivity Implied Exit Multiples Revenue and FCF Sensitivity $/Share, Growth declines to 4% by 2032; EBITDA margin X, Growth declines to 4% by 2032; EBITDA margin $/Share, FY2032 Revenue Growth (linear decline from increases to 44% increases to 44%; Assumes 12.3% WACC FY2026) 2032 Revenue Growth Multiple WACC AV / Revenue AV / EBITDA P / FCF 2% 4% 8% 12% 16% 13.3% 12.8% 12.3% 11.8% 11.3% 2.5% 3.0x 6.8x 11.1x 34% $14.96 $15.77 $17.51 $19.46 $21.61 2.5% $17.18 $18.05 $19.09 $20.16 $21.45 39% $17.06 $18.00 $20.02 $22.27 $24.77 3.0% $17.59 $18.52 $19.63 $20.78 $22.18 3.0% 3.2x 7.2x 11.7x 3.5% $18.04 $19.04 $20.23 $21.48 $23.00 3.5% 3.4x 7.7x 12.4x 44% $19.17 $20.23 $22.53 $25.08 $27.92 4.0% $18.54 $19.61 $20.90 $22.27 $23.93 4.0% 3.6x 8.2x 13.2x 49% $21.28 $22.46 $25.03 $27.89 $31.07 4.5% $19.10 $20.26 $21.66 $23.16 $25.00 4.5% 3.9x 8.8x 14.1x 54% $23.38 $24.69 $27.54 $30.71 $34.22 Notes Range from Football Field (p. 7) 1. Management case through to FY2025 reflects forecasts provided by Management on 8/12/2022 2. Extrapolations were reviewed and approved by Management on 9/1/2022 3. Calculated as implied exited aggregate value divided by relevant perpetual operating metric 4. Table assumes 12 3% WACC and 3.5% PGR 5. FDSO based on basic share count and dilutive securities schedule per latest filing 6. CY2023E NPV of uFCF stubbed for mid-year PROJECT ORANGE PRELIMINARY AND CONFIDENTIAL DRAFT 12 PGR PGR Terminal EBITDA Margin





Morgan Stanley e Next Steps - Process *** • • 1. - 2 . • 1. 2. 3. PROJECT ORANGE PRELIMINARY AND CONFIDENTIAL DRAFT 16


3 Next Steps – Communications In Case of Proposal by • – *** – – • – – – – – – • – – PROJECT ORANGE PRELIMINARY AND CONFIDENTIAL DRAFT 17


***


3 Sponsor and Strategic Outreach Considerations *** Sponsors Strategics Tier 1A Tier 1 Tier 1B Tier 2 Tier 2 Outreach Has Occurred PROJECT ORANGE PRELIMINARY AND CONFIDENTIAL DRAFT 19


APPENDIX Reference Materials PRELIMINARY AND CONFIDENTIAL DRAFT 20







(1) Orange Comparable Company Operational Benchmarking CY2023E (2) (3) CY2023E Revenue Growth (%) CY2023E Adj. EBITDA Margin (%) CY2023E Free Cash Flow Margin (%) CY2023E Rule of (%) 56 17 25 31 Management Management Management Street 49 17 24 24 Street Street Street Management 68 44 37 31 ZoomInfo Sprout Social ZoomInfo ZoomInfo 48 22 19 30 Atlassian ZoomInfo Jamf Atlassian 40 20 18 30 Jamf Asana DocuSign DocuSign 38 29 19 18 Hubspot Smartsheet Atlassian Jamf 36 28 12 14 Sprout Social Atlassian Hubspot Hubspot 32 4 6 24 Smartsheet Hubspot PagerDuty PagerDuty 30 (0) 5 24 PagerDuty PagerDuty Sprout Social Sprout Social 4 29 23 (1) DocuSign Jamf Smartsheet Smartsheet 12 (32) (18) 11 Asana DocuSign Asana Asana 39 36 69 37 Crowdstrike Crowdstr ke Qualys Qualys 55 20 32 32 Zscaler Zscaler Crowdstrike Crowdstrike 53 16 23 29 Qualys Okta Zscaler Zscaler 38 21 12 17 Tenable Rapid7 Tenable Tenable 36 21 9 11 Okta Tenable Rapid7 Rapid7 17 7 32 0 Rapid7 Qualys Okta Okta Source: Capital IQ, Thomson Consensus, Company Management Notes 1. Market data and consensus estimates as of 9/12/2022 Orange Estimates High Growth Software High Growth Security 2. Management reflects forecast provided by Management on 8/12/2022 3. Free cash flow calculated as operating cash flow less capital expenditures 4. Rule of defined as the sum of revenue growth and free cash flow margin PROJECT ORANGE PRELIMINARY AND CONFIDENTIAL DRAFT REFERENCE MATERIALS 26


Broker Estimates for Orange (1) Select Analyst Estimates and Targets $MM, except per share data Following Q2’22 Earnings Announcement, broker price targets range decreased from $19-$29 Revenue Gross Margin Adj. EBITDA Free Cash Flow Current Price Target Valuation Broker Date of Report Rating Price Target Methodology Methodology CY22E CY23E CY24E CY22E CY23E CY24E CY22E CY23E CY24E CY22E CY23E CY24E ~12x CY2023E AV / Cowen Cowen 8/4/2022 Outperform 28.00 AV / FCF $335 $415 - 87% 87% - - - - $87 $123 - Revenue DCF (20x CY2032 Truist Truist 8/4/2022 Buy 28.00 AV / FCF, DCF $334 $424 - 86% 85% - $54 $59 - $81 $98 - FCF TV) DCF (25x CY2026E Piper Sandler Piper Sandler 8/4/2022 Overweight 25.00 AV / FCF, DCF $334 $421 - 87% 85% - - - - $83 $114 - FCF) ~40x CY2023E AV / AV / Revenue, Canaccord Canaccord 8/4/2022 Buy 25.00 $334 $421 - 87% 87% - - - - $80 $105 - FCF AV / FCF - 10x CY2023E AV / Stephens Stephens 8/4/2022 Overweight 25.00 AV / Revenue $334 $422 $515 88% 87% 87% $53 $72 $98 $81 $114 - Revenue 9.7x AV / CY2023E Needham Needham 8/4/2022 Buy 24.00 AV / Revenue $334 $415 $507 87% 87% 87% - - - $80 $107 $133 Revenue 85% 7.5x AV / Goldman Sachs GS 8/4/2022 Buy 22.00 Revenue; 15% AV / Revenue $332 $412 $492 86% 85% 85% $46 $65 $90 $64 $106 $146 Strategic Ppaids 25x CY2027E Morgan Stanley MS 8/4/2022 Equal Weight 21.00 AV / FCF $333 $413 $502 86% 86% 87% $46 $60 $93 $85 $84 $115 AV/FCF 7x CY2023E AV / Bank of America BofA 8/4/2022 Buy 20.00 AV / Revenue $334 $420 $521 87% 85% 85% $57 $72 $97 $79 $98 $110 Revenue 8.0x CY2023E AV / Citi Citi 8/5/2022 Neutral 20.00 AV / Revenue $334 $394 $484 83% 78% 78% $52 $63 $79 $84 $98 $126 Revenue 8.0x CY2023E AV / UBS UBS 8/4/2022 Neutral 19.00 AV / Revenue $333 $407 $475 87% 87% 88% $60 $75 $89 $82 $95 $109 Revenue Mean $23.36 $334 $415 $499 87% 85% 85% $53 $66 $91 $81 $104 $123 Median $24.00 $334 $415 $502 87% 86% 87% $53 $65 $92 $81 $105 $121 Post earnings, median CY22 revenue estimates increased from $332; CY23 estimates Notes decreased from $417 1. Latest available broker estimates, excludes Berenberg due to price target as of 2/17/2022 PROJECT ORANGE PRELIMINARY AND CONFIDENTIAL DRAFT REFERENCE MATERIALS 27


WACC Calculation (1)(2) (1) Predicted Beta Orange WACC Analysis 1.6 WACC Calculation 1.5 Low Base High 1.4 Market Risk Premium 6.0% 6.0% 6.0% (2) 1.3 Barra Predicted Beta 1.49 1.49 1.49 1.2 Risk Free Rate - 10-Year Spot as of 09/12/22 3.4% 3.4% 3.4% 1.1 Sensitivity Adjustment (1.0%) 0.0% 1.0% Cost of Equity 11.3% 12.3% 13.3% 1 Equity / Total Capitalization 100.0% 100.0% 100.0% Pre-Tax Cost of Debt - - - Tax Rate 25% 25% 25% After-Tax Cost of Debt - - - Total Debt / Total Capitalization - - - WACC 11.3% 12.3% 13.3% Notes 1. Market data as of 9/12/2022 2. Barra Beta per Capital IQ as of 9/12/2022 PROJECT ORANGE PRELIMINARY AND CONFIDENTIAL DRAFT REFERENCE MATERIALS 28 Apr-21 Jun-21 Aug-21 Oct-21 Dec-21 Feb-22 Apr-22 Jun-22 Sep-22


Orange Capitalization Summary and Aggregate Value Build (1)(2)(3) $MM, Except Where Noted Current Spot Current Share Price ($) $19.41 Basic Total Shares Outstanding (#MM) 175.7 Shares Weighted Avg Diluted Shares Outstanding Dilutive Instruments (#MM) Strike Price ($) (#MM) RSUs Outstanding 2.79 0.00 2.79 Options Outstanding 8.04 $3.25 6.69 Total 9.48 Debt Amount Total Debt - Fully Diluted Shares Outstanding (#MM) 185.2 Fully Diluted Equity Value $3,594 (+) Debt Principal - (-) Cash ($315) Fully Diluted Aggregate Value $3,279 Notes 1. Market data as of 9/12/2022 2. Debt balance, options, and RSUs as of 6/30/2022 3. Assumes $315MM Cash and 175.7MM basic shares outstanding as of 6/30/2022 per 10Q PROJECT ORANGE PRELIMINARY AND CONFIDENTIAL DRAFT REFERENCE MATERIALS 29


Legal Disclaimer We have prepared this document solely for informational purposes. You should not definitively rely upon it or use it to form the definitive basis for any decision, contract, commitment or action whatsoever, with respect to any proposed transaction or otherwise. You and your directors, officers, employees, agents and affiliates must hold this document and any oral information provided in connection with this document in strict confidence and may not communicate, reproduce, distr bute or disclose it to any other person, or refer to it publicly, in whole or in part at any time except with our prior written consent. If you are not the intended recipient of this document, please delete and destroy all copies immediately. We have prepared this document and the analyses contained in it based, in part, on certain assumptions and information obtained by us from the recipient, its directors, officers, employees, agents, affiliates and/or from other sources. Our use of such assumptions and information does not imply that we have independently verified or necessarily agree with any of such assumptions or information, and we have assumed and relied upon the accuracy and completeness of such assumptions and information for purposes of this document. Neither we nor any of our affiliates, or our or their respective officers, employees or agents, make any representation or warranty, express or implied, in relation to the accuracy or completeness of the information contained in this document or any oral information provided in connection herewith, or any data it generates and accept no responsibility, obligation or liability (whether direct or indirect, in contract, tort or otherwise) in relation to any of such information. We and our affiliates and our and their respective officers, employees and agents expressly disclaim any and all liability which may be based on this document and any errors therein or omissions therefrom. Neither we nor any of our affiliates, or our or their respective officers, employees or agents, make any representation or warranty, express or implied, that any transaction has been or may be effected on the terms or in the manner stated in this document, or as to the achievement or reasonableness of future projections, management targets, estimates, prospects or returns, if any. Any views or terms contained herein are preliminary only, and are based on financial, economic, market and other conditions prevailing as of the date of this document and are therefore subject to change. We undertake no obligation or responsibility to update any of the information contained in this document. Past performance does not guarantee or predict future performance. We have (i) assumed that any forecasted financial information contained herein reflects the best available estimates of future financial performance, and (ii) not made any independent valuation or appraisal of the assets or liabilities of any company involved in any proposed transaction, nor have we been furnished with any such valuations or appraisals. The purpose of this document is to provide the recipient with a preliminary valuation for discussion purposes in connection with a potential transaction. This document and the information contained herein do not constitute an offer to sell or the solicitation of an offer to buy any security, commodity or instrument or related derivative, nor do they constitute an offer or commitment to lend, syndicate or arrange a financing, underwrite or purchase or act as an agent or advisor or in any other capacity with respect to any transaction, or commit capital, or to participate in any trading strategies, and do not constitute legal, regulatory, accounting or tax advice to the recipient. We recommend that the recipient seek independent third party legal, regulatory, accounting and tax advice regarding the contents of this document. This document does not constitute and should not be considered as any form of financial opinion or recommendation by us or any of our affiliates. This document is not a research report and was not prepared by the research department of Morgan Stanley or any of its affiliates. Notwithstanding anything herein to the contrary, each recipient hereof (and their employees, representatives, and other agents) may disclose to any and all persons, without limitation of any kind from the commencement of discussions, the U.S. federal and state income tax treatment and tax structure of the proposed transaction and all materials of any kind (including opinions or other tax analyses) that are provided relating to the tax treatment and tax structure. For this purpose, tax structure is limited to facts relevant to the U.S. federal and state income tax treatment of the proposed transaction and does not include information relating to the identity of the parties, their affiliates, agents or advisors. This document is provided by Morgan Stanley & Co. LLC and/or certain of its affiliates or other applicable entities, which may include Morgan Stanley Realty Incorporated, Morgan Stanley Senior Funding, Inc., Morgan Stanley Bank, N.A., Morgan Stanley & Co. International plc, Morgan Stanley Securities Limited, Morgan Stanley Bank AG, Morgan Stanley MUFG Securities Co., Ltd., Mitsubishi UFJ Morgan Stanley Securities Co., Ltd., Morgan Stanley Asia Limited, Morgan Stanley Australia Securities Limited, Morgan Stanley Australia Limited, Morgan Stanley Asia (Singapore) Pte., Morgan Stanley Services Limited, Morgan Stanley & Co. International plc Seoul Branch and/or Morgan Stanley Canada Limited Unless governing law permits otherwise, you must contact an authorized Morgan Stanley entity in your jurisdiction regarding this document or any of the information contained herein. © Morgan Stanley and/or certain of its affiliates. All rights reserved. PROJECT ORANGE PRELIMINARY AND CONFIDENTIAL DRAFT 30

Exhibit (c)(vi)

Exhibit (c)(vi) CONFIDENTIAL Confidential Treatment Requested. Certain portions of this exhibit have been redacted and separately filed with the Securities and Exchange Commission pursuant to a request for confidential treatment. Funding Requirements Considerations Project Orange September 2022


***




***


CONFIDENTIAL Cap Table Sources • Individual Common Stock Balances are from 2.1.1 Cap Table - 8.31.2022.xlsx downloaded from the VDR on 9/15/2022 • Option and RSU Balances are from Equity Holdings - 8.31.22 - share price.xlsx provided by Potter on 9/14/22 • Total common shares adjusted to reflect GS conversion of ~9.2MM Class B shares to Class A prior to donating to GS Gives 6



CONFIDENTIAL Legal Disclaimer We have prepared this document solely for informational purposes. You should not definitively rely upon it or use it to form the definitive basis for any decision, contract, commitment or action whatsoever, with respect to any proposed transaction or otherwise. You and your directors, officers, employees, agents and affiliates must hold this document and any oral information provided in connection with this document in strict confidence and may not communicate, reproduce, distr bute or disclose it to any other person, or refer to it publicly, in whole or in part at any time except with our prior written consent. If you are not the intended recipient of this document, please delete and destroy all copies immediately. We have prepared this document and the analyses contained in it based, in part, on certain assumptions and information obtained by us from the recipient, its directors, officers, employees, agents, affiliates and/or from other sources. Our use of such assumptions and information does not imply that we have independently verified or necessarily agree with any of such assumptions or information, and we have assumed and relied upon the accuracy and completeness of such assumptions and information for purposes of this document. Neither we nor any of our affiliates, or our or their respective officers, employees or agents, make any representation or warranty, express or implied, in relation to the accuracy or completeness of the information contained in this document or any oral information provided in connection herewith, or any data it generates and accept no responsibility, obligation or liability (whether direct or indirect, in contract, tort or otherwise) in relation to any of such information. We and our affiliates and our and their respective officers, employees and agents expressly disclaim any and all liability which may be based on this document and any errors therein or omissions therefrom. Neither we nor any of our affiliates, or our or their respective officers, employees or agents, make any representation or warranty, express or implied, that any transaction has been or may be effected on the terms or in the manner stated in this document, or as to the achievement or reasonableness of future projections, management targets, estimates, prospects or returns, if any. Any views or terms contained herein are preliminary only, and are based on financial, economic, market and other conditions prevailing as of the date of this document and are therefore subject to change. We undertake no obligation or responsibility to update any of the information contained in this document. Past performance does not guarantee or predict future performance. This document and the information contained herein do not constitute an offer to sell or the solicitation of an offer to buy any security, commodity or instrument or related derivative, nor do they constitute an offer or commitment to lend, syndicate or arrange a financing, underwrite or purchase or act as an agent or advisor or in any other capacity with respect to any transaction, or commit capital, or to participate in any trading strategies, and do not constitute legal, regulatory, accounting or tax advice to the recipient. We recommend that the recipient seek independent third party legal, regulatory, accounting and tax advice regarding the contents of this document. This document does not constitute and should not be considered as any form of financial opinion or recommendation by us or any of our affiliates. This document is not a research report and was not prepared by the research department of Morgan Stanley or any of its affiliates. Notwithstanding anything herein to the contrary, each recipient hereof (and their employees, representatives, and other agents) may disclose to any and all persons, without limitation of any kind from the commencement of discussions, the U.S. federal and state income tax treatment and tax structure of the proposed transaction and all materials of any kind (including opinions or other tax analyses) that are provided relating to the tax treatment and tax structure. For this purpose, tax structure is limited to facts relevant to the U.S. federal and state income tax treatment of the proposed transaction and does not include information relating to the identity of the parties, their affiliates, agents or advisors. This document is provided by Morgan Stanley & Co. LLC and/or certain of its affiliates or other applicable entities, which may include Morgan Stanley Realty Incorporated, Morgan Stanley Senior Funding, Inc., Morgan Stanley Bank, N.A., Morgan Stanley & Co. International plc, Morgan Stanley Securities Limited, Morgan Stanley Bank AG, Morgan Stanley MUFG Securities Co., Ltd., Mitsubishi UFJ Morgan Stanley Securities Co., Ltd., Morgan Stanley Asia Limited, Morgan Stanley Australia Securities Limited, Morgan Stanley Australia Limited, Morgan Stanley Asia (Singapore) Pte., Morgan Stanley Services Limited, Morgan Stanley & Co. International plc Seoul Branch and/or Morgan Stanley Canada Limited Unless governing law permits otherwise, you must contact an authorized Morgan Stanley entity in your jurisdiction regarding this document or any of the information contained herein. © Morgan Stanley and/or certain of its affiliates. All rights reserved. 8

Exhibit (c)(vii)


Process Update *** • Merger agreement sent to Violet on Sunday, 9/25 • Receipt of $24.60 per share revised proposal by Violet on Wednesday, 9/28 ‒ Requires at least $675MM rollover from • • Targeting signing over the weekend of 10/8 with announcement pre-market open on Monday, 10/10 • No other parties, apart from Violet, actively involved in process at this point: ‒ No previously contacted parties have shown renewed interest since the 13D filing ‒ 13D filing has not prompted outreach to Morgan Stanley by new parties interested in participating in the process PROJECT ORANGE PRELIMINARY AND CONFIDENTIAL DRAFT 2


Key Topics • Violet feedback – price, financing ‒ Our response • Merger agreement • Voting agreements from KKR and Elephant • KKR “rollover” • Kevin Mitnick shares/voting/rollover • Diligence focus areas ‒ Q3 results; designing new equity incentive programs; channel partners • Overall timing PROJECT ORANGE PRELIMINARY AND CONFIDENTIAL DRAFT 3


o t h P y Respond1 n n R ived Initial Bid ece �� ����� , Morgan Stanley Bidder Outreach Progress Detail Compan Connected Earnings Pack NOA Signed M Sc eduled Meeting Held y P h ✓ ✓ ✓ ✓ ✓ ✓ ✓ ✓ ✓ ✓ ✓ ✓ xx ✓ ✓ ✓ ✓ ✓ xx ✓ xx ✓ ✓ ✓ ✓ ✓ ✓ xx ✓ ✓ ✓ ✓ ✓ X ✓ ✓ X ✓ X ✓ X ✓ ✓ ✓ ✓ ✓ X ✓ ✓ ✓ ✓ ✓ X ✓ xx ✓ ✓ ✓ ✓ ✓ ✓ xx ✓ ✓ X ✓ X ✓ ✓ ✓ ✓ X ✓ ✓ ✓ ✓ ✓ X ✓ Re-outreach post Violet 13-D Filing No Interest Re-confirmed no interest post Violet 13-D Filing X >( PROJECT ORANGE PRELIMINARY AND CONFIDENTIAL DRAFT 4 ***


19 Morgan Stanley Process Calendar October September Wed Sun Mon Tues Wed Thurs Fri Sat Sun Mon Tues Thurs Fri Sat *** 6 2 3 4 5 6 7 8 4 5 7 8 9 10 Model DD Tax DD Management - - P&T Diligence Potential Labor Day - ·- . Signing ARR DD - Weekend P&TDD ·- . - GTMDD ·- 9 10 11 12 13 14 15 11 14 15 16 17 12 13 Regional P&T Follow P&T Follow - Initial Potential Tax DD Up Up Bid@ Announcement $24/share ·- Date ,,., ,,. - - - - ... ( At the direction of the Special\ Committee, Morgan Stanley I 1 I spoke with - and 16 17 18 20 21 22 18 1 22 23 24 I - about their interest in a I I roll and communicated their 1 - 130\ feedback to- ✓ - - - - • - - - - and Orange Q3 Financial Labor and press Model DD G&A and Update Legal DD release are Systems DD ·- ·- filed with ·- Initial Bid 23 24 25 26 27 28 29 25 26 27 28 29 30 1 Merger - Agreement Updated Bid Sent to @$24.60 /share - Counsel ED Meeting Dates Significant Process Date PROJECT ORANGE PRELIMINARY AND CONFIDENTIAL DRAFT 5 ·- ·- ·- ·-




Illustrative Valuation Matrix $MM other than per share data, unless otherwise noted Street Case Management Case Premium / (Discount) To AV / Revenue P / FCF AV / Revenue P / FCF Fully Diluted Agg. Value Price Unaffected 30-Day Avg. 52 Wk. High EV (Bn) (Bn) CY2022E CY2023E CY2022E CY2023E CY2022E CY2023E CY2022E CY2023E Metric $17.30 $19.10 $27.40 $3.2 $2.9 $334 $416 $80 $104 $336 $440 $92 $107 Growth Rate / Margin 36% 25% 24% 25% 36% 31% 28% 24% $17.30 0% (9%) (37%) $3.2 $2.9 8.6x 6.9x 40.1x 30.7x 8.6x 6.6x 34.7x 29.8x Unaffected $24.00 39% 26% (12%) $4.5 $4.1 12.4x 9.9x 55.8x 42.6x 12.3x 9.4x 48.2x 41.4x Violet IOI Violet Revised $24.60 42% 29% (10%) $4.6 $4.2 12.7x 10.2x 57.2x 43.7x 12.7x 9.6x 49.4x 42.5x IOI 1 $25.00 45% 31% (9%) $4.6 $4.3 12.9x 10.4x 58.1x 44.4x 12.9x 9.8x 50.2x 43.2x $25.25 46% 32% (8%) $4.7 $4.4 13.1x 10.5x 58.7x 44.9x 13.0x 9.9x 50.7x 43.6x $25.50 47% 34% (7%) $4.7 $4.4 13.2x 10.6x 59.3x 45.3x 13.2x 10.0x 51.2x 44.0x $25.75 49% 35% (6%) $4.8 $4.5 13.4x 10.7x 59.9x 45.8x 13.3x 10.1x 51.7x 44.5x (4) $26.00 50% 36% (5%) $4.8 $4.5 13.5x 10.8x 60.5x 46.2x 13.4x 10.2x 52.2x 44.9x $26.25 52% 37% (4%) $4.9 $4.6 13.6x 11.0x 61.0x 46.7x 13.6x 10.3x 52.7x 45.3x Orange Counter (4) $26.50 53% 39% (3%) $4.9 $4.6 13.8x 11.1x 61.6x 47.1x 13.7x 10.4x 53.2x 45.8x Proposal 1 Source: CapIQ, Thomson Consensus Notes 1. Market data and consensus estimates as of 9/27/2022 2. FCF defined as operating cash flow less capital expenditures PROJECT ORANGE PRELIMINARY AND CONFIDENTIAL DRAFT 8


APPENDIX Supplemental Information PRELIMINARY AND CONFIDENTIAL DRAFT 9


Morgan Stanley *** - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - - - - - - - - (ii) - - - - - - - - - - - - - - -.. - - - - - - - - - - - - - - - - - - -- ■ I I I ■ I I I ■ ■ I I • • • • • • • - - - • • • - • • • • • • • • • • • • • • • • • • ■ ■ I ■ ■ I I I - ■ ■ ■ Source: SEC Schedule 14A Filings, Press Releases, CapitalQ Notes 1. 2. 3. PROJECT ORANGE PRELIMINARY AND CONFIDENTIAL DRAFT 10


CONFIDENTIAL Morgan Stanley Illustrative Equity Rollover Impact on Equity Check Required by Sponsor ------------ ( I *** I f ILLUSTRATIVE EXAMPLES ONLY L---- ----- ---- ------ ----- ------------------- ---- ----- [�- 3 3 ( ) ( ) Low Mid High Percent Amount Value a Percent Amount Amount Percent Investor Shares $24.60 Rolled Rolled Rolled Rolled Rolled Rolled - - ■ - - - - - - - ■ - - - - - - - - - - - - - - - - - ■ - - - - Subtotal - - - - -· Subtotal Rolled as% Total FD Equity - - - - - - - - - - - Total - - - - -· Rolled as % Total FD Equity - - - Notes 1. 2. 3. 11



Legal Disclaimer We have prepared this document solely for informational purposes. You should not definitively rely upon it or use it to form the definitive basis for any decision, contract, commitment or action whatsoever, with respect to any proposed transaction or otherwise. You and your directors, officers, employees, agents and affiliates must hold this document and any oral information provided in connection with this document in strict confidence and may not communicate, reproduce, distr bute or disclose it to any other person, or refer to it publicly, in whole or in part at any time except with our prior written consent. If you are not the intended recipient of this document, please delete and destroy all copies immediately. We have prepared this document and the analyses contained in it based, in part, on certain assumptions and information obtained by us from the recipient, its directors, officers, employees, agents, affiliates and/or from other sources. Our use of such assumptions and information does not imply that we have independently verified or necessarily agree with any of such assumptions or information, and we have assumed and relied upon the accuracy and completeness of such assumptions and information for purposes of this document. Neither we nor any of our affiliates, or our or their respective officers, employees or agents, make any representation or warranty, express or implied, in relation to the accuracy or completeness of the information contained in this document or any oral information provided in connection herewith, or any data it generates and accept no responsibility, obligation or liability (whether direct or indirect, in contract, tort or otherwise) in relation to any of such information. We and our affiliates and our and their respective officers, employees and agents expressly disclaim any and all liability which may be based on this document and any errors therein or omissions therefrom. Neither we nor any of our affiliates, or our or their respective officers, employees or agents, make any representation or warranty, express or implied, that any transaction has been or may be effected on the terms or in the manner stated in this document, or as to the achievement or reasonableness of future projections, management targets, estimates, prospects or returns, if any. Any views or terms contained herein are preliminary only, and are based on financial, economic, market and other conditions prevailing as of the date of this document and are therefore subject to change. We undertake no obligation or responsibility to update any of the information contained in this document. Past performance does not guarantee or predict future performance. We have (i) assumed that any forecasted financial information contained herein reflects the best available estimates of future financial performance, and (ii) not made any independent valuation or appraisal of the assets or liabilities of any company involved in any proposed transaction, nor have we been furnished with any such valuations or appraisals. The purpose of this document is to provide the recipient with a preliminary valuation for discussion purposes in connection with a potential transaction. This document and the information contained herein do not constitute an offer to sell or the solicitation of an offer to buy any security, commodity or instrument or related derivative, nor do they constitute an offer or commitment to lend, syndicate or arrange a financing, underwrite or purchase or act as an agent or advisor or in any other capacity with respect to any transaction, or commit capital, or to participate in any trading strategies, and do not constitute legal, regulatory, accounting or tax advice to the recipient. We recommend that the recipient seek independent third party legal, regulatory, accounting and tax advice regarding the contents of this document. This document does not constitute and should not be considered as any form of financial opinion or recommendation by us or any of our affiliates. This document is not a research report and was not prepared by the research department of Morgan Stanley or any of its affiliates. Notwithstanding anything herein to the contrary, each recipient hereof (and their employees, representatives, and other agents) may disclose to any and all persons, without limitation of any kind from the commencement of discussions, the U.S. federal and state income tax treatment and tax structure of the proposed transaction and all materials of any kind (including opinions or other tax analyses) that are provided relating to the tax treatment and tax structure. For this purpose, tax structure is limited to facts relevant to the U.S. federal and state income tax treatment of the proposed transaction and does not include information relating to the identity of the parties, their affiliates, agents or advisors. This document is provided by Morgan Stanley & Co. LLC and/or certain of its affiliates or other applicable entities, which may include Morgan Stanley Realty Incorporated, Morgan Stanley Senior Funding, Inc., Morgan Stanley Bank, N.A., Morgan Stanley & Co. International plc, Morgan Stanley Securities Limited, Morgan Stanley Bank AG, Morgan Stanley MUFG Securities Co., Ltd., Mitsubishi UFJ Morgan Stanley Securities Co., Ltd., Morgan Stanley Asia Limited, Morgan Stanley Australia Securities Limited, Morgan Stanley Australia Limited, Morgan Stanley Asia (Singapore) Pte., Morgan Stanley Services Limited, Morgan Stanley & Co. International plc Seoul Branch and/or Morgan Stanley Canada Limited Unless governing law permits otherwise, you must contact an authorized Morgan Stanley entity in your jurisdiction regarding this document or any of the information contained herein. © Morgan Stanley and/or certain of its affiliates. All rights reserved. 13 PROJECT ORANGE PRELIMINARY AND CONFIDENTIAL DRAFT

Exhibit (d)(vi)

Exhibit (d)(vi)

 

OWL ROCK CAPITAL

CORPORATION

OWL ROCK CAPITAL ADVISORS LLC

399 Park Avenue, 38th Floor

New York, NY 10022

  

MONROE CAPITAL MANAGEMENT ADVISORS, LLC

311 South Wacker Drive, Suite 6400

Chicago, IL 60606

  

FORTRESS CREDIT CORP.

1345 Avenue of the America, 46th Floor

New York, New York 10105

VCP CAPITAL MARKETS, LLC

c/o Vista Equity Partners

Four Embarcadero Center, 20th Floor

San Francisco, California 94111

  

BLACKSTONE ALTERNATIVE
CREDIT ADVISORS LP

345 Park Avenue, 31st Floor

New York, New York 10154

  

HPS INVESTMENT PARTNERS, LLC

40 West 57th Street, 33rd Floor

New York, New York 10019

OAKTREE CAPITAL MANAGEMENT, L.P.

333 South Grand Avenue, 28th Floor

Los Angeles, California 90071

  

BLACKROCK CAPITAL
INVESTMENT ADVISORS, LLC
- US PRIVATE CAPITAL GROUP,
and certain of its affiliates, on behalf of funds and accounts under management

40 East 52nd Street

New York, New York 10022

  

CARLYLE GLOBAL CREDIT INVESTMENT MANAGEMENT, L.L.C.

One Vanderbilt, Suite 3400

New York, New York 10017

NEW MOUNTAIN FINANCE
ADVISERS BDC, L.L.C.

1633 Broadway, 48th Floor

New York, New York 10019

     

CONFIDENTIAL

October 14, 2022

Oranje Holdco, LLC

c/o Vista Equity Partners Management, LLC

Four Embarcadero Center, 20th Floor

San Francisco, CA 94111

Attention: Kevin Sofield

Project Orange

Amended and Restated Commitment Letter

Ladies and Gentlemen:

This Amended and Restated Commitment Letter amends, restates and, except as set forth herein, supersedes in its entirety that certain commitment letter (the “Original Commitment Letter”), dated as of October 11, 2022 (the “Original Commitment Letter Date”) by and among Owl Rock Capital Corporation (“ORCC”), Owl Rock Capital Advisors LLC (“ORCA” and together with its affiliated advisors on behalf of its and their managed funds, accounts and designees, “Owl Rock”), Monroe Capital Management Advisors, LLC (“Monroe”), Fortress Credit Corp. (on behalf of itself and/or as agent on behalf of one or more funds or accounts managed by affiliates of Fortress Credit Corp.) (“Fortress”), VCP Capital Markets, LLC (“VCP”), Blackstone Alternative Credit Advisors LP (collectively with its affiliates and funds, accounts and clients managed, advised or sub-advised by any of them, “Blackstone”), HPS Investment Partners, LLC (on behalf of itself and certain of its affiliates, managed accounts or funds, collectively, “HPS”), Oaktree Capital Management, L.P. and Oaktree Fund Advisors, LLC (in each case, solely in its capacity as investment adviser to certain funds and accounts within the Strategic Credit Group, “Oaktree”), Carlyle Global Credit Investment Management, L.L.C. (“Carlyle”) and New Mountain Finance Advisers BDC, L.L.C. (“New Mountain” and together with Owl Rock, Monroe, Fortress, Blackstone, HPS, Oaktree, VCP and Carlyle, collectively, the “Original Commitment Parties”, and each an “Original Commitment Party”), and Oranje Holdco, LLC, a Delaware corporation (“Borrower” or “you”).


You have advised the Original Commitment Parties and the funds and/or accounts listed on Schedule 1 attached hereto which are managed by Blackrock Capital Investment Advisors, LLC or certain affiliates (“Blackrock” and, together with the Original Commitment Parties, the “Commitment Parties”, “we” or “us”) that Oranje Midco, LLC (“Holdings”), a Delaware limited liability company, controlled directly or indirectly by Vista Equity Partners Management, LLC (together with its controlled affiliates and affiliated investment funds, collectively, “Sponsor”), and you intend to acquire (the “Acquisition”), directly or indirectly through one or more steps, KnowBe4, Inc., a Delaware corporation (the “Company”). You have further advised us that, in connection with the foregoing, you and the Company intend to consummate the other Transactions described in the Transaction Description attached hereto as Exhibit A (the “Transaction Description”). Capitalized terms used but not defined herein shall have the meanings assigned to them in the Transaction Description, the Summary of Principal Terms and Conditions attached hereto as Exhibit B (the “Term Sheet”) or the Summary of Additional Conditions attached hereto as Exhibit C; this amended and restated commitment letter, the Transaction Description, the Term Sheet and the Summary of Additional Conditions attached hereto as Exhibit C, collectively, the “Commitment Letter”.

1. Commitments.

In connection with the Transactions, each of Owl Rock, Monroe, Fortress, VCP, Blackstone, HPS, Oaktree, Blackrock, Carlyle and New Mountain (each, an “Initial Lender” and, collectively, the “Initial Lenders”) is pleased to advise you of its commitment to provide, severally and not jointly, (i) a portion of the Term Facility (as defined on Exhibit A hereto) set forth opposite such Initial Lender’s name on Schedule I attached hereto and (ii) a portion of the Revolving Facility (as defined on Exhibit A hereto) set forth opposite such Initial Lender’s name on Schedule I attached hereto, subject only to the satisfaction (or waiver by the Commitment Parties) of the conditions explicitly set forth in the section entitled “Conditions to Initial Borrowing” in Exhibit B hereto.

2. Titles and Roles.

It is agreed that (i) each of ORCA, Monroe, Fortress, VCP, Blackstone, HPS, Oaktree and Carlyle will act as joint lead arrangers and joint bookrunners for the Credit Facilities (together with their designated affiliates, collectively, the “Lead Arrangers”), and (ii) ORCC will act as administrative agent and collateral agent (in such capacity, the “Administrative Agent”) for the Credit Facilities. It is further agreed that in respect of the Credit Facilities, ORCA shall have “left side” designation and shall appear on the top left and shall hold the leading role and responsibility customarily associated with such “top left” placement. Except as set forth in this Section 2, you agree that no other agents, co-agents, arrangers or bookrunners will be appointed, no other titles will be awarded and no compensation (other than compensation expressly contemplated by (i) this Commitment Letter, (ii) that certain amended and restated closing fee letter, dated as of the date hereof (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “Closing Fee Letter”), by and among the Commitment Parties and you, and (iii) that certain amended and restated arrangement fee letter, dated as of the date hereof (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “Arrangement Fee Letter” and, together with the Closing Fee Letter, each a “Fee Letter” and collectively, the “Fee Letters”)) will be paid to any Lender (as defined below) in order to obtain its commitment to participate in the Credit Facilities unless you and we shall so agree; provided that (i) within fifteen (15) business days following the Original Commitment Letter Date, you may appoint additional joint lead arrangers, joint bookrunners, managers, co-managers, agents or co-agents (any such joint lead arranger, joint bookrunner, manager, co-manager, agent or co-agent, an “Additional Agent”) for the Credit Facilities and award any Additional Agent any other titles in a manner and with economics determined by you in consultation with the Lead Arrangers (it being understood that, to the extent you appoint or confer any titles on and/or allocations to any Additional Agent or confer other titles in respect of the Credit Facilities, (x) the commitments of the

 

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Initial Lenders in respect of the Credit Facilities will be reduced on a pro rata basis across the Credit Facilities by the amount of the commitments of the entities so appointed (or their relevant affiliates); and (y) the economics awarded to such other arrangers shall be in proportion to their commitments assumed in respect of such Credit Facilities, with such reduction allocated to reduce the economics of the Initial Lenders in respect of the Credit Facilities at such time on a pro rata basis with respect to the Credit Facilities according to the respective amounts of their commitments), (ii) subject to the second sentence of this Section 2, any Additional Agent will be listed in the order determined by you in any marketing or other materials, (iii) upon the execution by any Additional Agent (and, in each case, any relevant affiliate) of customary joinder documentation, each such Additional Agent (and any relevant affiliate thereof) shall thereafter constitute a “Commitment Party” and a “Lead Arranger” hereunder, and it or its relevant affiliate providing such commitment shall constitute an “Initial Lender” hereunder, and (iv) you may not allocate more than 10% of the total economics in respect of the Credit Facilities to Additional Agents (or their affiliates). For the avoidance of doubt, Blackstone shall not provide the services customarily associated with the role of Lead Arranger.

3. [Reserved].

4. Information.

You hereby represent and warrant that (with respect to Information and projections relating to the Company, its subsidiaries and its and their respective businesses, to your knowledge) (a) all written information and written data, other than projections and other than information of a general economic or industry specific nature (the “Information”), that has been or will be made available to any Commitment Party by you or, at your direction, by any of your representatives on your behalf in connection with the transactions contemplated hereby, does not or will not, when furnished and when taken as a whole, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements contained therein not materially misleading in light of the circumstances under which such statements are made (giving effect to all supplements and updates thereto) and (b) the projections that have been or will be made available to us by you or, at your direction, by any of your representatives on your behalf in connection with the transactions contemplated hereby have been or will be, when furnished, taken as a whole, prepared in good faith based upon assumptions that are believed by you to be reasonable at the time such projections are so furnished; it being understood that such projections are predictions as to future events and are not to be viewed as facts or as a guarantee of performance, that such projections are subject to significant uncertainties and contingencies, many of which are beyond your control, that no assurance can be given that any particular projections will be realized, and that actual results during the period or periods covered by any such projections may differ significantly from the projected results and such differences may be material. You agree that if, at any time prior to the Closing Date, you become aware that any of the representations and warranties in the preceding sentence would be incorrect in any material respect if the Information and the projections were being furnished, and such representations were being made, at such time, then you will (or, prior to the Closing Date, with respect to the Information and such projections relating to the Company, its subsidiaries or their respective operations or assets, will, in all instances to the extent not in contravention of the Acquisition Agreement, use commercially reasonable efforts to) promptly supplement the Information and such projections such that (prior to the Closing Date, with respect to Information and projections relating to the Company, its subsidiaries and their respective businesses, to your knowledge) such representations and warranties are correct in all material respects under those circumstances, it being understood in each case that such supplementation shall cure any breach of such representations and warranties. The accuracy of the foregoing representations and warranties, whether or not cured, shall not be a condition to the commitments and obligations of the Commitment Parties hereunder or the funding of the Credit Facilities on the Closing Date. In providing their commitment hereunder, the Commitment Parties will be entitled to use and rely on the Information and projections without responsibility for independent verification thereof. The Commitment Parties do not assume any responsibility for the accuracy or completeness of the Information or projections.

 

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5. Fees.

As consideration for the commitments of the Initial Lenders hereunder, you agree to pay (or cause to be paid) the fees set forth in the Term Sheet and in the Fee Letters, if and to the extent due and payable. Once paid, such fees shall not be refundable except as otherwise set forth herein or therein or as otherwise agreed in writing by you and us.

6. Conditions.

The commitments of the Initial Lenders hereunder to fund the Credit Facilities on the Closing Date and the agreements of the Commitment Parties to perform their obligations described herein are subject solely to the conditions explicitly set forth in the section entitled “Conditions to Initial Borrowing” in Exhibit B hereto, and upon satisfaction (or waiver by all Commitment Parties in writing) of such conditions, the initial funding of the Credit Facilities shall occur; it being understood and agreed that there are no other conditions (implied or otherwise) to the commitments hereunder, including compliance with the terms of this Commitment Letter, the Fee Letters or the Credit Facilities Documentation.

Notwithstanding anything to the contrary in this Commitment Letter (including each of the exhibits attached hereto), the Fee Letters, the Credit Facilities Documentation or any other letter agreement or other undertaking concerning the financing of the Transactions to the contrary, (i) the only representations and warranties the accuracy of which shall be a condition to the availability and funding of the Credit Facilities on the Closing Date shall be (A) such of the representations and warranties made by the Company in the Acquisition Agreement as are material to the interests of the Lenders (in their capacities as such), but only to the extent that Borrower has or its affiliates have the right (taking into account any applicable cure provisions) to terminate its or its affiliates’ obligations under the Acquisition Agreement or to decline to consummate the Acquisition (in each case, in accordance with the terms the Acquisition Agreement) as a result of a breach of such representations and warranties in the Acquisition Agreement (to such extent, the “Specified Acquisition Agreement Representations”), and (B) the Specified Representations (as defined below) and (ii) the terms of the Credit Facilities Documentation and the Closing Deliverables (as defined in Exhibit C) shall be in a form such that they do not impair the availability or funding of the Credit Facilities on the Closing Date if the conditions set forth in the section entitled “Conditions to Initial Borrowing” in Exhibit B are satisfied (or waived by all Commitment Parties in writing) (provided that to the extent any security interest in any Collateral (as defined in the Term Sheet) is not or cannot be provided and/or perfected on the Closing Date (other than the pledge and perfection of the security interest in the equity interests of the Borrower and each domestic Guarantor (other than Holdings) (provided that such certificates, other than certificated equity securities of the Company, will be required to be delivered on the Closing Date only to the extent actually received from the Company after your use of commercially reasonable efforts to obtain such certificates); provided further that any such stock certificates not delivered on the Closing Date shall be required to be delivered on or prior to the date that is sixty (60) days after the Closing Date (or such later date after the Closing Date as the Administrative Agent shall agree in its sole, reasonable discretion) and other assets pursuant to which a lien may be perfected by the filing of a financing statement under the Uniform Commercial Code) after your use of commercially reasonable efforts to do so or without undue burden or expense, then the provision and/or perfection of a security interest in such Collateral shall not constitute a condition to the availability of the Credit Facilities on the Closing Date, but instead shall be required to be provided and/or perfected within ninety (90) days after the Closing Date (or such later date after the Closing Date as the Administrative Agent shall agree) pursuant to arrangements to be mutually agreed by the Administrative Agent and the Borrower acting reasonably). For purposes hereof, “Specified Representations” means the representations and warranties made by the Borrower and the

 

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Guarantors set forth in the Credit Facilities Documentation relating to organizational existence of the Borrower and the Guarantors; power and authority, due authorization, execution and delivery and enforceability, in each case with respect solely to the Credit Facilities Documentation, no conflicts with or consents under charter documents, in each case, related to the entering into and the performance of the Credit Facilities Documentation and the incurrence of the extensions of credit thereunder; solvency as of the Closing Date (after giving effect to the Transactions and with solvency being determined in a manner consistent with Annex I to Exhibit C hereto) of Holdings and its subsidiaries on a consolidated basis; Federal Reserve margin regulations; the use of loan proceeds not violating OFAC, FCPA or the PATRIOT Act; the Investment Company Act, and, subject to the proviso in the immediately preceding sentence, creation, validity and perfection of security interests in the Collateral (as defined in Exhibit B). This paragraph, and the provisions herein, shall be referred to as the “Certain Funds Provisions”.

For the avoidance of doubt, compliance by you and/or your affiliates with the terms and conditions of this Commitment Letter (other than the conditions expressly set forth in the section entitled “Conditions to Initial Borrowing” in Exhibit B hereto) is not a condition to the commitments of the Initial Lenders to fund the Credit Facilities hereunder on the terms set forth herein.

7. Indemnity.

To induce the Commitment Parties to enter into this Commitment Letter and the Fee Letters and to proceed with the documentation of the Credit Facilities, you agree (a) to indemnify and hold harmless each Commitment Party, its affiliates, managed funds and controlling persons (in each case other than any Excluded Affiliate acting in its capacity as such) and the respective officers, directors, employees, agents, advisors, partners and other representatives and successors and assigns of each of the foregoing, it being understood that in no event will this indemnity apply to any Commitment Party or its affiliates or managed funds in their respective capacities as (x) financial advisors to you, the Sponsor, any Investor or the Company or its subsidiaries in connection with the Acquisition or any other potential acquisition of the Company or (y) co-investors in the Transactions or any potential acquisition of the Company or its subsidiaries (each, an “Indemnified Person”), from and against any and all losses, claims, damages and liabilities of any kind or nature and reasonable and documented fees and out-of-pocket expenses, joint or several, to which any such Indemnified Person may become subject to the extent arising out of, resulting from or in connection with, this Commitment Letter (including the Term Sheet), the Fee Letters, the Original Commitment Letter, the Original Closing Fee Letter (as defined in the Closing Fee Letter), the Original Arrangement Fee Letter (as defined in the Arrangement Fee Letter), the Transactions or any related transaction contemplated hereby, the Credit Facilities or any use of the proceeds thereof or any claim, litigation, investigation or proceeding (including any inquiry or investigation) relating to any of the foregoing (any of the foregoing, a “Proceeding”), regardless of whether any such Indemnified Person is a party thereto, whether or not such Proceedings are brought by you, your equity holders, affiliates, creditors or any other third person, and to reimburse each such Indemnified Person upon written demand for any reasonable and documented fees and out-of-pocket expenses of one counsel for all such Indemnified Persons, taken as a whole and, if necessary, of a single local counsel in each appropriate jurisdiction (which may include a single special counsel acting in multiple jurisdictions) for all such Indemnified Persons, taken as a whole, and, solely in the case of an actual or reasonably perceived conflict of interest, one additional counsel in each applicable jurisdiction to the affected Indemnified Persons, and other reasonable and documented fees and out-of-pocket expenses incurred in connection with investigating or defending any of the foregoing (in each case, excluding allocated costs of in-house counsel and (without your prior written consent) the fees and expenses of any other third-party advisors); provided that the foregoing indemnity will not, as to any Indemnified Person, apply to losses, claims, damages, liabilities or related expenses to the extent that they have resulted from (i) the willful misconduct, bad faith or gross negligence of such Indemnified Person or any of such Indemnified Person’s controlling persons, controlled affiliates or any of its or their respective officers, directors, employees, agents, partners or successors, in each case, who are

 

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involved in or aware of the Transactions (as determined by a court of competent jurisdiction in a final and non-appealable decision), (ii) a material breach of the obligations of such Indemnified Person or any of such Indemnified Person’s controlling persons or controlled affiliates under this Commitment Letter (including its obligation to fund its commitments hereunder), the Term Sheet or the Fee Letters (as determined by a court of competent jurisdiction in a final and non-appealable decision), or (iii) disputes solely between and among Indemnified Persons to the extent such disputes do not arise from any act or omission of you, the Sponsor, the other Investors, the Company or any of your or their respective affiliates; provided that each Indemnified Person, to the extent acting in its capacity as an agent or arranger or similar role under the Credit Facilities, shall remain indemnified in respect of such disputes; and (b) to the extent that the Closing Date occurs, to reimburse each Commitment Party from time to time, upon presentation of a summary statement, for all reasonable and documented out-of-pocket expenses (including but not limited to expenses of each Commitment Party’s consultants’ fees (to the extent any such consultant has been retained with your prior written consent), due diligence expenses, travel expenses and reasonable fees, disbursements and other charges of a single counsel to the Commitment Parties identified in the Term Sheet, of a single local counsel to the Commitment Parties in each appropriate jurisdiction (which may include a single special counsel acting in multiple jurisdictions), if necessary, and of such other counsel retained with your prior written consent (such consent not to be unreasonably withheld or delayed)), in each case incurred in connection with the Credit Facilities and the preparation, negotiation and enforcement of this Commitment Letter, the Fee Letters, the Original Commitment Letter, the Original Closing Fee Letter, the Original Arrangement Fee Letter, the Credit Facilities Documentation and any security arrangements in connection therewith (collectively, the “Expenses”). You acknowledge that we may receive a benefit, including, without limitation, a discount, credit or other accommodation, from any such counsel based on the fees such counsel may receive on account of their relationship with us including, without limitation, fees paid pursuant hereto. The foregoing provisions in this paragraph shall be superseded in each case, to the extent covered thereby, by the applicable provisions contained in the Credit Facilities Documentation upon execution thereof and thereafter shall have no further force and effect.

Notwithstanding any other provision of this Commitment Letter, (i) no Indemnified Person shall be liable for any damages arising from the use by others of information or other materials obtained through internet, electronic, telecommunications or other information transmission systems, except to the extent that such damages have resulted from (x) the willful misconduct, bad faith or gross negligence of such Indemnified Person or any of such Indemnified Person’s controlling persons, controlled affiliates or any of its or their respective officers, directors, employees, agents, partners or successors, in each case, who are involved in or aware of the Transactions or (y) any material breach of the obligations of such Indemnified Person or any of such Indemnified Person’s affiliates under this Commitment Letter, the Term Sheet or the Fee Letters, in the case of the immediately preceding clauses (x) and (y), as determined by a court of competent jurisdiction in a final, non-appealable judgment, and (ii) none of us, you (or your affiliates), the Sponsor (or its affiliates), the Company (or its subsidiaries), the Investors (or their affiliates) or any Indemnified Person shall be liable for any indirect, special, punitive or consequential damages (including, without limitation, any loss of profits, business or anticipated savings) in connection with this Commitment Letter, the Fee Letters, the Original Commitment Letter, the Original Closing Fee Letter, the Original Arrangement Fee Letter, the Transactions (including the Credit Facilities and the use of proceeds thereunder), or with respect to any activities related to the Credit Facilities, including the preparation of this Commitment Letter, the Fee Letters, the Original Commitment Letter, the Original Closing Fee Letter, the Original Arrangement Fee Letter and the Credit Facilities Documentation; provided that nothing in this clause (ii) shall limit your indemnity and reimbursement obligations to the extent that such indirect, special, punitive or consequential damages are included in any claim by a third party unaffiliated with the applicable Indemnified Person with respect to which the applicable Indemnified Person is entitled to indemnification as set forth in the immediately preceding paragraph (as qualified by clause (i) immediately above).

 

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In case any Proceeding is instituted involving any Indemnified Person for which indemnification is to be sought hereunder by such Indemnified Person, then such Indemnified Person will promptly notify you of the commencement of such Proceeding; provided, however, that the failure to so notify you will not relieve you of any liability that you may have to such Indemnified Person pursuant to this Section 7, except to the extent you are materially prejudiced by such failure. You shall not, without the prior written consent of the applicable Indemnified Person (which consent shall not be unreasonably withheld or delayed) (it being understood that withholding consent due to non-satisfaction of any of the conditions described in clauses (i) and (ii) of this sentence shall be deemed reasonable), effect any settlement of, or consent to the entry of any judgment with respect to, any pending or threatened Proceedings in respect of which indemnity could have been sought hereunder by such Indemnified Person unless such settlement (i) includes an unconditional release of such Indemnified Person in form and substance reasonably satisfactory to such Indemnified Person from all liability or claims that are the subject matter of such Proceeding and (ii) does not include any statement as to or admission of fault, culpability, wrongdoing or failure to act by or on behalf of any Indemnified Person. In connection with any one Proceeding, you will not be responsible for the fees and expenses of more than one separate law firm for all Indemnified Persons plus additional local counsel and conflicts counsel to the extent provided herein.

You shall not be liable for any settlement of any Proceeding effected without your written consent (which consent shall not be unreasonably withheld or delayed), but if settled with your written consent or if there is a final and non-appealable judgment by a court of competent jurisdiction in any such Proceeding, you agree to indemnify and hold harmless each Indemnified Person from and against any and all losses, claims, damages, liabilities and reasonable and documented legal or other out-of-pocket expenses by reason of such settlement or judgment in accordance with and to the extent provided in the other provisions of this Section 7. Each Indemnified Person (by accepting the benefits hereof) agrees to, and shall, refund and return any and all amounts paid by you to such Indemnified Person if a court of competent jurisdiction determines in a final and non-appealable determination that such Indemnified Person was not entitled to indemnification or contribution rights with respect to such payment pursuant to this Section 7.

Each Indemnified Person shall give (subject to confidentiality or legal restrictions) such information and assistance to you as you may reasonably request in connection with any Proceeding.

8. Sharing of Information, Absence of Fiduciary Relationships, Affiliate Activities.

You acknowledge that the Commitment Parties and their affiliates or managed funds may be providing debt financing, equity capital or other services (including, without limitation, financial advisory services) to other persons in respect of which you, the Company and your and its respective affiliates may have conflicting interests regarding the transactions described herein and otherwise. None of the Commitment Parties and their affiliates or managed funds will use confidential information obtained from you, the Company, the Investors or any of your or their respective affiliates by virtue of the transactions contemplated by this Commitment Letter or their other relationships with you, the Company, the Investors or your or their respective affiliates in connection with the performance by them or their affiliates of services for other persons, and none of the Commitment Parties and their affiliates will furnish any such information to other persons, except to the extent permitted below. You also acknowledge that none of the Commitment Parties and their affiliates has any obligation to use in connection with the transactions contemplated by this Commitment Letter, or to furnish to you, confidential information obtained by them from other persons. In addition, please note that one or more Commitment Parties and/or their respective affiliates may be working with competing bidders for the Company in connection with providing or arranging debt or equity financing for the acquisition of the Company. You agree to such activities and arrangements, and further agree not to assert any claim you might allege based on any actual or potential conflicts of interest that might be asserted to arise or result from, on the one hand, such Commitment Party and/or its affiliates’ arranging or providing or contemplating arranging or providing financing for a competing bidder and, on the other hand, our and our affiliates’ relationships with you as described and referred to herein.

 

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As you know, certain of the Commitment Parties may be full-service securities firms engaged, either directly or through their affiliates, in various activities, including securities trading, commodities trading, investment management, financing and brokerage activities and financial planning and benefits counseling for both companies and individuals. In the ordinary course of these activities, certain of the Commitment Parties and their respective affiliates may actively engage in commodities trading or trade the debt and equity securities (or related derivative securities) and financial instruments (including bank loans and other obligations) of you, the Company and other companies that may be the subject of the arrangements contemplated by this Commitment Letter for their own account and for the accounts of their customers and may at any time hold long and short positions in such securities. Certain of the Commitment Parties or their affiliates may also co-invest with, make direct investments in, and invest or co-invest client monies in or with funds or other investment vehicles managed by other parties, and such funds or other investment vehicles may trade or make investments in securities of you, the Company or other companies that may be the subject of the arrangements contemplated by this Commitment Letter or engage in commodities trading with any thereof.

The Commitment Parties and their respective affiliates may have economic interests that conflict with those of you or the Company and may be engaged in a broad range of transactions that involve interests that differ from yours and those of your affiliates and the Commitment Parties have no obligation to disclose any of such interests to you or your affiliates. You agree that the Commitment Parties will act under this Commitment Letter as independent contractors and that nothing in this Commitment Letter or the Fee Letters will be deemed to create an advisory, fiduciary or agency relationship or fiduciary or other implied duty between the Commitment Parties, on the one hand, and you, the Company, your and its respective equity holders or your or their respective affiliates, on the other hand. You acknowledge and agree that (i) the transactions contemplated by this Commitment Letter and the Fee Letters are arm’s-length commercial transactions between the Commitment Parties and, if applicable, their affiliates, on the one hand, and you, on the other, (ii) in connection therewith and with the process leading to such transaction each Commitment Party and each of its applicable affiliates (as the case may be) is acting solely as a principal and has not been, is not and will not be acting as an advisor, an agent or a fiduciary of you, the Company, your and its management, equity holders, creditors, affiliates or any other person and (iii) the Commitment Parties and their applicable affiliates (as the case may be) have not assumed an advisory or fiduciary responsibility or any other obligation in favor of you or your affiliates with respect to the transactions contemplated hereby or the process leading thereto (irrespective of whether the Commitment Parties or any of their respective affiliates have advised or are currently advising you or the Company on other matters) except the obligations expressly set forth in this Commitment Letter and the Fee Letters. You further acknowledge and agree that (a) you are responsible for making your own independent judgment with respect to such transactions and the process leading thereto, (b) you are capable of evaluating and understand and accept the terms, risks and conditions of the transactions contemplated hereby, and (c) we have provided no legal, accounting, regulatory or tax advice and you contacted your own legal, accounting, regulatory and tax advisors to the extent you have deemed appropriate. You agree that you will not claim that the Commitment Parties or their applicable affiliates, as the case may be, have rendered advisory services of any nature or respect, or owe a fiduciary or similar duty to you or your affiliates, in connection with such transaction or the process leading thereto.

 

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9. Confidentiality.

You agree that you will not disclose, directly or indirectly, the Fee Letters, the Original Closing Fee Letter, the Original Arrangement Fee Letter and the contents thereof or this Commitment Letter or the Original Commitment Letter, the Term Sheet, the other exhibits and attachments hereto and the contents of each thereof, or the activities of any Commitment Party pursuant hereto or thereto, to any person or entity without prior written approval of the relevant Commitment Parties (which may be provided by electronic means) (such approval not to be unreasonably withheld, conditioned or delayed), except (a) to the Investors, and to your and any of the Investors’ affiliates and your and their respective Related Parties, controlling persons or equity holders and to any other actual and/or potential co-investors, in each case, on a confidential basis, (b) if the relevant Commitment Parties consent in writing (such consent not to be unreasonably withheld or delayed) to such proposed disclosure, (c) to the extent such information becomes publicly available other than by reason of improper disclosure in violation of any confidentiality obligation owing to us (including those set forth in this paragraph), (d) in any legal, judicial or administrative proceeding or as otherwise required by applicable law, rule or regulation (including this Commitment Letter and the Original Commitment Letter (but not the Fee Letters, the Original Closing Fee Letter or the Original Arrangement Fee Letter, other than the aggregate fee amount, unless required by the Securities and Exchange Commission, in which case you shall provide only a version redacted in a customary manner, unless an unredacted version is specifically requested or required by the Securities and Exchange Commission, in which case an unredacted version may be provided), including, without limitation, any applicable rules of any national securities exchange and/or applicable federal securities laws in connection with any Securities and Exchange Commission filings relating to the Acquisition) or compulsory legal process or as requested by a governmental authority and/or regulatory authority (in which case you agree, to the extent practicable and permitted by law, rule or regulation, to inform us promptly thereof), or (e) to a tax authority, to the extent reasonably necessary in connection with the tax affairs of Holdings and/or its affiliates; provided that (i) you may disclose this Commitment Letter (including the Term Sheet and the other exhibits and attachments hereto) and the contents hereof (but not the Fee Letters, the Original Closing Fee Letter, the Original Arrangement Fee Letter or the contents thereof) to the Company (including any shareholder representative), its subsidiaries and its Related Parties, controlling persons or equity holders, on a confidential basis, (ii) you may disclose this Commitment Letter (including the Term Sheet and the other exhibits and attachments hereto) and the contents hereof (but not the Fee Letters, the Original Closing Fee Letter, the Original Arrangement Fee Letter or the contents thereof) in any proxy, public filing, prospectus, offering memorandum, offering circular or other marketing materials in connection with the Acquisition or the Credit Facilities or in connection with any public filing relating to the Transactions, (iii) you may disclose the Term Sheet (and the other exhibits and attachments hereto) and the contents thereof (and the aggregate amount of fees payable under the Fee Letters as part of projections, pro forma information and a generic disclosure of aggregate sources and uses), to potential Lenders, (iv) you may disclose the aggregate fee amount contained in the Fee Letters as part of projections, pro forma information or a generic disclosure of aggregate sources and uses related to fee amounts related to the Transactions to the extent customary or required in any public or regulatory filing relating to the Transactions, (v) you may disclose this Commitment Letter (including the Term Sheet and the other exhibits and attachments hereto), the Fee Letters, the Original Closing Fee Letter or the Original Arrangement Fee Letter in connection with the enforcement of your rights hereunder and thereunder, (vi) you may disclose this Commitment Letter and the Fee Letters and the contents of hereof and thereof (including the Term Sheet and the other exhibits and attachments hereto) to any potential additional lead arranger or additional joint bookrunner, in either case to the extent in contemplation of appointing such person pursuant to Section 2 of this Commitment Letter and to any such person’s affiliates and its and their respective Related Parties, controlling persons and equity holders, in each case, on a confidential basis, and (vii) if the fee amounts payable pursuant to the Fee Letters have been redacted in a customary manner, you may disclose the Fee Letters and the contents thereof to the Company (including any shareholder representative), its subsidiaries and its Related Parties, controlling persons or equity holders, on a confidential basis; provided that after the execution of this Commitment Letter by you, the Fee Letters and contents thereof may be disclosed to the Company, its subsidiaries and its Related Parties, controlling persons or equity holders, on a confidential basis (and redacted in a manner consistent with this clause (vii)). The provisions of this paragraph shall automatically terminate on the second anniversary of the Original Commitment Letter Date.

 

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Each Commitment Party and its affiliates will use all non-public information provided to it or such affiliates by or on behalf of you hereunder or in connection with the Acquisition and the related Transactions solely for the purpose of performing its obligations that are the subject of this Commitment Letter and shall treat confidentially all such information and shall not publish, disclose or otherwise divulge, such information; provided that nothing herein shall prevent such Commitment Party and its affiliates from disclosing any such information (a) with your consent, (b) pursuant to the order of any court or administrative agency or in any pending legal, judicial or administrative proceeding, or otherwise as required by applicable law, rule or regulation or compulsory legal process based on the reasonable advice of counsel (in which case such Commitment Party agrees (except with respect to any audit or examination conducted by bank accountants or any regulatory authority exercising examination or regulatory authority), to the extent practicable and not prohibited by applicable law, rule or regulation, to inform you promptly thereof prior to disclosure) or in connection with filings, submissions and any other similar documentation required or customary to comply with Securities and Exchange Commission filing requirements, (c) upon the request or demand of any regulatory authority (including any self-regulatory authority) having jurisdiction over such Commitment Party or any of its affiliates (in which case such Commitment Party agrees (except with respect to any audit or examination conducted by bank accountants or any regulatory authority (including any self-regulatory authority) exercising examination or regulatory authority), to the extent practicable and not prohibited by applicable law, rule or regulation, to inform you promptly thereof prior to disclosure), (d) to the extent that such information becomes publicly available other than by reason of improper disclosure by such Commitment Party, any of its affiliates or any of its or their Related Parties in violation of any confidentiality obligations (including those set forth in this paragraph) owing to you, the Company, the Investors or any of your or their respective affiliates or any of your or their Related Parties, (e) to the extent that such information is received by such Commitment Party or any of its affiliates from a third party that is not, to such Commitment Party’s knowledge (after due inquiry), subject to any contractual or fiduciary confidentiality obligations owing to you, the Company, the Investors or any of your or their affiliates or any of your or their Related Parties, (f) to the extent that such information is independently developed by such Commitment Party or any of its affiliates without the use of any confidential information and without violating the terms of this Commitment Letter, (g) to such Commitment Party’s affiliates and managed funds (in each case, other than any Excluded Affiliates), investment committee members and current and prospective investors and to its and their respective directors, officers, employees, shareholders, limited partners, financing sources, legal counsel, independent auditors, professionals and other experts or agents (such Persons, “Related Parties”) who need to know such information in connection with the Transactions and who are informed of the confidential nature of such information and who are subject to customary confidentiality obligations of professional practice or who agree in writing to be bound by the terms of this paragraph (or language substantially similar to this paragraph) (with such Commitment Party, to the extent such person’s compliance with this paragraph is within its control, being responsible for such compliance) or, with respect to disclosure to investors or prospective investors, such disclosure is in connection with customary portfolio reviews, (h) to prospective Lenders (as defined in the Term Sheet), participants or assignees and to any direct or indirect contractual counterparty to any swap or derivative transaction relating to you or any of your subsidiaries under any Credit Facility, (i) for purposes of establishing a due diligence defense in any legal proceedings, (j) as is necessary or advisable in protecting and enforcing the Commitment Parties’ rights with respect to this Commitment Letter, the Fee Letters, the Original Commitment Letter, the Original Closing Fee Letter or the Original Arrangement Fee Letter, or (k) to the National Association of Insurance Commissioners and/or any rating agency; provided that no such disclosure shall be made to the members of such Commitment Party’s or any of its affiliates’ deal teams that are engaged (x) primarily as principals in private equity or venture capital or (y) in the sale of the Company and its subsidiaries, including through the provision of advisory services (any entities described in clauses (x) and (y), “Excluded Affiliates”), other than to a limited number of senior employees who are required, in accordance with industry regulations or such Commitment Party’s internal policies and procedures to act in a supervisory capacity and the Commitment Parties’ internal legal, compliance, risk management, credit or investment committee members, in each case solely to the extent that any such

 

10


information that is disclosed to such persons is done on a “need to know” basis solely in connection with the transactions contemplated by this Commitment Letter and any such persons are informed of the confidential nature of such information and are or have been advised of their obligation to keep information of such type confidential; provided that the disclosure of any such information pursuant to clauses (h) and (i) above shall be made subject to the acknowledgement and acceptance by such recipient (other than, in respect of clause (i), a judge in such legal proceeding) that such information is being disseminated on a confidential basis (on substantially the terms set forth in this paragraph or as is otherwise reasonably acceptable to you and each Commitment Party) in accordance with market standards for dissemination of such types of information, which may require “click-through” or other affirmative action on the part of the recipient to access such confidential information and acknowledge its confidentiality obligations in respect thereof. The Commitment Parties’ and their affiliates’, if any, obligations under this paragraph shall terminate automatically and be superseded by the confidentiality provisions in the definitive documentation relating to the Credit Facilities upon the initial funding thereunder. The provisions of this paragraph shall otherwise automatically terminate on the second anniversary of the Original Commitment Letter Date. In no event shall any disclosure of information referred to above be made to any Disqualified Lender (to be defined in a manner consistent with the Documentation Principles). It is understood and agreed that no Commitment Party may advertise or promote its role in providing any portion of any Credit Facility (including in any newspaper or other periodical, on any website or similar place for dissemination of information on the internet, as part of a “case study” incorporated into promotional materials, in the form of a “tombstone” advertisement or otherwise) without the prior written consent of the Borrower (which consent may be withheld in the Borrower’s sole and absolute discretion). Notwithstanding the foregoing, with respect to any Commitment Party, any Lender or its respective affiliates or managed funds, in each case, that is an investment company registered under the Investment Company Act of 1940, such person may identify the Borrower, the value (and valuation methodology) of such person’s holdings in the Borrower and other required information in accordance with its Investment Company Act of 1940 reporting practices, in each case without notice to you or any other person.

10. Miscellaneous.

This Commitment Letter and the commitments hereunder shall not be assignable by any party hereto (other than (x) by you, on or after the Closing Date, to Holdings or another entity, so long as such entity is newly formed under the laws of any jurisdiction within the United States of America and is, or will be, controlled by Sponsor after giving effect to the Transactions and shall (directly or indirectly through a wholly-owned subsidiary and (y) by any Commitment Party to its affiliated and/or managed or advised funds and accounts; provided that (a) no Commitment Party shall be relieved of any of its obligations hereunder, including in the event that any affiliated and/or managed or advised funds and accounts through which it performs its obligations fails to perform the same in accordance with the terms hereof, and (b) the applicable Commitment Party shall be responsible for any breach by any such affiliated and/or managed or advised funds and accounts referred to in the foregoing clause (a) of the obligations hereunder) own the Company or be the successor to the Company) without the prior written consent of each other party hereto (such consent not to be unreasonably withheld or delayed) (and any attempted assignment without such consent shall be null and void). This Commitment Letter and the commitments hereunder are intended to be solely for the benefit of the parties hereto (and Indemnified Persons to the extent expressly set forth herein) and do not and are not intended to confer any benefits upon, or create any rights in favor of, any person other than the parties hereto (and Indemnified Persons to the extent expressly set forth herein). The Commitment Parties reserve the right to utilize their affiliates or branches or their financing sources in performing the obligations contemplated hereby and to allocate, in whole or in part, to their affiliates or branches or financing sources certain fees payable to the Commitment Parties in such manner as the Commitment Parties and their affiliates or branches or financing sources may agree in their sole discretion and, to the extent so employed, such affiliates and branches or financing sources shall be entitled to the benefits and protections afforded to, and subject to the provisions governing the conduct of, the

 

11


Commitment Parties hereunder; provided that (a) no Commitment Party shall be relieved of any of its obligations hereunder, including in the event that any affiliate or branch or financing source through which it performs its obligations fails to perform the same in accordance with the terms hereof, and (b) the applicable Commitment Party shall be responsible for any breach by any such affiliate or branch or financing source referred to in the foregoing clause (a) of the obligations hereunder. This Commitment Letter may not be amended or any provision hereof waived or modified except by an instrument in writing signed by each of the Commitment Parties and you. This Commitment Letter may be executed in any number of counterparts, each of which shall be deemed an original and all of which, when taken together, shall constitute one agreement. Delivery of an executed counterpart of a signature page of this Commitment Letter by facsimile transmission or other electronic transmission (i.e., a “pdf” or “tif”) shall be effective as delivery of a manually executed counterpart hereof. The words “execution”, “signed”, “signature” and words of like import in this Commitment Letter shall be deemed to include electronic signatures or electronic records, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act.

This Commitment Letter (including the exhibits hereto), together with the Fee Letters, (i) are the only agreements that have been entered into among the parties hereto with respect to the Credit Facilities and (ii) supersede all prior understandings (including the Original Commitment Letter, the Original Closing Fee Letter and the Original Arrangement Fee Letter), whether written or oral, among us with respect to the Credit Facilities and sets forth the entire understanding of the parties hereto with respect thereto. THIS COMMITMENT LETTER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK; PROVIDED, HOWEVER, THAT (A) THE INTERPRETATION OF THE DEFINITION OF “COMPANY MATERIAL ADVERSE EFFECT” (AS DEFINED IN THE ACQUISITION AGREEMENT) (AND WHETHER OR NOT A “COMPANY MATERIAL ADVERSE EFFECT” (AS DEFINED IN THE ACQUISITION AGREEMENT) HAS OCCURRED), (B) THE DETERMINATION OF THE ACCURACY OF ANY SPECIFIED ACQUISITION AGREEMENT REPRESENTATION AND WHETHER AS A RESULT OF ANY INACCURACY THEREOF YOU AND ANY OF YOUR AFFILIATES HAVE THE RIGHT (TAKING INTO ACCOUNT ANY APPLICABLE CURE PROVISIONS) TO TERMINATE YOUR AND ITS OBLIGATIONS UNDER THE ACQUISITION AGREEMENT OR TO DECLINE TO CONSUMMATE THE ACQUISITION IN ACCORDANCE WITH THE TERMS THEREOF, AND (C) THE DETERMINATION OF WHETHER THE ACQUISITION HAS BEEN CONSUMMATED IN ACCORDANCE WITH THE TERMS OF THE ACQUISITION AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF DELAWARE, REGARDLESS OF ANY BORROWING STATUTES THAT WOULD RESULT IN THE APPLICATION OF THE STATUTE OF LIMITATIONS OF ANY OTHER JURISDICTION.

Each of the parties hereto agrees that (i) this Commitment Letter is a binding and enforceable agreement with respect to the subject matter contained herein, including the good faith negotiation of the Credit Facilities Documentation in a manner consistent with this Commitment Letter, it being acknowledged and agreed that the commitments provided hereunder are subject solely to conditions as expressly provided herein, and (ii) each Fee Letter is a legally valid and binding agreement of the parties thereto with respect to the subject matter set forth therein. Promptly following the execution of this Commitment Letter and the Fee Letters, the Credit Facilities Documentation shall be negotiated in good faith for purposes of executing and delivering the Credit Facilities Documentation substantially simultaneously with the consummation of the Acquisition.

 

12


EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES THE RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING, CLAIM OR COUNTERCLAIM BROUGHT BY OR ON BEHALF OF ANY PARTY RELATED TO OR ARISING OUT OF THIS COMMITMENT LETTER OR THE FEE LETTERS OR THE PERFORMANCE OF OBLIGATIONS HEREUNDER OR THEREUNDER.

Each of the parties hereto hereby irrevocably and unconditionally (a) submits, for itself and its property, to the exclusive jurisdiction of any New York State court or federal court of the United States of America sitting in New York County (the Borough of Manhattan), and any appellate court from any thereof, in any action or proceeding arising out of or relating to this Commitment Letter, the Fee Letters or the transactions contemplated hereby or thereby, or for recognition or enforcement of any judgment, and agrees that all claims in respect of any such action or proceeding shall only be heard and determined in such New York State court or, to the extent permitted by law, in such federal court, (b) waives, to the fullest extent it may legally and effectively do so, any objection that it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Commitment Letter or the transactions contemplated hereby in any New York State or in any such federal court, (c) waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court, and (d) agrees that a final judgment in any such suit, action or proceeding shall be conclusive and may be enforced in any other courts to whose jurisdiction such person is subject, by suit on the judgment or in any other manner provided by law; provided that with respect to any suit, action or proceeding arising out of or relating to the Acquisition Agreement or the transactions contemplated thereby and that does not involve claims against us or the Lenders (as defined in the Term Sheet) or any Indemnified Person, this sentence shall not override any jurisdiction provision set forth in the Acquisition Agreement. Each of the parties hereto agrees that service of process, summons, notice or document by registered mail addressed to you or us at the addresses set forth above shall be effective service of process for any suit, action or proceeding brought in any such court.

We hereby notify you that pursuant to the requirements of the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “PATRIOT Act”) and the requirements of 31 C.F.R. § 1010.230 (the “Beneficial Ownership Regulation”), each of us and each of the Lenders (as defined in the Term Sheet) may be required to obtain, verify and record information that identifies the Borrower and the Guarantors, which information may include their names, addresses, tax identification numbers and other information that will allow each of us and the Lenders (as defined in the Term Sheet) to identify the Borrower and the Guarantors in accordance with the PATRIOT Act and the Beneficial Ownership Regulation. This notice is given in accordance with the requirements of the PATRIOT Act or the Beneficial Ownership Regulation and is effective for each of us and the Lenders (as defined in the Term Sheet).

The indemnification, compensation (if applicable in accordance with the terms hereof and of the Fee Letters), reimbursement (if applicable in accordance with the terms hereof and of the Fee Letters), jurisdiction, governing law, venue, waiver of jury trial, service of process and confidentiality provisions contained herein and in the Fee Letters and the provisions of Section 8 of this Commitment Letter shall remain in full force and effect regardless of whether the Credit Facilities Documentation shall be executed and delivered and notwithstanding the termination or expiration of this Commitment Letter or the commitments of the Initial Lenders hereunder; provided that your obligations under this Commitment Letter (other than your obligations with respect to (a) confidentiality of the Fee Letters and the contents thereof and (b) your understandings and agreements regarding no agency or fiduciary duty) shall automatically terminate and be superseded, to the extent covered thereby, by the provisions of the Credit Facilities Documentation upon the initial funding thereunder, and you shall automatically be released from all liability in connection therewith at such time. You may terminate this Commitment Letter and/or the commitments of the Initial Lenders with respect to the Credit Facilities (or portion thereof) hereunder at any time subject to the provisions of the immediately preceding sentence and the following sentence. In addition, in the event that a lesser amount of indebtedness is required to fund the Transactions for any reason, you may reduce the commitments of the Initial Lenders with respect to the Credit Facilities on a pro rata basis among the Initial Lenders, provided that such reduction shall be effected ratably between the Term Facility and the Revolving Facility among the Initial Lenders.

 

13


Section headings used herein are for convenience of reference only and are not to affect the construction of, or to be taken into consideration in interpreting, this Commitment Letter.

If the foregoing correctly sets forth our agreement, please indicate your acceptance of the terms of this Commitment Letter and of the Fee Letters by returning to the Commitment Parties (or their legal counsel), executed counterparts hereof and of the Fee Letters not later than 11:59 p.m., New York City time, October 14, 2022. The Initial Lenders’ respective commitments and the obligations of the Commitment Parties hereunder will automatically expire at such time in the event that the Commitment Parties (or their legal counsel) have not received such executed counterparts in accordance with the immediately preceding sentence. If you do so execute and deliver to us this Commitment Letter and the Fee Letters at or prior to such time, we agree to hold our commitment to provide the Credit Facilities and our other undertakings in connection therewith available for you until the earliest of (i) the termination of the Acquisition Agreement in accordance with its terms, (ii) consummation of the Acquisition with or without the funding of the Credit Facilities, and (iii) five (5) business days after the “Termination Date” (as defined in the Acquisition Agreement (as in effect as of the Original Commitment Letter Date)) (such earliest time, the “Expiration Date”). Upon the Expiration Date, this Commitment Letter and the commitments of each of the Commitment Parties hereunder and the agreement of the Commitment Parties to perform the obligations described herein shall automatically terminate unless the Commitment Parties shall, in their discretion, agree to an extension in writing.

The Original Commitment Letter shall be superseded hereby in its entirety upon the effectiveness of this Commitment Letter; provided, however, that the Original Commitment Parties shall be entitled to the benefits of the indemnification, expense reimbursement and confidentiality provisions (and other provisions that by their terms survive termination) of this Commitment Letter as if they were in effect on the Original Commitment Letter Date and of the Original Commitment Letter.

[Remainder of this page intentionally left blank]

 

14


We are pleased to have been given the opportunity to assist you in connection with the financing for the Transactions.

 

Very truly yours,

OWL ROCK CAPITAL CORPORATION

By:

 

/s/ Jon ten Oever

Name: Jon ten Oever

Title: Authorized Signatory

OWL ROCK CAPITAL ADVISORS LLC, on behalf of its affiliated advisors and its and their managed funds

By:

 

/s/ Jon ten Oever

Name: Jon ten Oever

Title: Authorized Signatory

 

[Signature Page to Commitment Letter]


MONROE CAPITAL MANAGEMENT ADVISORS, LLC

By:

 

/s/ Gerry Burrows

Name: Gerry Burrows

Title: Managing Director

 

 

[Signature Page to Commitment Letter]


FORTRESS CREDIT CORP.

By:

 

/s/ Radhika Hulyalkar

Name: Radhika Hulyalkar

Title: Deputy Chief Financial Officer

 

 

[Signature Page to Commitment Letter]


BLACKSTONE ALTERNATIVE CREDIT ADVISORS LP

By:

 

/s/ Marisa Beeney

Name: Marisa Beeney

Title: Authorized Signatory

 

[Signature Page to Commitment Letter]


HPS INVESTMENT PARTNERS, LLC

By:

 

/s/ Robert Kostow

Name: Robert Kostow

Title: Managing Director

 

[Signature Page to Commitment Letter]


OAKTREE CAPITAL MANAGEMENT, L.P.
OAKTREE FUND ADVISORS, LLC

in each case, solely in its capacity as investment adviser to certain funds and accounts within the Strategic Credit Group

By:

 

/s/ Mary Gallegly

Name: Mary Gallegly

Title: Managing Director

By:

 

/s/ Matthew Wong

Name: Matthew Wong

Title: Senior Vice President

 

[Signature Page to Commitment Letter]


VCP CAPITAL MARKETS

By:

 

/s/ Melissa K. Griffiths

Name:  Melissa K. Griffiths

Title:    Duly Authorized Signatory

 

 

[Signature Page to Commitment Letter]


SPECIAL VALUE CONTINUATION PARTNERS, LLC

TENNENBAUM SENIOR LOAN FUND II, LP

TENNENBAUM SENIOR LOAN FUND V, LLC

TCP DIRECT LENDING FUND VIII-A, LLC

TCP DIRECT LENDING FUND VIII-S, LLC

TCP DIRECT LENDING FUND VIII-T, LLC

RELIANCE STANDARD LIFE INSURANCE COMPANY

On behalf of each of the above entities:

By: TENNENBAUM CAPITAL PARTNERS, LLC

Its: Investment Manager

By:

 

     /s/ Phil Tseng

Name: Phil Tseng

Title:   Managing Director

 

BLACKROCK MT. HOOD CLO X, LLC

By: Blackrock Capital Investment Advisors, LLC,

Its Collateral Manager, acting as agent and attorney-in-fact

By:

 

     /s/ Phil Tseng

Name: Phil Tseng

Title:   Managing Director

 

BLACKROCK SHASTA SENIOR LOAN FUND VII, LLC

BLACKROCK DLF IX 2019 CLO, LLC

BLACKROCK DLF IX 2020-1 CLO, LLC

BLACKROCK DLF IX CLO 2021-1, LLC

BLACKROCK DLF IX CLO 2021-2, LLC

BLACKROCK DLF X CLO 2022-1, LLC

By: BlackRock Capital Investment Advisors, LLC

Its: Collateral Manager

By:

 

     /s/ Phil Tseng

Name: Phil Tseng

Title:   Managing Director

 

TCP DLF VIII-S FUNDING, LLC

By: TCP Direct Lending Fund VIII-S, LLC

Its: Sole Member

By: Tennenbaum Capital Partners, LLC

Its: Investment Manager

By:

 

     /s/ Phil Tseng

Name: Phil Tseng

Title:   Managing Director

 

TCP DLF VIII-T FUNDING, LLC

By: TCP Direct Lending Fund VIII-T, LLC

Its: Sole Member

By: Tennenbaum Capital Partners, LLC

Its: Investment Manager

By:

 

     /s/ Phil Tseng

Name: Phil Tseng

Title:   Managing Director

 

BLACKROCK DLF IX ICAV,

an umbrella type Irish collective asset management vehicle acting solely for and on behalf of its sub-fund

BLACKROCK DIRECT LENDING FUND IX-U (IRELAND)

By: Blackrock Capital Investment Advisors, LLC

Its: Investment Manager acting as attorney-in-fact

By:

 

     /s/ Phil Tseng

Name: Phil Tseng

Title:   Managing Director

 

BLACKROCK DIRECT LENDING FUND IX-U (LUXEMBOURG) SCSP

BLACKROCK DIRECT LENDING CORP.

By: BlackRock Capital Investment Advisors, LLC,

Its: Manager

By:

 

     /s/ Phil Tseng

Name: Phil Tseng

Title:   Managing Director

 

BLACKROCK CAPITAL INVESTMENT CORPORATION

BLACKROCK PRIVATE CREDIT FUND

BLACKROCK PRIVATE CREDIT FUND LEVERAGE I, LLC

By: BlackRock Capital Investment Advisors, LLC,

Its: Investment Advisor

By:

 

     /s/ Phil Tseng

Name: Phil Tseng

Title:   Managing Director

 

[Signature Page to Commitment Letter]


CARLYLE GLOBAL CREDIT INVESTMENT MANAGEMENT, L.L.C.

By:

 

/s/ Joshua Lefkowitz

Name: Joshua Lefkowitz

Title:   Managing Director

 

[Signature Page to Commitment Letter]


NEW MOUNTAIN FINANCE ADVISERS BDC, L.L.C.

By:

 

/s/ James W. Stone

Name: James W. Stone

Title: Authorized Person

 

[Signature Page to Commitment Letter]


Accepted and agreed to as of

the date first above written:

ORANJE HOLDCO, LLC,

a Delaware corporation

By:

 

/s/ Nicholas Prickel

Name: Nicholas Prickel

Title:   Vice President

 

[Signature Page to Commitment Letter]


SCHEDULE I

COMMITMENTS

 

Lender

   Revolving Facility
Commitment
     Term Facility
Commitment
     Total  

Owl Rock

   $ 29,375,000      $ 235,000,000      $ 264,375,000  

Monroe

   $ 17,500,000      $ 140,000,000      $ 157,500,000  

Fortress

   $ 13,250,000      $ 106,000,000      $ 119,250,000  

VCP

   $ 12,500,000      $ 100,000,000      $ 112,500,000  

Blackstone

   $ 11,625,000      $ 93,000,000      $ 104,625,000  

HPS

   $ 10,375,000      $ 83,000,000      $ 93,375,000  

Oaktree

   $ 9,750,000      $ 78,000,000      $ 87,750,000  

Special Value Continuation Partners, LLC

   $ 1,229,873.49      $ 9,838,988.03      $ 11,068,861.52  

BlackRock Capital Investment Corp

   $ 417,050.75      $ 3,336,405.98      $ 3,753,456.73  

BlackRock Direct Lending Corp.

   $ 181,354.79      $ 1,450,838.29      $ 1,632,193.08  

BlackRock Private Credit Fund Leverage I, LLC

   $ 180,686.25      $ 1,445,489.97      $ 1,626,176.22  

Tennenbaum Senior Loan Fund II, LP

   $ 578,946.96      $ 4,631,575.69      $ 5,210,522.65  

Tennenbaum Senior Loan Fund V, LLC

   $ 398,871.73      $ 3,190,973.84      $ 3,589,845.57  

BlackRock Mt. Hood CLO X, LLC

   $ 254,165.32      $ 2,033,322.56      $ 2,287,487.88  

BlackRock Shasta Senior Loan Fund VII, LLC

   $ 833,444.84      $ 6,667,558.69      $ 7,501,003.53  

TCP Direct Lending Fund VIII-A, LLC

   $ 241,878.66      $ 1,935,029.24      $ 2,176,907.90  

Reliance Standard Life Insurance Company

   $ 297,035.92      $ 2,376,287.33      $ 2,673,323.25  

TCP Direct Lending Fund VIII-S, LLC

   $ 138,895.83      $ 1,111,166.67      $ 1,250,062.50  

TCP Direct Lending Fund VIII-T, LLC

   $ 222,227.78      $ 1,777,822.22      $ 2,000,050.00  

BlackRock DLF IX 2019 CLO, LLC

   $ 137,575.19      $ 1,100,601.56      $ 1,238,176.75  

BlackRock DLF IX 2020-1 CLO, LLC

   $ 155,824.18      $ 1,246,593.42      $ 1,402,417.60  

BlackRock DLF IX CLO 2021-1, LLC

   $ 380,731.62      $ 3,045,852.97      $ 3,426,584.59  

BlackRock DLF IX CLO 2021-2, LLC

   $ 945,311.41      $ 7,562,491.32      $ 8,507,802.73  

BlackRock Direct Lending Fund IX-U (Ireland)

   $ 282,407.35      $ 2,259,258.80      $ 2,541,666.15  

BlackRock Direct Lending Fund IX-U (Luxembourg) SCSp

   $ 333,590.18      $ 2,668,721.41      $ 3,002,311.59  

BlackRock DLF X CLO 2022-1, LLC

   $ 540,127.75      $ 4,321,022.01      $ 4,861,149.76  

Carlyle

   $ 7,750,000      $ 62,000,000      $ 69,750,000  

New Mountain

   $ 5,125,000      $ 41,000,000      $ 46,125,000  

TOTAL

   $ 125,000,000.00      $ 1,000,000,000.00      $ 1,125,000,000.00  

 

 

Schedule I - 1


EXHIBIT A

Project Orange

Transaction Description

Capitalized terms used but not defined in this Exhibit A shall have the meanings set forth in the other Exhibits to the Commitment Letter to which this Exhibit A is attached or in the Commitment Letter. In the case of any such capitalized term that is subject to multiple and differing definitions, the appropriate meaning thereof in this Exhibit A shall be determined by reference to the context in which it is used.

Sponsor, together with certain other investors arranged by and/or designated by the Sponsor (if applicable) (including members of the Company’s management and/or the Company’s founders and/or existing equityholders) (collectively with the Sponsor, the “Investors”) intend to acquire or recapitalize its ownership of (the “Acquisition”), directly or indirectly, the Company.

In connection with the foregoing, it is intended that:

 

a)

The Investors will, directly or indirectly, make cash contributions to Holdings in exchange for equity of Holdings (the “Equity Contribution”), with all contributions to Holdings to be in the form of common and/or preferred equity (including any PIK preferred stock investment made by the Investors in Holdings); provided that any such contributions in a form other than common equity shall be reasonably satisfactory to the Commitment Parties, in an aggregate amount equal to, when combined with the fair market value of all capital contributions and investments by management and existing equity holders of the Company rolled over or invested, directly or indirectly, in Holdings in connection with the Transactions (as defined below) (the “Other Equity”), and subject to amounts withheld at closing for potential future settlement or resolution of shareholder appraisal claims in an amount not to exceed the Per Share Price (as defined in the Acquisition Agreement) per each Dissenting Company Share (as defined in the Acquisition Agreement), no less than: 70% of the sum of (1) the aggregate amount of the Credit Facilities outstanding on the Closing Date (but excluding (i) an aggregate amount not to exceed $10 million of gross proceeds of any revolving loans borrowed on the Closing Date to fund working capital needs (including any working capital payments or adjustments under the Acquisition Agreement), (ii) revolving loans drawn on the Closing Date to cash collateralize existing letters of credit outstanding on the Closing Date and/or (iii) letters of credit issued on the Closing Date to backstop or replace existing letters of credit outstanding on the Closing Date) plus (2) the equity capitalization of Holdings and its subsidiaries on the Closing Date after giving effect to the Transactions; provided that, on the Closing Date, Sponsor shall own, directly or indirectly (including through one or more LP co-invest vehicles managed by Sponsor), more than 50% of the issued and outstanding voting stock of Holdings.

 

b)

Pursuant to that certain Agreement and Plan of Merger, dated as of the Original Commitment Letter Date, by and among Oranje Merger Sub, Inc., a Delaware corporation (“Merger Sub”), Borrower, the Company and certain other parties thereto (together with all exhibits, schedules and disclosure letters thereto, collectively, as amended, restated, modified, supplemented, consented to or waived in accordance with paragraph 1 of Exhibit C, the “Acquisition Agreement”), Merger Sub will merge with and into the Company, with the Company as the surviving entity (the “Merger”). Immediately following the Merger, Borrower shall be the direct parent of the Company and Holdings shall be the direct parent of the Borrower.

 

c)

Borrower will obtain the Credit Facilities described in Exhibit B to the Commitment Letter, which will include (i) a senior secured term loan facility denominated in dollars in an aggregate principal amount of $1,000.0 million (the “Term Facility”), and (ii) a senior secured revolving credit facility in an aggregate principal amount equal to $125.0 million (the “Revolving Facility” and, together with the Term Facility, the “Credit Facilities”). The date on which the Term Facility is initially funded and the Revolving Facility is made available is herein referred to as the “Closing Date”.

 

Exhibit A-1


d)

The Company will repay in full (directly or indirectly) any outstanding loans under that certain Credit Agreement, dated as of March 12, 2021, among, inter alia, the Company, certain subsidiaries of the Company, as guarantors, the lenders party thereto and Bank of America, N.A., as administrative agent (as amended, restated, supplemented or otherwise modified from time to time, the “Existing Credit Agreement”), and all commitments under the Existing Credit Agreement shall be terminated and any security interests and guarantees in connection therewith shall be terminated and/or released (the “Refinancing”).

 

e)

The proceeds of the Equity Contribution and the Credit Facilities borrowed on the Closing Date will be applied (i) to pay the consideration in connection with the Acquisition and any other payments contemplated by the Acquisition Agreement, (ii) to pay the fees and expenses incurred in connection with the Transactions, (iii) to pay for the Refinancing (the amounts set forth in clauses (i) through (iii) above, collectively, the “Acquisition Costs”) and (iv) for working capital and general corporate purposes (including for the avoidance of doubt payments in respect of RSUs, PSUs and options).

The transactions described above (including the payment of the Acquisition Costs) are collectively referred to herein as the “Transactions”.

 

 

Exhibit A-2


EXHIBIT B

Project Orange

$1,000.0 Million Term Facility

$125.0 Million Revolving Facility

Summary of Principal Terms and Conditions1

 

Borrower:

  

Oranje Holdco, LLC (the “Borrower”); provided that the Borrower may, in its sole discretion, designate one or more of its direct or indirect wholly-owned subsidiaries organized in any jurisdiction within the United States of America or any other jurisdiction to be mutually agreed between the initial Borrower and the Administrative Agent as co-borrowers (as applicable, jointly and severally, the “Borrower”).

Transactions:

  

As set forth in Exhibit A to the Commitment Letter.

Administrative Agent and Collateral Agent:

  

Owl Rock Capital Corporation will act as sole administrative agent and sole collateral agent (in such capacities, the “Administrative Agent”) for the Lenders, and will perform the duties customarily associated with such roles.

Lead Arrangers and Bookrunners:

  

Each of Owl Rock Capital Advisors LLC, Monroe Capital Management Advisors, LLC, Fortress Credit Corp., VCP Capital Markets, LLC, Blackstone Alternative Credit Advisors LP, HPS Investment Partners, LLC, Oaktree Capital Management, L.P. and Carlyle Global Credit Investment Management, L.L.C. will act as a joint lead arranger and joint bookrunner (other than Blackstone) for the Credit Facilities, and will perform the duties customarily associated with such roles (other than Blackstone); provided that Borrower and the Sponsor shall have the right, on the terms set forth in the Commitment Letter, to appoint other financial institutions and other institutional lenders and investors as additional joint lead arrangers, joint bookrunners, managers, co-managers or co-agents. For the avoidance of doubt, Blackstone shall not provide the services customarily associated with the role of Lead Arranger.

Lenders:

  

The Initial Lenders and any other banks, financial institutions and other institutional lenders and investors that become party to the Credit Facilities Documentation pursuant to the relevant assignment terms and conditions contained under the heading “Assignments and Participations” below (the “Lenders”)

Credit Facilities:

  

(A)  A senior secured term loan facility denominated in dollars (the “Term Facility”) in an aggregate principal amount of $1,000.0 million (the loans thereunder, the “Term Loans”).

 

1 

All capitalized terms used but not defined herein shall have the meaning given them in the Commitment Letter to which this Term Sheet is attached, including Exhibits A and C thereto.

 

Exhibit B-1


  

(B)  A senior secured revolving credit facility denominated in dollars (the “Revolving Facility” and, together with the Term Facility, the “Credit Facilities”) in an aggregate principal amount equal to $125.0 million. Lenders with commitments under the Revolving Facility are collectively referred to as “Revolving Lenders” and the loans thereunder, are collectively referred to as “Revolving Loans”; and together with the Term Loans, the “Loans”.

Purpose:

  

(A)  The proceeds of borrowings under the Term Facility will be used by the Borrower on the Closing Date, together with any proceeds from permitted borrowings under the Revolving Facility, the proceeds from the Equity Contribution and cash on hand at Holdings, the Company and their respective subsidiaries, to pay the Acquisition Costs.

  

(B)  The letters of credit and proceeds of Revolving Loans will be used by Holdings and its restricted subsidiaries (i) after the Closing Date, for working capital, capital expenditures, other general corporate purposes (including, the financing of permitted acquisitions, other permitted investments, working capital and/or purchase price adjustments (including, without limitation, in connection with the Acquisition), prepayments of Specified Indebtedness and related fees and expenses, and permitted dividends and other distributions) and any other use not prohibited by the Credit Facilities Documentation, and (ii) on the Closing Date as set forth below under “Availability”.

Availability:

  

(A)  The Term Facility will be available in a single drawing on the Closing Date. Amounts borrowed under the Term Facility that are repaid or prepaid may not be reborrowed.

  

(B)  The Revolving Facility (exclusive of letter of credit usage) will be made available on the Closing Date (i) to finance the Acquisition Costs, (ii) to cash collateralize existing letters of credit, (iii) for working capital and for general corporate purposes, and/or (iv) to finance purchase price adjustments under the Acquisition Agreement (including with respect to the amount of all cash, cash equivalents, marketable securities and working capital to be acquired); provided that the sum of all amounts borrowed under the foregoing clauses (i), (iii) and (iv) on the Closing Date shall not exceed, collectively, $25.0 million. Additionally, letters of credit may be issued on the Closing Date in order to, among other things, backstop

 

Exhibit B-2


  

or replace letters of credit outstanding on the Closing Date under facilities no longer available to the Company or its subsidiaries as of the Closing Date, and letters of credit issued under such facilities that are no longer available may be “rolled over” into the Revolving Facility on the Closing Date. Otherwise, letters of credit and Revolving Loans will be available at any time prior to the final maturity of the Revolving Facility, in minimum face amounts to be agreed upon; provided that the Revolving Facility will be subject to notice provisions consistent with the Documentation Principles. Amounts repaid under the Revolving Facility may be reborrowed.

Defaulting Lenders:

  

The Credit Facilities Documentation shall contain defaulting lender provisions consistent with the Documentation Principles.

Letters of Credit:

  

$25.0 million of the Revolving Facility will be available to the Borrower for the purpose of issuing standby letters of credit denominated in dollars to support obligations of Holdings and its subsidiaries. Letters of credit under the Revolving Facility will be issued by certain Revolving Lenders (or third parties on their behalf) that agree to act as an issuing bank and are reasonably acceptable to the Borrower and the Administrative Agent (each an “Issuing Bank”), as set forth in the Credit Facilities Documentation, consistent with the Documentation Principles.

Incremental Facilities:

  

The Credit Facilities Documentation will permit the Borrower to add one or more incremental term loan facilities, or to increase any existing term loan facility, under the Credit Facilities Documentation (each, an “Incremental Term Facility”) and/or increase commitments under the Revolving Facility (any such increase, an “Incremental Revolving Increase”) and/or add one or more incremental revolving credit facility tranches (each an “Incremental Revolving Facility”; the Incremental Term Facilities, the Incremental Revolving Increases and the Incremental Revolving Facilities are collectively referred to as “Incremental Facilities”) in (a) an aggregate amount of up to (1) prior to a Covenant Conversion, $163.0 million, and (2) on and after a Covenant Conversion, the greater of $163.0 million and 100% of Consolidated EBITDA (as defined below) for the most recently completed 4 fiscal quarter period for which financial statements have been or were required to have been delivered (the “Test Period”) prior to the date of incurrence of such Incremental Facility (or, in the event such facility is incurred in connection with a Limited Condition Transaction, the LCT Test Date rather than such date of incurrence if elected by the Borrower), minus the aggregate principal amount of any

 

Exhibit B-3


  

Incremental Equivalent Debt incurred on or prior to the date thereof in reliance on this clause (after giving effect to any reclassification of any such Incremental Equivalent Debt as incurred under the Incremental Incurrence Test) or the aggregate principal amount of any available capacity that was reallocated to the Ratio Debt Basket or Acquisition Debt Basket pursuant to the Fixed Incremental Reallocation Provision (as each such term is defined below), plus (b) the aggregate principal amount of all voluntary prepayments (or redemptions), debt buybacks (in an amount equal to the purchase price paid in respect of such repurchased indebtedness and with respect to debt buybacks of Term Loans or Incremental Term Facilities, to the extent such buyback is offered to all similarly situated Lenders), payments utilizing the yank-a-bank provisions (to the extent such debt is retired or repaid rather than assigned) and permanent commitment reductions of the Credit Facilities, any Incremental Facility, Incremental Equivalent Debt or Refinancing Facility, in each case (x) to the extent secured on a pari passu basis with the Secured Obligations, (y) to the extent not financed with long term indebtedness (other than revolver draws and intercompany debt) and (z) if any such facility is a revolving facility, to the extent accompanied by a corresponding permanent reduction in the commitments thereunder (clauses (a) plus (b), the “Unrestricted Incremental Amount”), plus (c) unlimited additional amounts so long as on a pro forma basis after giving effect to the incurrence of any such Incremental Facility pursuant to this clause (c) (assuming the full amount of any Incremental Revolving Facility concurrently established in reliance on this clause (c) is drawn) and after giving effect to any acquisition consummated concurrently or in connection therewith, any indebtedness repaid with the proceeds thereof, and any other acquisition, disposition, debt incurrence, debt retirement and other appropriate pro forma adjustments but without, for the avoidance of doubt, giving effect to any amount incurred substantially concurrently or in connection therewith, or in a series of related transactions therewith, under the Unrestricted Incremental Amount or any other fixed dollar basket or the Revolving Facility (but otherwise excluding the cash proceeds of any Incremental Facilities or other debt incurred substantially concurrently or in connection therewith, from cash and cash equivalents), (1) in the case of an Incremental Facility incurred on or prior to a Covenant Conversion, the LQA Recurring Revenue Leverage Ratio (as defined below) shall not exceed 2.67 to 1.00, or (2) in the case of an Incremental Facility incurred after a Covenant Conversion and (x) secured on a pari passu basis with the Secured Obligations, the Total Leverage Ratio (as defined below) shall not exceed 7.00 to 1.00, (y) secured on a junior basis to the Secured Obligations, the Total Leverage Ratio shall not

 

Exhibit B-4


  

exceed 7.25 to 1.00, or (z) unsecured, the Total Leverage Ratio shall not exceed 7.50 to 1.00 (in each case with Consolidated EBITDA calculated for the most recently ended Test Period prior to, and cash and cash equivalents calculated as of, the date of the incurrence of such Incremental Facility (or, if such facility is incurred in connection with a Limited Condition Transaction, the LCT Test Date rather than such date of incurrence)) (provided that (1) the Borrower may elect that the loans or commitments be incurred under one or more of the Unrestricted Incremental Amount and the Incremental Incurrence Test in its sole discretion (and, if no election is made, such loans will be incurred pursuant to the Incremental Incurrence Test if and to the extent such basket is available), (2) if loans or commitments are intended to be incurred under the Incremental Incurrence Test and the Unrestricted Incremental Amount and/or any other Fixed Amount in a single transaction or series of related transactions, (x) incurrence of the portion of such loans or commitments to be incurred under the Incremental Incurrence Test shall first be calculated without giving effect to any loans or commitments to be incurred under the Unrestricted Incremental Amount or any other Fixed Amount, but giving full pro forma effect to the use of proceeds of all such loans and commitments and related transactions, and (y) thereafter, incurrence of the portion of such loans or commitments to be incurred under the Unrestricted Incremental Amount shall be calculated and (3) any portion of any Incremental Facility incurred under the Unrestricted Incremental Amount shall be automatically reclassified at any time, unless otherwise elected by the Borrower, as incurred under the Incremental Incurrence Test if the Borrower meets the applicable leverage (or coverage) ratio under the Incremental Incurrence Test on a pro forma basis at any time subsequent to the incurrence of such Incremental Facility (this clause (3), the “Incremental Reclassification Provision”)) (this clause (c), the “Incremental Incurrence Test”); provided that:

  

(i) the Incremental Facilities (x) shall not be guaranteed by any person other than the Guarantors under the Credit Facilities and (y) shall be secured on a pari passu basis with, or on a junior basis to, the Credit Facilities or shall be unsecured,

  

(ii)(A) no event of default (in connection with a Limited Condition Transaction, no payment or bankruptcy event of default) under the Credit Facilities Documentation has occurred and is continuing or would exist after giving effect thereto (tested, in the case of a Limited Condition Transaction, on the LCT Test Date rather than the date of incurrence), and (B) solely if and to the extent required by the lenders providing such Incremental Facility, the representations and

 

Exhibit B-5


  

warranties in the Credit Facilities Documentation (to be limited in any case to the Specified Representations, in the case of an Incremental Facility used to finance a Permitted Acquisition, other permitted investment or Limited Condition Transaction) shall be true and correct in all material respects (or in all respects if already qualified by materiality) on and as of the date of the incurrence of any Incremental Facility (or, if such facility is incurred in connection with a Limited Condition Transaction, the LCT Test Date rather than such date of incurrence) (although any representations and warranties that expressly relate to a given date or period shall be required only to be true and correct in all material respects (or in all respects if already qualified by materiality) as of the respective date or for the respective period, as the case may be), subject to (1) customary “SunGard” limitations or (2) with respect to any UK or similar European “certain funds” transaction, to conditionality customary for such transactions, in each case to the extent the proceeds of such Incremental Facility are being used to finance a Limited Condition Transaction,

  

(iii) the maturity date of any Incremental Term Facility shall be no earlier than the maturity date of the Term Facility and the weighted average life to maturity of such Incremental Term Facility shall not be shorter than the then remaining weighted average life to maturity of the Term Facility (without giving effect to any prepayments) (provided that the foregoing requirements in this clause (iii) shall not apply to any Incremental Facility consisting of a customary bridge facility, so long as the long-term debt into which any such customary bridge facility is to be converted or exchanged satisfies such requirements), and the maturity date of any Incremental Revolving Facility shall be no earlier than the maturity date of the Revolving Facility and such Incremental Revolving Facility shall require no scheduled amortization or mandatory commitment reduction prior to the final maturity of the Revolving Facility,

  

(iv) in the case of an Incremental Revolving Increase, the maturity date of such Incremental Revolving Increase shall be the same as the maturity date of the Revolving Facility, such Incremental Revolving Increase shall require no scheduled amortization or mandatory commitment reduction prior to the final maturity of the Revolving Facility, and such Incremental Revolving Increase shall be on the exact same terms and pursuant to the exact same documentation applicable to the Revolving Facility being increased (it being understood that, if required to consummate an Incremental Revolving Increase, the pricing, interest rate margins, rate floors and undrawn fees on the Revolving Facility being increased may be increased for all Revolving Lenders under the Revolving

 

Exhibit B-6


  

Facility being increased, and additional upfront or similar fees may be payable to the Lenders participating in the Incremental Revolving Increase without any requirement to pay such amounts to any Revolving Lenders that do not participate in such increase),

  

(v) the pricing, interest rate margins, discounts, premiums, rate floors, fees and (subject to clauses (iii) and (iv) above) maturity and amortization schedule applicable to any Incremental Facility shall be determined by the Borrower and the lenders thereunder; provided that, unless waived by the Required Lenders, in the event that the effective yield on any such Incremental Term Facility secured on a pari passu basis (in security and right of payment) with the Secured Obligations is higher than the effective yield on the Term Facility by more than 50 basis points, then, solely to the extent Lenders holding more than 50% of the aggregate amount of the Term Loans have not waived the provisions of this clause (v), the interest rate margins for such Term Loans shall be increased to the extent necessary so that the effective yield on the Term Loans is equal to the effective yield on such Incremental Term Facility minus 50 basis points; provided further that, in determining the effective yield on any Incremental Term Facility and any Term Loans, (x) customary arrangement, commitment, structuring, underwriting, ticking, unused line and amendment fees paid or payable to the lead arrangers (or their affiliates) in their respective capacities as such in connection with the applicable facility (regardless of whether such fees are paid to or shared in whole or in part with any lender) and any other fees that are not generally paid to all lenders (or their respective affiliates) ratably with respect to any such facility and that are paid or payable in connection with any such facility shall be excluded, (y) original issue discount (“OID”) and upfront fees (which shall be deemed to constitute like amounts of OID) paid and payable to the lenders thereunder shall be included (with OID and upfront fees being equated to interest based on an assumed four-year life to maturity without any present value discount or, if less, the remaining life to maturity) and (z) to the extent that SOFR for a three month interest period on the closing date of any such Incremental Term Facility (A) is less than 1.00%, the amount of such difference shall be deemed added to the interest margin for the applicable existing Term Loans, solely for the purpose of determining whether an increase in the interest rate margins for the applicable existing Term Loans shall be required and (B) is less than the interest rate floor, if any, applicable to any such Incremental Term Facility, the amount of such difference shall be deemed added to the interest rate margins for the loans under such Incremental Term Facility solely for such purpose (provided that, to the extent any increase in interest

 

Exhibit B-7


  

rate margin would be required pursuant to the foregoing provisions, solely on account of clause (B) immediately above, such increase shall be effected solely by way of an increase in the SOFR floor instead of an increase in the applicable margin) (all adjustments made pursuant to this clause (v), the “MFN Adjustment”),

 

(vi) any Incremental Term Facility that is pari passu in right of payment and security with the Term Loans shall share ratably or less than ratably in any voluntary prepayment and any mandatory prepayments of the Term Facility,

 

  

(vii) any Incremental Facility may rank junior in right of security to the Term Facility and/or the Revolving Facility or be unsecured, in which case, the Incremental Facility pursuant to which such incremental term loans or incremental revolving commitments are extended will be established as a separate facility from the then existing Credit Facilities; provided that such separate facility does not mature (and does not require any mandatory redemptions, sinking funds or similar payments or offers to purchase (excluding customary asset sale and change of control provisions and similar provisions and, if applicable, AHYDO catch-up payments)) on or prior to the final stated maturity date of, or have a shorter weighted average life to maturity than, loans under any existing Term Facility or Incremental Term Facility (in the case of an Incremental Term Facility) or any existing Revolving Facility or Incremental Revolving Facility (in the case of an Incremental Revolving Facility) (provided that the foregoing requirements in this clause (vii) shall not apply to any Incremental Facility consisting of a customary bridge facility, so long as the long-term debt into which any such customary bridge facility is to be converted or exchanged satisfies such requirements),

  

(viii) any Incremental Facility shall be on terms and pursuant to documentation to be determined by the Borrower and the lenders thereunder; provided that, to the extent such terms and documentation are not consistent with the Term Facility or the Revolving Facility, as the case may be, they shall (except to the extent permitted by clause (iii), (iv), (v), (vi) or (vii) above) be reasonably satisfactory to the Administrative Agent (except for covenants or other provisions applicable only to periods after the latest maturity date of the applicable Credit Facility or Incremental Facility) (it being understood that no consent shall be required from the Administrative Agent for terms or conditions if the Lenders under the initial Term Facility or Revolving Facility, as applicable, receive the benefit of such terms or conditions through their addition to the Credit Facilities Documentation), and

 

Exhibit B-8


  

(ix) in no event shall the aggregate principal amount of all Incremental Revolving Increases and Incremental Revolving Facilities exceed $30.0 million.

 

Any Incremental Facility may be provided by existing Lenders and/or, subject to the consent (not to be unreasonably withheld, delayed or conditioned) of the Administrative Agent (and, in the case of any Incremental Revolving Facility and each Issuing Bank), and subject to the final proviso of this paragraph, other persons constituting eligible assignees who become Lenders in connection therewith if such consent would be required under the heading “Assignments and Participations” below for assignments or participations of Loans or commitments, as applicable, to such person; provided that no existing Lender will be obligated to provide any such Incremental Facility; provided further, that existing Lenders shall first be offered the opportunity to participate in any Incremental Facility (for the avoidance of doubt, prior to any persons not constituting an existing Lender) (such offer, a “ROFO”), with rights of first refusal consistent with the right set forth in the Documentation Precedent.

 

The proceeds of any Incremental Facility may be used for working capital needs and other general corporate purposes (including capital expenditures, acquisitions and investments, working capital and/or purchase price adjustments, restricted payments, prepayments of Specified Indebtedness and related fees and expenses) and for any other purpose not prohibited by the Credit Facilities Documentation.

Incremental Equivalent Debt:

  

The Credit Facilities Documentation will permit the Borrower to issue or incur senior or subordinated notes (issued in a public offering, Rule 144A offering or other private placement or a bridge financing) or loans (including, for the avoidance of doubt, revolving loans) (such notes or loans, “Incremental Equivalent Debt”) in lieu of Incremental Facilities, that are unsecured or secured on a pari passu basis with, or on a junior basis to, the Credit Facilities, if the Borrower could establish such Incremental Equivalent Debt under the Unrestricted Incremental Amount or satisfy the Incremental Incurrence Test were such Incremental Equivalent Debt an Incremental Facility; provided that:

 

(i) the incurrence of such Incremental Equivalent Debt shall (solely to the extent incurred in reliance on the Unrestricted Incremental Amount) result in a dollar-for-dollar reduction of the amount of indebtedness that may be in incurred under the Unrestricted Incremental Amount in respect of the Incremental Facilities,

 

Exhibit B-9


  

(ii) no event of default under the Credit Facilities Documentation has occurred and is continuing or would exist immediately after giving effect thereto; provided that in the case of any Incremental Equivalent Debt incurred in connection with a Limited Condition Transaction, instead the requirement shall be that no payment or bankruptcy event of default shall have occurred and be continuing on the LCT Test Date, and

 

(iii) such Incremental Equivalent Debt shall be subject to (x) the Required Debt Terms (to be defined in a manner consistent with the Documentation Principles) and (y) the ROFO (to the same extent as an Incremental Facility).

 

Conditions precedent related to the absence of defaults (other than payment or bankruptcy defaults) will be waivable by the requisite lenders in respect of any Incremental Facility or any Incremental Equivalent Debt in connection with Limited Condition Transactions.

 

Incremental Equivalent Debt in the form of term loans secured on a pari passu basis (in security and right of payment) with the Secured Obligations shall be subject to the MFN Adjustment to the same extent it would be subject to the MFN Adjustment if it were an Incremental Facility.

 

Consolidated EBITDA” shall be defined in a manner substantially identical to the Documentation Principles; provided that, without limitation, there shall be add-backs for (i) pro forma cost savings, “run rate” synergies (excluding revenue synergies), expense reductions, other operational changes, improvements, optimizations, initiatives, synergies and cost savings in connection with (A) acquisitions (including the commencement of activities constituting such business) or investments, (B) dispositions (including the termination or discontinuance of activities constituting such business) of business entities or properties or assets, constituting a division or line of business of any business entity, division or line of business and/or (C) other operational changes, improvements, optimizations, actions or initiatives (including, to the extent applicable, from the Transactions or any restructuring), in each case, to the extent consistent with the Documentation Principles and so long as projected by the Borrower to result from action either taken or expected to be taken within 24 months following the Transactions or such other acquisition, investment, disposition, discontinuance, operational change, improvement, optimization, action and/or initiative, et al.; provided, that add-backs pursuant to this clause (i) shall not exceed 25.0% of Consolidated EBITDA (prior to giving effect to all such adjustments) for any test period, (ii) items consistent with Regulation S-X of the SEC,

 

Exhibit B-10


  

(iii) items set forth in a quality of earnings report made available to the Administrative Agent and prepared by financial advisors that are (A) nationally recognized or (B) reasonably acceptable to the Administrative Agent (it being understood and agreed that any of the “Big Four” accounting firms are acceptable), (iv) items contained in the Sponsor Model and (v) the net amount, if any, by which consolidated short-term deferred revenues increased or decreased; provided, further, that there shall be a deduction for capitalized software development costs, capitalized sales commissions costs and capitalized content costs (in each case, to the extent such costs are not already deducted in the calculation of consolidated net income and without duplication).

  

Consolidated Total Funded Indebtedness” means, with respect to Holdings and its restricted subsidiaries, the outstanding principal amount of third-party funded indebtedness for borrowed money, letters of credit (to the extent of any drawn but unreimbursed amounts thereunder), purchase money indebtedness and the principal portion of capital leases of Holdings and its restricted subsidiaries; provided, that Consolidated Total Funded Indebtedness shall exclude, without limitation, any hedging obligations, operating lease obligations, undrawn Letters of Credit, earnout obligations to the extent not then due and payable or if not recognized as debt on balance sheet in accordance with GAAP, and other exceptions to be mutually agreed.

 

LQA Recurring Revenues” shall mean, at any date of determination, the product of (a) Recurring Revenues for the most recently ended fiscal quarter for which financial statements have been delivered to the Administrative Agent and the Lenders (or such other period consistent with the Documentation Principles), multiplied by (b) four.

 

LQA Recurring Revenue Leverage Ratio” shall mean, at any date of determination, the ratio of (a)(i) Consolidated Total Funded Indebtedness of Holdings and its restricted subsidiaries on such date minus (ii) Unrestricted Cash, to (b) LQA Recurring Revenues of Holdings and its restricted subsidiaries as of such date.

 

Recurring Revenues” shall mean revenue related to contractual subscription agreements (inclusive of licenses, maintenance, hosting, trainings and content), term license revenue and maintenance attributable to Holdings or any of its Restricted Subsidiaries (excluding, for the avoidance of doubt, any professional services revenue or non-recurring revenue), which recurring revenues are earned during such period net of any discounts, calculated on a basis consistent with the financial statements delivered to the Administrative Agent prior to the Closing Date; provided that for purposes of determining “Recurring Revenues”, the impact of any purchase accounting adjustments shall be disregarded.

 

Exhibit B-11


  

Unrestricted Cash” shall mean, at any time, the aggregate amount of unrestricted cash and cash equivalents held in accounts of Holdings and its restricted subsidiaries (whether or not held in an account pledged to the Administrative Agent) that is free and clear of all liens other than (i) liens created by the Credit Facilities Documentation or (ii) other liens permitted thereunder; provided that any such liens are subordinated to or pari passu with the liens in favor of the Administrative Agent; provided further, that only amounts in excess of the amount necessary to satisfy restricted stock units, performance stock units or options granted under equity plans (including any payroll taxes in connection therewith) that, in each case, were unvested as of the Closing Date and remain unpaid as of any applicable date of determination (the amount thereof, the “PSU/RSU Reserve Amount”) shall be deemed to be “Unrestricted Cash.”

 

Senior Secured Leverage Ratio” shall mean, at any date of determination, the ratio of (i)(y) Consolidated Total Funded Indebtedness that is secured by a lien on all or substantially all of the Collateral minus (z) Unrestricted Cash of Holdings and its restricted subsidiaries on such date, to (ii) Consolidated EBITDA for such Test Period.

 

Total Leverage Ratio” shall mean, at any date of determination, the ratio of (i)(y) Consolidated Total Funded Indebtedness of Holdings and its restricted subsidiaries on such date minus (z) Unrestricted Cash of Holdings and its restricted subsidiaries on such date, to (ii) Consolidated EBITDA for such Test Period.

Refinancing Facilities:

  

The Credit Facilities Documentation will permit refinancing facilities (“Refinancing Facilities”) consistent with those set forth in the Documentation Precedent.

Guarantees:

  

The Credit Facilities Documentation shall contain provisions regarding guarantees (including limitations and exclusions with respect thereto) consistent with the Documentation Principles; provided, that, for the avoidance of doubt the “Guarantors” shall exclude both CFCs and any other non-domestic subsidiaries, except to the extent the Borrower, in its sole discretion, elects to cause such subsidiaries (or, for the avoidance of doubt, such other Excluded Subsidiaries) (including without limitation non-U.S. subsidiaries organized in any jurisdiction with the consent of the Administrative Agent (which shall not be unreasonably withheld or delayed)) to become Guarantors pursuant to terms consistent with the Documentation Principles.

 

Exhibit B-12


Security:

  

The Credit Facilities Documentation shall contain provisions regarding security (including limitations and exclusions with respect thereto) consistent with the Documentation Principles; provided, that there shall be no limitation on the aggregate amount of Hedging/Cash Management Arrangements that may be secured under the Credit Facilities Documentation and “Collateral” shall exclude any equity interests issued by any non-first tier CFC or Domestic Foreign Holding Company and Excluded Subsidiaries not owned directly by a Guarantor. No prior written notice for exercises of remedies with respect to equity interests shall be required in the case of a payment event of default.

Final Maturity and Amortization:

  

(A)  Term Facility

 

The entire unpaid and outstanding principal amount of the Term Facility will be payable on the date that is six years after the Closing Date; provided that the Credit Facilities Documentation shall provide the right for individual Lenders to agree to extend the maturity date of their outstanding Term Loans upon the request of the Borrower and without the consent of any other Lender (and as further described below). The Term Facility will not amortize.

 

(B)  Revolving Facility

 

The Revolving Facility will mature, and lending commitments thereunder will terminate, on the date that is six years after the Closing Date; provided that the Credit Facilities Documentation shall provide the right of individual Lenders to agree to extend the maturity of their commitments under the Revolving Facility upon the request of the Borrower and without the consent of any other Lender (and as further described below), subject to limitations consistent with the Documentation Principles.

 

Notwithstanding anything to the contrary set forth herein, the Credit Facilities Documentation shall provide that the Borrower may at any time and from time to time request that all or a portion of any commitments and/or loans of the Borrower be converted to extend any commitments and/or the scheduled maturity date(s) of any payment of principal with respect to all or a portion of such loans (any such commitments or loans that have been so converted, “Extended Loans”), and upon such request of the Borrower any individual Lender shall have the right to agree to extend the maturity date of its commitments under the Revolving Facility and its outstanding Revolving Loans and/or Term

 

Exhibit B-13


  

Loans without the consent of any other Lender; provided that all such requests shall be made pro rata to all Lenders within the applicable relevant class. The terms of Extended Loans shall be substantially similar to the loans of the existing class from which they are converted, except for interest rates, fees, amortization (which may result in a longer (but not shorter (without giving effect to any prepayments)) weighted average life than the existing class), final maturity date (which may be no earlier than the existing class), optional and mandatory prepayments, prepayment premiums and certain other customary provisions to be agreed, each of which shall be as agreed by the Borrower and the lenders providing such Extended Loans (with, for the avoidance of doubt, no required consent of any other lender). Extended Loans shall not be subject to any “default stopper”, financial tests, minimum extension conditions or “most favored nation” pricing provisions.

Interest Rates and Fees:

  

As set forth on Annex I hereto.

Default Rate:

  

Subject to applicable law, during the continuance of any payment or bankruptcy event of default under the applicable Credit Facilities Documentation, with respect to overdue principal and interest, at the applicable interest rate plus 2.00% per annum, which shall be payable on demand.

Mandatory Prepayments:

  

Subject to thresholds, deductions (including dollar-for-dollar deductions), reinvestment rights and exceptions consistent with the Documentation Principles, loans under the Term Facility shall be prepaid with:

 

a)  commencing with the fiscal year in which a Covenant Conversion occurs within fifteen (15) business days after the due date for the annual audited financial statements for such fiscal year, 50% of excess cash flow if the Total Leverage Ratio is greater than 6.25 to 1.00, 25% of excess cash flow if the Total Leverage Ratio is greater than 5.75 to 1.00 but less than or equal to 6.25 to 1.00 and 0% of excess cash flow if the Total Leverage Ratio is less than or equal to 5.75 to 1.00, in each case, determined on a pro forma basis after giving effect to such prepayment and other cash expenditures or anticipated cash expenditures in accordance with Documentation Precedent;

 

b)  within ten (10) business days after receipt thereof, 100% of the net cash proceeds of certain non-ordinary course asset sales or other dispositions of property by restricted subsidiaries of Holdings (including insurance and condemnation proceeds) subject to exceptions to be agreed (including an exception for de minimis dispositions that do not exceed $9 million in the aggregate

 

Exhibit B-14


  

per transaction (or series of transactions) and an exception for dispositions that do not exceed $18 million in any fiscal year, with only the amount in excess of such de minimis threshold and such annual limit required to be used to prepay the Term Loans) and, so long as no payment or bankruptcy event of default shall have occurred and be continuing, subject to the right to reinvest 100% of such proceeds, if such proceeds (the “Reinvestment Proceeds”) are reinvested in the business of Holdings and its subsidiaries, including, without limitation, in permitted acquisitions, investments and/or capital expenditures (or committed to be so reinvested) within 12 months and, if so committed to be reinvested, so long as such reinvestment is actually completed within 180 days after the end of such 12 month period (the “Reinvestment Period”), and other exceptions to be set forth in the Credit Facilities Documentation; and

 

c)  within five (5) business days after receipt thereof (or concurrently with the receipt thereof in the case of any Refinancing Facilities), 100% of the net cash proceeds of issuances of debt obligations of Holdings and its restricted subsidiaries after the Closing Date (excluding debt permitted under the Credit Facilities Documentation but including Refinancing Facilities).

 

Within the Term Facility, mandatory prepayments shall be applied to the remaining outstanding principal of the Term Facility.

 

Notwithstanding the foregoing, the Credit Facilities Documentation will provide that, in the event that any Incremental Facility, any Incremental Equivalent Debt or any Refinancing Facility in respect of any Term Loans or any other indebtedness, in each case secured by liens on the Collateral ranking on a pari passu basis (without regard to the control of remedies) with the Credit Facilities, shall be issued or incurred, such indebtedness may share on a pro rata basis or less than pro rata basis in any mandatory prepayments with respect to the Term Facility, in each case other than with respect to proceeds of Refinancing Facilities required to prepay the Term Loans or Incremental Term Facilities, as applicable.

 

Any Lender under the Term Facility may elect not to accept its pro rata portion of any mandatory prepayment under clause (a) or (b) above (each a “Declining Lender” and the proceeds declined under the applicable facility, “Declined Proceeds”). Any prepayment amount declined by a Declining Lender may be retained (or applied as directed) by the Borrower and shall increase the Cumulative Amount (as defined below).

 

Exhibit B-15


  

The Loans under the Revolving Facility shall be prepaid and/or the letters of credit issued thereunder cash collateralized to the extent such extensions of credit exceed the amount of the commitments under the Revolving Facility.

 

Mandatory prepayments from foreign subsidiaries’ Excess Cash Flow and net cash proceeds (other than pursuant to any debt incurrence) will be subject to customary limitations under the Credit Facilities Documentation to the extent such prepayments or the obligation to make such prepayments (including the repatriation of cash in connection therewith) (a) could reasonably be expected to be prohibited, delayed or restricted by applicable law, rule or regulation (including, without limitation, relating to financial assistance, corporate benefit, thin capitalization, capital maintenance and similar legal principles, restrictions on upstreaming of cash intra-group and fiduciary and statutory duties of the directors of the relevant subsidiaries) or material constituent document restrictions (including as a result of minority ownership by third parties) and other material agreements (so long as any such prohibition is not created in contemplation of such prepayment) (provided that restricted subsidiaries of Holdings shall use commercially reasonable efforts (for a period not to exceed one year from the date of the event or calculation giving rise to such repatriation requirement, and subject to the considerations above and as determined in the Borrower’s reasonable business judgment) available under local law to permit such repatriation) or (b) could reasonably be expected to result in adverse tax consequences that are not de minimis (including any withholding tax) to Holdings or any of its restricted subsidiaries or its direct or indirect equityholders (as reasonably determined by the Borrower). The non-application of any prepayment amounts as a consequence of the foregoing provisions will not, for the avoidance of doubt, constitute a default or an event of default, and such amounts shall be available for working capital purposes of Holdings and its restricted subsidiaries as long as not required to be prepaid in accordance with the foregoing provisions. Notwithstanding the foregoing, any prepayments required after application of the above provisions shall be net of any costs, expenses or taxes incurred by the Borrower or any of their affiliates arising as a result of compliance with the proviso in clause (a) above.

Voluntary Prepayments and Reductions in Commitments:   

Voluntary reductions of the unutilized portion of the Revolving Facility commitments and voluntary prepayments of borrowings under the Credit Facilities will be permitted at any time in minimum principal amounts to be agreed upon, without premium or penalty other than as set forth below.

 

Exhibit B-16


  

All voluntary prepayments of the Term Facility (or any other facility, class or tranche of term loans, as determined by the Borrower in its sole discretion) and any Incremental Term Facilities will be applied to the remaining outstanding principal under the Term Facility (or one or more of such other facility, class or tranche of term loans, as determined by the Borrower in its sole discretion) or such Incremental Term Facility, as applicable, as directed by the Borrower, including to any class of extending or existing Loans.

Prepayment Premium:

  

In respect of the initial Term Facility, any voluntary prepayment (other than, for the avoidance of doubt, permitted assignments to a Restricted Affiliated Lender (to be defined in a manner to be agreed consistent with the Documentation Principles) or a Debt Fund Affiliate (to be defined in a manner to be agreed consistent with the Documentation Principles) (other than with respect to any assignments pursuant to any yank-a-bank or similar provisions) and non-prohibited debt buybacks and repurchases), mandatory prepayment pursuant to clause (c) under the heading “Mandatory Prepayments” above and any prepayment in connection with assignments pursuant to any yank-a-bank or similar provisions of the initial Term Facility, shall be subject to a prepayment premium of (x) prior to the first anniversary of the Closing Date, 3.00% of the principal amount of the initial Term Loans so prepaid, (y) on or after the first anniversary of the Closing Date, but prior to the second anniversary of the Closing Date, 2.00% of the principal amount so repaid or (z) on or after the second anniversary of the Closing Date, but prior to the third anniversary of the Closing Date, 1.00% of the principal amount so repaid (clauses, (x), (y) and (z), as applicable, the “Prepayment Premium”).

Documentation:

  

The definitive documentation for the Credit Facilities (the “Credit Facilities Documentation”) will be based on the Documentation Principles (as defined below).

 

As used in this Term Sheet, “Documentation Principles” means documentation substantially identical to (and, subject to the terms of this Commitment Letter, no less favorable to Holdings and its restricted subsidiaries than) that certain Credit Agreement, to be dated on or about October 19, 2022, by and among, inter alios, Lava MergerSub, Inc., as the initial borrower, Owl Rock Capital Corporation, as the administrative agent, and the lenders from time to time party thereto, and the related loan documents executed in connection with such credit agreement (as in effect on the closing date thereof, the “Documentation Precedent”),

 

Exhibit B-17


 

initially prepared by Kirkland & Ellis LLP, as counsel to the Credit Parties (as defined in the Documentation Precedent), giving due regard to operational and strategic requirements of Holdings and its subsidiaries in light of their size and capitalization and the Projections, and shall contain the terms set forth in this Exhibit B and the Documentation Precedent and be negotiated in good faith within a reasonable time period to be determined based on the expected Closing Date and taking into account the pre-closing requirements of the Acquisition Agreement. The Credit Facilities Documentation shall contain only those payments, conditions to closing and borrowing, mandatory prepayments, prepayment premiums, representations and warranties, affirmative, negative and financial covenants and events of default expressly set forth in the Term Sheet, in each case, applicable to the restricted subsidiaries of Holdings (and, where indicated, Holdings), and with standards, qualifications, thresholds, exceptions (including for materiality), “baskets” and grace and cure periods consistent with the Documentation Principles. The Credit Facilities Documentation will (i) include the Administrative Agent’s customary agency provisions and certain mechanical provisions not in contravention of anything specifically set forth in this Term Sheet (consistent with and reflective of the Administrative Agent’s customary requirements and practices), (ii) cure any mistakes or defects contained in the Documentation Precedent, (iii) include modifications to reflect any relevant changes in law or accounting standards since the date of the Documentation Precedent, (iv) provide that, notwithstanding the Documentation Precedent, in connection with the release of any Guarantor from its guarantee (including by virtue of being a non-wholly owned subsidiary), after giving pro forma effect to such release, the Borrower (or any applicable Guarantor owning such applicable restricted subsidiary) shall be automatically and immediately deemed to have made a new investment in such restricted subsidiary on the date of such release in an amount equal to the portion of the fair market value of the Borrower’s retained ownership in such restricted subsidiary and such investment must be permitted under the Credit Facilities Documentation or an immediate and automatic event of default shall result therefrom; provided, further, that the Credit Facilities Documentation shall provide that a Guarantor shall not be released as contemplated by this section (iv) if such release would be triggered solely as a result of such Guarantor becoming a majority owned and controlled, non-wholly owned restricted subsidiary unless such Guarantor becomes a majority owned and controlled, non-wholly owned subsidiary pursuant to a transaction that (x) has a bona fide business purpose and (y) is not undertaken for the primary purpose of effecting such release and (v) shall include “Serta” protections consistent with that set forth in the

 

Exhibit B-18


 

Documentation Precedent. To the extent that any representations and warranties made on, or as of, the Closing Date (or a date prior thereto) are qualified by or subject to “Material Adverse Effect”, for purposes of such representations and warranties, the definition thereof shall be “Company Material Adverse Effect” as defined in the Acquisition Agreement. Unless otherwise set forth herein, (i) dollar baskets will be set no lower than the implied amount based on relative Recurring Revenues on the Closing Date (or, solely to the extent a post-Conversion level is consistent with the Documentation Principles or otherwise agreed, implied amount based on relative EBITDA at the time of Covenant Conversion) and incurrence baskets will be set no lower than the implied levels based on relevant LQA Recurring Revenue Ratios as of the Closing Date or Total Leverage Ratios as of the Covenant Conversion Date, as applicable, in each case, as compared to the Documentation Precedent, (ii) certain dollar baskets shall include grower amounts based on Consolidated EBITDA post-Covenant Conversion to the extent not otherwise specified herein and to the extent consistent with the Documentation Precedent and, (iii) all incurrence-based baskets based on an LQA Recurring Revenue Leverage Ratio shall be calculated based on the LQA Recurring Revenue Leverage Ratio as of the Closing Date and all incurrence-based baskets based on Consolidated EBITDA shall be calculated based on implied EBITDA percentages as of the Covenant Conversion, (iv) certain baskets with annual caps rather than aggregate caps shall be subject to permitted carry-forwards to the extent consistent with the Documentation Principles, (v) all amounts incurred concurrently under baskets with Fixed Amounts (to be defined in the Credit Facilities Documentation) (including, for the avoidance of doubt, the Revolving Credit Facility; provided, that unless the Borrower elects to include Revolving Loans outstanding in the calculation of a ratio-based incurrence test, the cash proceeds of any such Revolving Loans shall be excluded from cash netting in connection with the calculation thereof) shall be excluded in the calculation of incurrence-based basket amounts and (vi) for the avoidance of doubt, all incurrence tests shall be tested net of Unrestricted Cash. For the avoidance of doubt, and notwithstanding anything to the contrary set forth herein, but in all cases subject to reclassification and reallocation between or among any applicable baskets as permissible pursuant to the terms hereof and the Documentation Principles, on and after the Covenant Conversion Date, when calculating capacity under any basket that (i) was partially utilized prior to the Covenant Conversion Date and (ii) is available in the same or any increased amount after the Covenant Conversion Date (such basket, a “Specified Basket”), such Specified Basket capacity after the Covenant Conversion Date shall be equal to the difference between the amount available after the Covenant Conversion Date and any amounts utilized pursuant thereto prior to the Covenant Conversion Date.

 

Exhibit B-19


Representations and Warranties:

 

Substantially consistent with the Documentation Precedent and, for the avoidance of doubt, to be limited, on the Closing Date, to the Specified Representations.

 

Material Adverse Effect” (a) means, on the Closing Date, a “Company Material Adverse Effect” (as defined in the Acquisition Agreement) and (b) after the Closing Date, shall have the meaning given such term in the Documentation Precedent.

Conditions to Initial Borrowing:

 

The availability of the initial borrowing and other extensions of credit under the Term Facility and the Revolving Facility on the Closing Date will be subject solely to (a) delivery of a customary borrowing notice and/or a letter of credit request (as applicable) (subject to the Certain Funds Provisions which, for the avoidance of doubt, means that such notice shall not include any representation or statement as to the absence (or existence) of any default or event of default or a bring-down of any representations and warranties) and (b) satisfaction (or waiver by all Commitment Parties) of the applicable conditions set forth in Exhibit C to the Commitment Letter.

Conditions to All Borrowings After the Closing Date:

 

The making of each extension of credit under the Credit Facilities after the Closing Date shall be conditioned upon (a) delivery of a customary borrowing notice and/or letter of credit request (as applicable), (b) the accuracy of representations and warranties in all material respects as of the date of the applicable extension of credit, except to the extent any such representation and warranty expressly relates to an earlier date, in which case such representation and warranty shall be required to be accurate in all material respects as of such earlier date (or in all respects if already qualified by materiality), and (c) the absence of defaults or events of default at the time of, or after giving effect to the making of, such extension of credit, subject to, in the case of clauses (b) and (c), the limitations set forth in the sections hereof entitled “Incremental Facilities” and “Limited Condition Transactions”, including to the extent the proceeds of any Incremental Term Facility are being used to finance a Limited Condition Transaction.

Affirmative Covenants:

 

The Credit Facilities Documentation shall contain provisions regarding affirmative covenants consistent with the Documentation Principles; provided, that, the Credit Facilities Documentation shall include post-closing covenants requiring that on the Closing Date (only), Holdings and its

 

Exhibit B-20


 

restricted subsidiaries shall have cash on hand equal to no less than $80 million (and, for the avoidance of doubt, any cash on hand at Holdings and its restricted subsidiaries that is designated to cover required payments in respect of restricted stock units, performance stock units or options granted under equity plans (including any ascertainable payroll taxes in connection therewith), in each case, that are unvested as of the Closing Date, shall count toward such $80 million threshold) (provided, that for the avoidance of doubt and notwithstanding anything to the contrary contained herein, in no event shall the requirement set forth in this proviso be construed as a condition precedent to the funding obligations of the Commitment Parties with respect to the Credit Facilities contemplated hereby; provided, further, that the required quarterly unaudited reporting shall include an indication of the PSU/RSU Reserve Amount in a manner to be agreed.)

Negative Covenants:

 

Limited to the following (to be applicable to restricted subsidiaries of Holdings and, with respect to the passive holding company covenant, negative pledge covenant, fiscal year covenant and restricted payment covenant, Holdings) limitations on, in each case, consistent with the Documentation Principles: (a) the incurrence of debt, (b) liens, (c) fundamental changes, (d) asset sales, (e) investments, (f) dividends or distributions on, or redemptions of, Holdings’ and its restricted subsidiaries’ equity interests, (g) repayments, purchases or redemptions of payment subordinated, junior lien or unsecured indebtedness for borrowed money (other than indebtedness owed to Holdings or any of its restricted subsidiaries) (“Specified Indebtedness”), (h) negative pledge clauses, (i) transactions with affiliates, (j) lines of business, (k) amendments to organizational documents, (l) changes in fiscal year and (m) passive holding company covenant with respect to Holdings.

 

The negative covenants will be subject, in the case of each of the foregoing covenants, to exceptions, qualifications and “baskets” to be set forth in the Credit Facilities Documentation consistent with the Documentation Principles, which shall, for the avoidance of doubt, permit classification and reclassification from time to time by the Borrower among one or more available baskets and reallocations of any fixed dollar-based baskets or amounts to incurrence-based baskets or amounts and exceptions within each negative covenant but not between negative covenants (except to the extent expressly provided therefor herein or in the Documentation Precedent) and permit any transaction or items that are scheduled in the Acquisition Agreement.

 

Exhibit B-21


 

Without limitation, the indebtedness covenant shall include baskets for (1) secured and/or unsecured indebtedness pursuant to a general basket equal to the greater of (i) $54.3 million and (ii) 35.0% of Consolidated EBITDA for the most recently ended Test Period, which basket shall not, for the avoidance of doubt, be subject to any default or event of default condition (provided that, for the avoidance of doubt, any liens securing indebtedness incurred pursuant to such basket shall utilize a permitted liens basket); (2) debt of any restricted subsidiary of Holdings assumed or incurred for any purpose (including in connection with Permitted Acquisitions or other non-prohibited investments or capital expenditures), in unlimited amounts so long as either (x) in connection with any indebtedness that is assumed, such indebtedness was assumed in connection with, but not incurred in contemplation of the relevant acquisition or investment or (y) in connection with any indebtedness that is incurred (or, for the avoidance of doubt, assumed in contemplation of such relevant acquisition or investment), on a pro forma basis after giving effect to the assumption or incurrence of any such debt and after giving effect to any acquisition or other investment consummated concurrently or in connection therewith, any indebtedness repaid with the proceeds thereof, and any other acquisition, disposition, debt incurrence, debt retirement and other appropriate pro forma adjustments but without, for the avoidance of doubt, giving effect to any other indebtedness incurred concurrently or in connection therewith under the Unrestricted Incremental Amount, the Revolving Facility or any Fixed Amount (but otherwise excluding the cash proceeds of any such indebtedness from cash and cash equivalents), in the case of indebtedness that is (1) incurred prior to a Covenant Conversion, the LQA Recurring Revenue Leverage Ratio shall not exceed 2.67 to 1.00, or (2) incurred after a Covenant Conversion and (x) secured on a pari passu basis with the Secured Obligations, the Total Leverage Ratio shall not exceed 7.00 to 1.00, (y) secured on a junior basis to the Secured Obligations, the Total Leverage Ratio shall not exceed 7.25 to 1.00, or (z) unsecured, the Total Leverage Ratio shall not exceed 7.50 to 1.00 (in each case with Consolidated EBITDA calculated for the most recently ended Test Period prior to, and cash and cash equivalents calculated as of, the date of the incurrence of such indebtedness (or, if such indebtedness is incurred in connection with a Limited Condition Transaction, the LCT Test Date rather than such date of incurrence)); provided that such amount may, at the option of the Borrower, be increased by the Unrestricted Incremental Amount (the exercise of such option, the “Fixed Incremental Reallocation Provision”); provided that any indebtedness incurred pursuant to clause (2)(x) in the form of term loans secured on a pari passu basis with the Credit Facilities shall be subject to the MFN Adjustment to the same extent it would be subject to the MFN Adjustment if it were an Incremental Facility; provided, further, that any

 

Exhibit B-22


 

indebtedness incurred under the Ratio Debt Basket shall satisfy the Required Debt Terms (as defined in accordance with the Documentation Precedent and the provision set forth under the heading “Incremental Equivalent Debt” above (other than clause (i)(x) of the section hereof entitled “Incremental Facilities”)); provided, further, that there shall be a cap on the aggregate outstanding amount of non-guarantor indebtedness incurred pursuant to this clause (2) equal to the greater of (i) $50.0 million and (ii) 30.0% of Consolidated EBITDA for the most recently ended Test Period (such basket described in this clause (2), the “Ratio Debt Basket”), which basket shall not, for the avoidance of doubt, be subject to any default or event of default condition; (3) an acquisition debt basket (the “Acquisition Debt Basket”) for (x) assumed indebtedness not incurred in contemplation of any applicable acquisition or investment and (y) incurred indebtedness in an aggregate amount equal to the greater of $34 million and 20% of Consolidated EBITDA plus an unlimited amount subject to the same incurrence based amounts as applicable to the Ratio Debt Basket; provided that such amount may, at the option of the Borrower, be increased pursuant to the Fixed Incremental Reallocation Provision; provided, further, that any indebtedness that is incurred pursuant to this clause (3)(y) (A) in the form of term loans secured on a pari passu basis with the Credit Facilities shall be subject to the MFN Adjustment to the same extent it would be subject to the MFN Adjustment if it were an Incremental Facility and (B) shall be subject to the Required Debt Terms (as defined in accordance with the Documentation Precedent and the provision set forth under the heading “Incremental Equivalent Debt” above (other than clause (i)(x) of the section hereof entitled “Incremental Facilities”)), provided, further, that there shall be a cap on the aggregate outstanding amount of non-guarantor indebtedness incurred pursuant to this clause (3) equal to the greater of (i) $50.0 million and (ii) 30.0% of Consolidated EBITDA for the most recently ended Test Period, which basket shall not, for the avoidance of doubt, be subject to any default or event of default condition, and (4) indebtedness in an aggregate amount equal to the aggregate cash equity contributions made to Holdings (or any direct or indirect parent thereof) after the Closing Date (other than Specified Equity Contributions, any disqualified equity, any Designated Appraisal Claim Equity Contribution (as defined below) and any such equity contribution that increases the Cumulative Amount), which basket shall not, for the avoidance of doubt, be subject to any default or event of default condition.

 

Exhibit B-23


 

Without limitation, the liens covenant shall include (1) an incurrence-based basket for liens (whether or not such liens secure indebtedness) in an unlimited amount; provided, that, (A) if incurred prior to a Covenant Conversion, the LQA Recurring Revenue Leverage Ratio shall not exceed 2.67 to 1.00, or (B) if incurred after a Covenant Conversion and (x) secured on a pari passu basis with the Secured Obligations, the Total Leverage Ratio shall not exceed 7.00 to 1.00, or (y) secured on a junior basis to the Secured Obligations, the Total Leverage Ratio shall not exceed 7.25 to 1.00 (in each case with Consolidated EBITDA calculated for the most recently ended Test Period prior to, and cash and cash equivalents calculated as of, the date of the incurrence of such indebtedness (or, if such indebtedness is incurred in connection with a Limited Condition Transaction, the LCT Test Date rather than such date of incurrence) (the “Ratio Lien Basket”)); provided that (x) such amount may be increased by the Unrestricted Incremental Amount pursuant to the Fixed Incremental Reallocation Provision (for the avoidance of doubt, one dollar of Unrestricted Incremental Amount so reclassified shall permit one dollar of permitted secured indebtedness and/or lien capacity pursuant to the Ratio Debt Basket, the Acquisition Debt Basket and/or the Ratio Lien Basket, but in no event shall one dollar of Unrestricted Incremental Amount reallocated pursuant to the Fixed Incremental Reallocation Provision provide for the incurrence of more than one dollar of indebtedness), (y) any indebtedness secured by Collateral pursuant to such Ratio Lien Basket shall be subject to intercreditor requirements substantially consistent with those set forth in the Required Debt Terms (as defined in the Documentation Precedent) and (z) to the extent securing any indebtedness in the form of a term loan that is secured on a pari passu basis with the Credit Facilities and which is itself required (pursuant to the indebtedness negative covenant) to be subject to the MFN Adjustment to the same extent it would be subject to the MFN Adjustment if it were an Incremental Facility, such indebtedness secured by a lien under this clause (1) shall be subject to the MFN Adjustment to the same extent it would be subject to the MFN Adjustment if it were an Incremental Facility, and (2) a general basket equal to the greater of (i) $54.3 million and (ii) 35.0% of Consolidated EBITDA for the most recently ended Test Period, which basket shall not, for the avoidance of doubt, be subject to any default or event of default condition.

 

Without limitation, the investments covenant shall include baskets for (1) investments pursuant to a general basket in an outstanding amount not to exceed the greater of (i) prior to a Covenant Conversion, $50.0 million and (ii) following a Covenant Conversion, the greater of $50.0 million and 30.0% of Consolidated EBITDA for the most recently ended Test Period, plus, any unused capacity under the general restricted payment basket or the general basket for prepayments of

 

Exhibit B-24


 

Specified Indebtedness, and (without duplication) any other unused capacity under any other restricted payments or Specified Indebtedness prepayments baskets (which usage shall reduce the availability of such baskets for making such restricted payments or prepayments of Specified Indebtedness, as applicable), which basket shall be subject to no continuing payment or bankruptcy event of default; (2) unlimited investments, provided that (i) prior to a Covenant Conversion, the LQA Recurring Revenue Leverage Ratio does not exceed 2.25 to 1.00 on a pro forma basis and (ii) following a Covenant Conversion, the Total Leverage Ratio does not exceed 6.25 to 1.00 on a pro forma basis, in each case subject to no payment or bankruptcy event of default; (3) subject to the Limited Condition Transaction provisions, so long as (x) prior to a Covenant Conversion, no payment, bankruptcy, financial covenant or financial reporting event of default or (y) following a Covenant Conversion, no payment or bankruptcy event of default shall have occurred and be continuing, investments in a person (including, to the extent constituting an investment, to acquire assets of a person that represents all or substantially all of its assets or a division, business unit or product line, including research and development and related assets in respect of any product), that is engaged in a permitted business if as a result of such investment, (A) such person becomes a restricted subsidiary to the extent required by the Credit Facilities Documentation, (B) such person, in one transaction or a series of related transactions, is amalgamated, merged or consolidated with or into, or transfers or conveys substantially all of its assets (or such division, business unit or product line) to, or is liquidated into, the Borrower or a restricted subsidiary, (C) the total consideration payable with respect to acquisitions of non-guarantors or assets acquired by non-guarantors shall not exceed, in the aggregate, (x) prior to a Covenant Conversion, $163.0 million and (y) following a Covenant Conversion, the greater of $163.0 million and 100% of Consolidated EBITDA; provided that such caps shall not apply if the non-loan party targets acquired in such an acquisition account for less than 20% of the Consolidated EBITDA of all of the entities acquired in such acquisition, calculated on a pro forma basis, and (D) the Borrower shall be in pro forma compliance with the applicable Financial Covenants on a pro forma basis immediately after giving effect to such investment (each such investment, a “Permitted Acquisition”); (4) investments using the Cumulative Amount without limitation; and (5) investments in non-guarantor restricted subsidiaries in an aggregate amount not to exceed (i) prior to a Covenant Conversion, $81.4 million and (ii) following a Covenant Conversion, the greater of $81.4 million and 50.0% of Consolidated EBITDA for the most recently ended Test Period, which basket shall not, for the avoidance of doubt, be subject to any default or event of default condition. In connection with any Permitted Investment, the Lenders shall receive customary and reasonable diligence information to the extent customarily available.

 

Exhibit B-25


 

Without limitation, the restricted payments covenant shall include baskets for (1) a general basket in an aggregate amount during the term of the Credit Facilities, provided that there is no event of default, equal to the greater of (i) prior to a Covenant Conversion, $34.0 million and (ii) following a Covenant Conversion, the greater of $34.0 million and 20% of Consolidated EBITDA for the most recently ended Test Period; (2) solely available for utilization following a Covenant Conversion, subject to no event of default, unlimited dividends, provided that the Total Leverage Ratio does not exceed 4.75 to 1.00; (3) after an IPO, subject to no payment, bankruptcy or financial covenant event of default, dividends in an aggregate amount per annum not to exceed the greater of (i) 7% of market capitalization and (ii) 7% of the proceeds of such offering or transaction; (4) distributions using the Cumulative Amount, subject to no event of default, provided that (i) prior to a Covenant Conversion, the LQA Recurring Revenue Leverage Ratio does not exceed 1.85 to 1.00 and (ii) following a Covenant Conversion, the Total Leverage Ratio does not exceed 6.50 to 1.00 and (5) for the avoidance of doubt, satisfying (x) obligations in respect of restricted stock units, performance stock units or options granted under equity plans (including any payroll taxes in connection therewith) that, in each case, were unvested as of the Closing Date or (y) subject to the last paragraph of the section hereof entitled “Negative Covenants”, Appraisal Obligations (including any premium or accruing interest or other amount thereon).

 

Without limitation, the covenant with respect to repayments, purchases or redemptions of Specified Indebtedness shall include (1) baskets providing for flexibility to make repayments, repurchases or redemptions in amounts and at levels consistent with those set forth for restricted payments in clauses (1) and (4) above with respect to the restricted payments covenant (and, for the avoidance of doubt, (i) otherwise consistent with the Documentation Principles and (ii) including default blockers that are consistent with those set forth for restricted payments in clauses (1) and (4)) and (2) solely available for utilization following a Covenant Conversion, subject to no event of default (or, in connection with a Limited Condition Transaction, no payment or bankruptcy event of default), unlimited restricted debt payments, provided that the Total Leverage Ratio does not exceed 4.75 to 1.00.

 

Exhibit B-26


 

The “Cumulative Amount” is to be comprised of (a) (i) prior to a Covenant Conversion, $68.0 million and (ii) following a Covenant Conversion, the greater of $68.0 million and 40.0% of Consolidated EBITDA for the most recently ended Test Period, plus (b) cumulative retained Excess Cash Flow from the first day of the fiscal year in which the Covenant Conversion occurs (which shall not be less than zero for any fiscal year), plus (c) the net cash proceeds of new public or private qualified equity issuances and qualified capital or the fair market value of non-cash asset contribution, in each case of this clause (c), after the Closing Date (other than Specified Equity Contributions, Designated Appraisal Claim Equity Distributions, and the proceeds of equity contributions otherwise applied but including the fair market value of any Term Loans or other indebtedness (or, if higher, the purchase price paid therefor) so contributed and concurrently cancelled), in each case, to the extent received by Holdings and contributed to the Borrower, plus (d) debt and disqualified stock issued after the Closing Date that has been exchanged or converted into qualified equity of Holdings or one of its parent entities, plus (e) returns from, and proceeds (and the fair market value of non-cash proceeds) of the sale of, investments, and returns, profits, distributions and similar amounts received by Holdings and its restricted subsidiaries on investments (including proceeds of any sale leaseback transactions), plus (f) investments in an unrestricted subsidiary upon its re-designation as a restricted subsidiary or that has been merged, consolidated or transferred with or into any restricted subsidiaries of Holdings or the any cash amount of any assets of any and the fair market value of assets transferred (including by way of distribution) from an unrestricted subsidiary to a restricted subsidiary, plus (g) cash distributions received from joint ventures and unrestricted subsidiaries and the fair market value of non-cash property received from joint ventures and unrestricted subsidiaries, plus (h) net cash proceeds or fair market value of non-cash proceeds from the sale of equity interests of joint ventures and unrestricted subsidiaries, plus (i) declined proceeds (for the avoidance of doubt, with respect to clauses (e) through (h), limited to the amount of such original investment made using the Cumulative Amount, as applicable (after giving effect to any reclassifications or reallocations permitted by the Credit Facilities Documentation)).

 

Notwithstanding any other provision contained in this Term Sheet, Holdings and its subsidiaries shall not, directly or indirectly, make post-Closing Date payments to former stockholders of the Company or their assignees in connection with or as a result of the exercise of appraisal rights and/or the settlement of any claims or actions with respect thereto, in each case with respect to the Transactions (the “Appraisal

 

Exhibit B-27


 

Obligations”), unless (1) the Sponsor shall have furnished to Holdings on the Closing Date a support letter in form and substance reasonably satisfactory to the Administrative Agent (it being understood that the support letter delivered in connection with the Documentation Precedent is satisfactory) ensuring Holdings the receipt of an amount post-closing equal to the Per Share Price (as defined in the Acquisition Agreement) of each share subject to an appraisal claim, subject to reduction to the extent an amount less than the Per Share Price is ultimately required to be paid in respect of the shares subject to appraisal (and as otherwise provided herein), (2) such support letter (as a “Loan Document”) remains in full force and effect (without any amendment, waiver or other modification that is materially adverse to the interest of the Lenders) until the earlier to occur of (x) payment or final resolution of all Appraisal Obligations or (y) an amount has been contributed to Holdings in the form of common equity or qualified preferred stock reasonably acceptable to the Administrative Agent, which is equal to the total amount (if any) by which the Equity Contribution was less than the required 70% level set forth on Exhibit A on account of amounts withheld for potential future settlement or resolution of shareholder appraisal claims (the “Appraisal Equity Deficiency”) (provided, that the maximum obligation of the Sponsor under such support letter may be reduced, from time to time, to the amount of the maximum obligations (but in any event to an amount no less than the Per Share Price in respect of each share then subject to a valid appraisal claim and not yet paid or otherwise settled or resolved) that may become payable pursuant to such Appraisal Obligations as and when reduced by payment, settlement or other resolution of such claim or by a determination of the amount to be paid in respect of such claim), and (3) except for payments made in excess of the Per Share Price, any such payments shall be made solely with the proceeds of contributions to Holdings in the form of common equity or qualified preferred stock reasonably acceptable to the Administrative Agent following the Closing Date and designated in writing to the Administrative Agent as “Designated Appraisal Claim Equity Contributions” (each, a “Designated Appraisal Claim Equity Contribution”); provided that (i) Holdings or its subsidiaries may make any such payments at any time and from time to time so long as either (x) an amount no less than the Per Share Merger Consideration of the shares in respect of which such payment is made (or such lesser amount as is actually required to be paid in respect of such shares) has been (or is substantially concurrently) contributed to Holdings in the form of common equity or qualified preferred stock reasonably acceptable to the Administrative Agent or (y) an amount equal to the Appraisal Equity Deficiency has been contributed to Holdings in the form of common equity or qualified preferred stock

 

Exhibit B-28


 

reasonably acceptable to the Administrative Agent (or otherwise as a capital contribution in cash and not in contravention of the foregoing) following the Closing Date and (ii) for the avoidance of doubt, the Sponsor shall not be responsible (under the support letter or otherwise) for Appraisal Obligations in excess of the Per Share Price of each share subject to an appraisal claim on the Closing Date; provided, further, that if an amount no less than the 70% level set forth on Exhibit A has been contributed to Holdings on the Closing Date, no Support Agreement shall be required. Notwithstanding anything to the contrary, in the event that it is determined after the Effective Date that any shares indicated in the appraisal letters to be subject to appraisal claims are not indeed subject to valid appraisal claims and must be paid out by the Company as part of the merger consideration, the Company may, subject to a cap to be agreed, pay out any such shares with cash from its balance sheet or other available sources of liquidity, and the Company shall not be required to receive an equity contribution in respect of such shares until the earlier of (x) such time as the Company makes any payment in respect of any shares that were subject to valid appraisal claims and (y) a date to be agreed.

Limited Condition Transactions:

 

The Credit Facilities Documentation shall contain provisions regarding “limited condition transactions” consistent with the Documentation Principles.

 

Limited Condition Transaction” shall mean (i) any investment or acquisition by Holdings or one or more of its restricted subsidiaries, including, without limitation, by way of merger or amalgamation, of any assets, business or person permitted pursuant to the Credit Facilities Documentation, and including, without limitation, any such transaction that is subject to a binding contractual agreement, public offer or purchase agreement, in each case whose consummation is not conditioned on the availability of, or on obtaining, third-party financing, or (ii) any redemption, repurchase, defeasance, satisfaction and discharge or repayment of indebtedness requiring irrevocable notice in advance of such redemption, repurchase, defeasance, satisfaction and discharge or repayment (in each case, whether or not conditional), in each case, with respect to which the Borrower has made an LCT Election (to be defined in a manner consistent with the Documentation Principles).

Covenant Conversion:

 

The Borrower may elect to effect a “Covenant Conversion” at any time following the one-year anniversary of the Closing Date, in its sole discretion, so long as the Total Leverage Ratio is less than or equal to 7.00 to 1.00 and no event of default shall have occurred and be continuing at the time of such Covenant Conversion; provided, that a Covenant Conversion shall automatically occur on the last day of the fiscal quarter in which the second anniversary of the Closing Date occurs, to the extent a Covenant Conversion has not previously occurred.

 

Exhibit B-29


Financial Maintenance Covenants:

 

Unless waived by Required Lenders, the Credit Facilities Documentation will contain the following financial covenants (the “Financial Covenants”) with regard to Holdings and its restricted subsidiaries on a consolidated basis:

 

(A) LQA Recurring Revenue Leverage Ratio:

 

Commencing with the first full fiscal quarter ending after the Closing Date and ending on the last fiscal quarter ended prior to a Covenant Conversion, a maximum LQA Recurring Leverage Ratio covenant that shall be tested quarterly, with levels set with a 25% cushion to LQA Recurring Revenues from the Sponsor model made available to the Administrative Agent on September 22, 2022 (which was, for the avoidance of doubt, also made available to all Commitment Parties prior to the Original Commitment Letter Date) (the “Sponsor Model”), with such covenant levels to be set on a net basis (without netting the PSU/RSU Reserve Amount) with step-downs in number and frequency to be agreed (subject to the aforementioned cushion) (and, for the avoidance of doubt, to be tested net of Unrestricted Cash (with no control agreements required)) (such Financial Covenant, the “Recurring Revenue Covenant”).

 

(B) Minimum Liquidity:

 

Commencing with the first full fiscal quarter ending after the Closing Date and each fiscal quarter thereafter until the last fiscal quarter ended prior to a Covenant Conversion, a minimum Liquidity covenant set at $25.0 million, which shall be tested as of the last day of each fiscal quarter (such Financial Covenant, the “Liquidity Covenant”).

 

Liquidity” shall mean, as of any date of determination, the sum of (a) the total revolving commitment as of such date less (i) the amount of any Revolving Loans actually borrowed and outstanding as of such date and (ii) the letter of credit exposure under the Revolving Facility as of such date plus (b) the amount of Unrestricted Cash.

 

Exhibit B-30


 

(C) Total Leverage Ratio:

 

Commencing with the last day of the fiscal quarter in which a Covenant Conversion occurs, a maximum Total Leverage Ratio covenant that shall be tested quarterly, with levels set with a 35% cushion to Consolidated EBITDA from the Sponsor Model, with step-downs in number and frequency to be agreed (subject to the aforementioned cushion), which levels shall be set on a gross basis, without regard to cash balances in the Sponsor Model (and, for the avoidance of doubt, to be tested net of Unrestricted Cash (with no control agreements required)) (such Financial Covenant, the “EBITDA Covenant”).

Equity Cure:

 

For purposes of determining compliance with (i) the Recurring Revenue Covenant, any cash equity contribution (which shall be common equity or otherwise in a form reasonably acceptable to the Administrative Agent) made to the Borrower on or after the first day of the applicable fiscal quarter and on or prior to the day that is fifteen (15) business days after the day on which financial statements are required to be delivered for such fiscal quarter (the “Cure Period”) may be used by the Borrower during the Cure Period to prepay Term Loans, and such prepayment will be given full effect in the calculation of Consolidated Total Funded Indebtedness with respect to the test period ending with such fiscal quarter (solely for purposes of determining compliance with the Recurring Revenue Covenant), and with respect to any subsequent test periods, (ii) the EBITDA Covenant, any cash equity contribution (which shall be common equity or otherwise in a form reasonably acceptable to the Administrative Agent) made to the Borrower during the Cure Period will, at the request of the Borrower, be included in the calculation of Consolidated EBITDA solely for purposes of determining compliance with the EBITDA Covenant at the end of such fiscal quarter and applicable subsequent periods which include such fiscal quarter, or (iii) the Liquidity Covenant, any cash equity contribution (which shall be common equity or otherwise in a form reasonably acceptable to the Administrative Agent) made to the Borrower during the Cure Period will, at the request of the Borrower, be included in the calculation of Liquidity for purposes of determining compliance with the Liquidity Covenant as of the end of such fiscal quarter (any such equity contribution so included in the calculation of Consolidated Total Funded Indebtedness or Consolidated EBITDA or Liquidity, as applicable, a “Specified Equity Contribution”), subject solely to the following terms and conditions: (a) in each four consecutive fiscal quarter period, there shall be at least two fiscal quarters in respect of which no Specified Equity Contribution is made, (b) there shall be no more than five Specified Equity Contributions in the aggregate during the term of the Credit Facilities, (c) the amount of any Specified Equity Contribution shall be no greater than the amount required to cause the Borrower to be in pro forma compliance with the Recurring Revenue Covenant, the EBITDA Covenant or the

 

Exhibit B-31


 

Liquidity Covenant, as applicable, (d) all Specified Equity Contributions that increase Consolidated EBITDA shall be counted solely for the purposes of determining compliance with the Leverage Ratio Maintenance Covenant and shall not be included as Consolidated EBITDA for purposes of determining pricing or any baskets and other ratios contained in the Credit Facilities Documentation (including, for the avoidance of doubt, for purposes of determining the Total Leverage Ratio in connection with a contemplated Covenant Conversion), and (e) there shall be no pro forma reduction in indebtedness (by netting or otherwise) with the proceeds of any Specified Equity Contribution for determining compliance with the EBITDA Covenant for the fiscal quarter for which such Specified Equity Contribution is deemed applied, provided that, to the extent that such proceeds are actually applied to prepay indebtedness under the Credit Facilities, a pro forma reduction in indebtedness is deemed applied with respect to any future periods.

 

Notwithstanding the foregoing, (i) no default or event of default shall be deemed to have occurred on the basis of any failure to comply with the Recurring Revenue Covenant, EBITDA Covenant, or the Liquidity Covenant, as applicable, unless such failure is not cured by the making of a Specified Equity Contribution prior to the end of the Cure Period and (ii) no Lender or Issuing Bank shall be obligated to extend Revolving Loans or issue or renew Letters of Credit following the date on which the compliance certificate has been or was required to be delivered with respect to the applicable fiscal quarter in respect of which the Financial Covenant is breached and until a Specified Equity Contribution is made and all existing defaults and events of default are waived or cured.

Unrestricted Subsidiaries:

 

The Credit Facilities Documentation will contain provisions pursuant to which, subject to customary limitations on loans and advances to and other investments in unrestricted subsidiaries, the Borrower will be permitted to designate any existing or subsequently acquired or organized subsidiary as an “unrestricted subsidiary” and subsequently re-designate any such unrestricted subsidiary as a restricted subsidiary, subject solely to the requirements that (x) each designation or re-designation shall be deemed to be an investment on the date of such designation in an amount equal to the fair market value of the investment therein, consistent with the Documentation Principles, (y) no event of default shall have occurred and be continuing or would immediately result from such designation, consistent with the Documentation Principles and (z) immediately after giving effect to any such designation (and otherwise consistent with the Documentation Principles), on a pro forma basis, (x) prior to a Covenant Conversion, the LQA Recurring Revenue

 

Exhibit B-32


 

Leverage Ratio shall not exceed 1.75 to 1.00 or (y) after a Covenant Conversion, the Total Leverage Ratio shall not exceed 5.50 to 1.00; provided, further, that notwithstanding the foregoing or anything to the contrary herein, in no event shall any of Holdings or its subsidiaries be designated as unrestricted subsidiaries on the Closing Date and in no event shall Holdings, the Borrower or any of their subsidiaries which owns or licenses any material intellectual property used by Holdings, the Borrower or any of their restricted subsidiaries become an unrestricted subsidiary. Unrestricted subsidiaries (and the sale of any equity interests therein or assets thereof) will not be subject to the mandatory prepayment, representation and warranty, affirmative or negative covenant or event of default provisions of the Credit Facilities Documentation, and the results of operations and indebtedness of unrestricted subsidiaries will not be taken into account for purposes of determining Consolidated EBITDA, LQA Recurring Revenues, Liquidity or compliance with the Financial Covenants or any other financial ratios or baskets. The designation of any restricted subsidiary as an unrestricted subsidiary shall constitute an investment therein at the date of designation in an amount equal to the fair market value thereof. Notwithstanding anything to the contrary herein, (i) the Credit Facilities Documentation shall provide that the only basket pursuant to which Holdings or any restricted subsidiary may transfer material intellectual property (including certain exclusive licenses other than those in the ordinary course or which do not interfere in any material respect with the ordinary conduct of business by Holdings and its restricted subsidiaries) that is utilized in the business of Holdings and its restricted subsidiaries to an unrestricted subsidiary shall be the negative covenant basket specified for investments in unrestricted subsidiaries (which shall be a fixed dollar basket available so long as such investments pursuant thereto do not exceed the greater of $34.0 million and 20% of Consolidated EBITDA) and (ii) for the avoidance of doubt, there shall be no restrictions on any unrestricted subsidiary otherwise owning any intellectual property (x) it develops, creates or acquires not in contravention of the forgoing clause (i) or (y) which does not constitute material intellectual property utilized by Holdings and its restricted subsidiaries.

 

The designation of any unrestricted subsidiary as a restricted subsidiary shall constitute the incurrence at the time of designation of any indebtedness or liens of such subsidiary existing at such time.

Events of Default:

 

The Credit Facilities Documentation shall contain provisions regarding events of default consistent with the Documentation Principles; provided that a nonpayment of interest, fees or any other amount shall be subject to a five (5) business day grace period.

 

Exhibit B-33


Voting:

 

The Credit Facilities Documentation shall contain provisions regarding voting consistent with the Documentation Principles; provided that “Required Lenders” shall be defined to require at least two unaffiliated Lenders.

Cost and Yield Protection:

 

The Credit Facilities Documentation will include customary tax gross-up and cost and yield protection provisions and protection for increased costs will be subject to customary exceptions, in each case, consistent with the Documentation Principles.

Assignments and Participations:

 

The Credit Facilities Documentation shall contain provisions regarding assignments and participations consistent with the Documentation Principles; provided that the aggregate outstanding principal amount of Term Loans held by the Sponsor and its affiliates (other than bona fide debt funds and other than Holdings and its Subsidiaries) shall not exceed 25% of the aggregate outstanding principal amount outstanding at the time of any purchase thereof.

Expenses and Indemnification:

 

The Credit Facilities Documentation shall contain provisions regarding expenses and indemnification consistent with the Documentation Principles.

Governing Law and Forum:

 

New York; provided that, notwithstanding the governing law provisions of the Credit Facilities Documentation, it is understood and agreed that (a) the interpretation of the definition of “Company Material Adverse Effect” (as defined in the Acquisition Agreement) and whether or not a “Company Material Adverse Effect” (as defined in the Acquisition Agreement) shall have occurred, (b) the determination of the accuracy of any Specified Acquisition Agreement Representations and whether as a result of any inaccuracy thereof either Holdings or its applicable affiliate has the right to terminate its obligations under the Acquisition Agreement or to decline to consummate the Acquisition, and (c) the determination of whether the Acquisition has been consummated in accordance with the terms of the Acquisition Agreement shall, in each case, be governed by, and construed in accordance with, the law of the State of Delaware, including its statutes of limitations, regardless of the laws that may otherwise govern under applicable principles of conflicts of law.

Counsel to the Joint Lead Arrangers, the Joint Bookrunners, the Initial Lenders and the Administrative Agent:  

Latham & Watkins LLP.

 

Exhibit B-34


ANNEX I to

EXHIBIT B

 

Interest Rates:

  

The interest rates under the Credit Facilities will be as follows:

  

With respect to Revolving Loans and Term Loans, at the option of the Borrower, (a) prior to a Covenant Conversion, (i) if the LQA Recurring Revenue Leverage Ratio is greater than 2.25x, SOFR plus 7.75% or ABR plus 6.75%, and (ii) if the LQA Recurring Revenue Leverage Ratio is less than or equal to 2.25x, SOFR plus 7.50% or ABR plus 6.50% and (b) from and after a Covenant Conversion, (i) if the Total Leverage Ratio is greater than 7.00 to 1.00, SOFR plus 7.75% or ABR plus 6.75%, (ii) if the Total Leverage Ratio is less than or equal to 7.00 to 1.00 but greater than 6.50 to 1.00, SOFR plus 7.25% or ABR plus 6.25%, and (iii) if the Total Leverage Ratio is less than or equal to 6.50 to 1.00, SOFR plus 6.75% or ABR plus 5.75% (the interest rate spreads per annum added to SOFR or ABR, as applicable, in each of the pricing levels set forth above, as applicable, the “Applicable Margin”). For the avoidance of doubt, in no event shall an automatic Covenant Conversion on the last day of the fiscal quarter in which the second anniversary of the Closing Date occurs result in a pricing step down pursuant to the definition of Applicable Margin unless and until the Total Leverage Ratio is less than or equal to 7.00 to 1.00.

  

The Borrower may elect interest periods of 1, 3 or 6 months for SOFR borrowings, in each case, to the extent available, and, for Daily SOFR borrowings only, certain other periods

  

Calculation of interest shall be on the basis of the actual days elapsed in a year of 360 days (or 365 or 366 days, as the case may be, in the case of ABR loans where the applicable rate is determined pursuant to clause (i) of the definition of ABR).

  

Interest shall be payable in arrears for loans accruing interest (a) at a rate based on SOFR, at the end of each interest period and, for interest periods of greater than three months, every three months, and on the applicable maturity date, and (b) based on the ABR, quarterly in arrears and on the applicable maturity date.

  

ABR” is the Alternate Base Rate, which is the highest of (i) the rate of interest publicly identified from time to time as the U.S. “prime rate” as published in the Money Rates section of the Wall Street Journal, (ii) the Federal Funds Rate plus 1/2 of 1.0% and (iii) the one-month SOFR rate plus 1.0% per annum.

  

SOFR” is Term SOFR (to be defined in a manner to be mutually agreed) or, in the event that the Term SOFR reference rate for the applicable tenor has not been published, Daily SOFR; provided that if such rate is less than 1.00% per annum, such rate shall be deemed to be 1.00% per annum. Notwithstanding anything to the contrary, neither Term SOFR nor Daily SOFR shall be subject to any “credit spread adjustment” or similar adjustment, and the Credit Facilities Documentation shall include SOFR fallback and replacement provisions to be mutually agreed.

 

Annex I to Exhibit B-1


Letter of Credit Fee:

  

A per annum fee equal to the spread over SOFR under the Revolving Facility will accrue on the aggregate face amount of outstanding letters of credit under the Revolving Facility, payable in arrears at the end of each quarter and upon the termination of the respective letter of credit, in each case for the actual number of days elapsed over a 360-day year. Such fees shall be paid to the Administrative Agent for distribution to Revolving Lenders that are not Defaulting Lenders pro rata in accordance with the amount of each such Lender’s Revolving Facility commitment, with exceptions for defaulting Revolving Lenders. In addition, the Borrower shall pay to each Issuing Bank, for its own account, (a) a fronting fee equal to 0.25% upon the aggregate face amount of outstanding letters of credit, payable in arrears at the end of each quarter and upon the termination of the Revolving Facility, calculated based upon the actual number of days elapsed over a 360-day year, and (b) customary issuance and administration fees.

Commitment Fees:

  

The Borrower shall pay a commitment fee on the average daily unused portion of the Revolving Facility of (a) initially, 0.50% per annum and (b) following a Covenant Conversion, (i) if the Secured Leverage Ratio is less than or equal to 6.50 to 1.00 but greater than 5.75 to 1.00, 0.375% per annum and (ii) if the Secured Leverage Ratio is less than or equal to 5.75 to 1.00, 0.25% per annum.

 

The commitment fees are payable quarterly in arrears commencing from the Closing Date, calculated based upon the actual number of days elapsed over a 360-day year. Such fees shall be distributed to Revolving Lenders that are not Defaulting Lenders pro rata in accordance with the amount of each such Lender’s Revolving Facility commitment.

 

Annex I to Exhibit B-2


EXHIBIT C

Project Orange

Conditions2

The initial borrowings under the Credit Facilities shall be subject to the satisfaction or waiver (by the Commitment Parties) of the following conditions:

 

1.

The Acquisition shall have been consummated, or substantially simultaneously with the initial borrowing under the Term Facility, shall be consummated, in all material respects in accordance with the terms of the Acquisition Agreement, without giving effect to any amendments, consents or waivers by you thereto that are materially adverse to the Lenders or the Lead Arrangers (in their respective capacities as such), without the prior consent of the Commitment Parties (such consent not to be unreasonably withheld, delayed or conditioned, and provided that the Commitment Parties shall be deemed to have consented to such modification, amendment, supplement, consent, waiver or request unless they shall have objected thereto within five (5) business days after receipt by each Commitment Party of written notice of such modification, amendment, supplement, consent, waiver or request), it being understood and agreed that (a) any reduction in the purchase price of, or consideration for the Acquisition shall not be considered material and adverse to the interests of the Lenders or the Lead Arrangers so long as (1) any such reduction is less than ten percent (10%) of the total Acquisition consideration and (2) such reduction is applied, first, to reduce the Equity Contribution such that the sum of the Equity Contribution and Other Equity is not less than the amount required pursuant to paragraph (a) of the Transaction Description set forth in Exhibit A (subject to amounts withheld at closing for potential future settlement or resolution of shareholder appraisal claims in an amount not to exceed the Per Share Price (as defined in the Acquisition Agreement) per each Dissenting Company Share (as defined in the Acquisition Agreement)) and, thereafter, after giving effect to the application of the reduction of the purchase price in the preceding clause (1), the Borrower shall reduce the Term Facility on a pro rata basis with the Equity Contribution, provided that in no event shall the sum of the Equity Contribution and Other Equity be less than the amount required pursuant to paragraph (a) of the Transaction Description set forth in Exhibit A, (b) any increase in the purchase price of, or consideration for, the Acquisition is not materially adverse to the Lenders or the Commitment Parties to the extent that any such increase is not funded with additional indebtedness (other than permitted Closing Date draws on the Revolving Facility) (it being understood and agreed that no purchase price, working capital or similar adjustment set forth in the Acquisition Agreement (as in effect on the Original Commitment Letter Date or as amended in a manner not materially adverse to the Lenders or the Lead Arrangers) shall constitute an increase in the purchase price); and (c) any amendment or modification to, waiver of or consent under the definition of “Company Material Adverse Effect” in the Acquisition Agreement is materially adverse to the interests of the Lenders and the Lead Arrangers.

 

2.

The Equity Contribution shall have been made, or substantially simultaneously with the initial borrowing under the Term Facility, shall be made, in at least the amount and consistent with the description thereof set forth in Exhibit A to the Commitment Letter (as such amount may be modified pursuant to paragraph 1 above) (and, for the avoidance of doubt, subject to amounts withheld at closing for potential future settlement or resolution of shareholder appraisal claims in an amount not to exceed the Per Share Price (as defined in the Acquisition Agreement) per each Dissenting Company Share (as defined in the Acquisition Agreement)).

 

2 

Capitalized terms used in this Exhibit C shall have the meanings set forth in the other Exhibits attached to the Commitment Letter to which this Exhibit C is attached (the “Commitment Letter”). In the case of any such capitalized term that is subject to multiple and differing definitions, the appropriate meaning thereof in this Exhibit C shall be determined by reference to the context in which it is used.

 

Exhibit C-1


3.

Subject in all respects to the Certain Funds Provisions, all documents and instruments required to create and perfect the Collateral Agent’s security interest in the Collateral shall have been executed and delivered and, if applicable, be in proper form for filing.

 

4.

The Commitment Parties shall have received at least two (2) business days prior to the Closing Date all documentation and other information about the Borrower and the Guarantors as has been reasonably requested in writing at least ten (10) business days prior to the Closing Date by the Commitment Parties that is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the PATRIOT Act and the Beneficial Ownership Regulation.

 

5.

Subject in all respects to the Certain Funds Provisions, the execution and delivery by the Borrower and Guarantors of (i) the Credit Facilities Documentation, which shall be consistent with the Commitment Letter, the Term Sheet and the Documentation Principles, and (ii) customary legal opinions, customary evidence of authorization, customary officer’s and closing certificates, good standing certificates (to the extent applicable) in the jurisdiction of organization of the Borrower(s) and each Guarantor and a solvency certificate of Holdings’ chief financial officer or other officer with equivalent duties in substantially the form of Annex I hereto (the items described in this clause (ii), collectively, the “Closing Deliverables”).

 

6.

The Commitment Parties shall have received (a) the audited consolidated balance sheets of the Company as of December 31, 2021 and December 31, 2020 and the related audited consolidated statements of operations, consolidated loss, stockholders’ equity and cash flows, for the fiscal years then ended, and (b) the unaudited consolidated balance sheets of the Company as of March 31, 2022 and June 30, 2022 and the related audited consolidated statements of operations, consolidated loss, stockholders’ equity and cash flows for the fiscal periods then ended. It is acknowledged and agreed that the Commitment Parties have received the items required by clause (a) and clause (b).

 

7.

All fees required to be paid on the Closing Date pursuant to the Fee Letters and reasonable and documented out-of-pocket expenses required to be paid on the Closing Date pursuant to the Commitment Letter, to the extent invoiced at least three (3) business days prior to the Closing Date, shall, upon the initial borrowing under the Term Facility, have been, or will be substantially concurrently, paid (which amounts may be offset against the proceeds of the Credit Facilities).

 

8.

The Specified Acquisition Agreement Representations shall be true and correct to the extent required by the Certain Funds Provisions, and the Specified Representations shall be true and correct in all material respects (or, to the extent qualified by materiality, in all respects); provided that to the extent such Specified Representations are qualified by “materiality”, “Material Adverse Effect” or similar language, the definition of thereof shall be a “Company Material Adverse Effect” (as defined in the Acquisition Agreement (as in effect on the Original Commitment Letter Date)) for purposes of such representations and warranties made or deemed made on, or as of, the Closing Date (or any date prior thereto).

 

9.

The Refinancing shall have been consummated, or substantially simultaneously with the initial borrowing of Term Loans shall be consummated.

 

10.

No Company Material Adverse Effect (as defined in the Acquisition Agreement) will have occurred after the date of the Acquisition Agreement that is continuing.

 

Exhibit C-2


ANNEX I to

EXHIBIT C

SOLVENCY CERTIFICATE

[•], 2022

Pursuant to Section [•] of that certain Credit Agreement, dated as of the date hereof (as amended, amended and restated, supplemented, waived or otherwise modified from time to time, the “Credit Agreement”), by and among Oranje Holdco, Inc. (the “Borrower”), Oranje Midco, LLC (“Holdings”), as a Guarantor, each of the other Guarantors party thereto from time to time, the Lenders party thereto from time to time and Owl Rock Capital Corporation, as administrative agent for the Lenders and as collateral agent for the Secured Parties, the undersigned [chief financial officer] [other officer with equivalent duties] of Holdings hereby certifies as of the date hereof, solely on behalf of Holdings and not in his/her individual capacity and without assuming any personal liability whatsoever, that:

 

  1.

I am familiar with the finances, properties, businesses and assets of Holdings and its Subsidiaries. I have reviewed the Loan Documents and such other documentation and information and have made such investigation and inquiries as I have deemed necessary and prudent therefor. I have also reviewed the consolidated financial statements of Holdings and its Subsidiaries, including projected financial statements and forecasts relating to income statements and cash flow statements of Holdings and its Subsidiaries.

 

  2.

On the Closing Date, after giving effect to the Transactions, Holdings and its Subsidiaries (on a consolidated basis) (a) have property with fair value greater than the total amount of their debts and liabilities, contingent (it being understood that the amount of contingent liabilities at any time shall be computed as the amount that, in light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability), subordinated or otherwise, (b) have assets with present fair salable value not less than the amount that will be required to pay their liability on their debts as they become absolute and matured, (c) will be able generally to pay their debts and liabilities, subordinated, contingent or otherwise, as they become absolute and matured and (d) are not engaged in business or a transaction, and are not about to engage in business or a transaction, for which their property would constitute an unreasonably small capital.

All capitalized terms used but not defined in this certificate shall have the meanings set forth in the Credit Agreement.

[SIGNATURE PAGE TO FOLLOW]

 

Annex I to Exhibit C-1


IN WITNESS WHEREOF, the undersigned has executed this Certificate as of the date first written above.

 

ORANJE MIDCO, LLC

By:

 

 

 

Name:

 

Title:

 

Annex I to Exhibit C-2

Exhibit (d)(vii)

Exhibit (d)(vii)

Vista Equity Partners Fund VII, L.P.

c/o Vista Equity Partners Management, LLC

Four Embarcadero Center, 20th Floor

San Francisco, CA 94111

October 11, 2022

Oranje Holdco, LLC

c/o Vista Equity Partners Management, LLC

Four Embarcadero Center, 20th Floor

San Francisco, CA 94111

Attention: Christina Lema and Rod Aliabadi

Ladies and Gentlemen:

Reference is made to that certain Agreement and Plan of Merger (as the same may be amended, modified or restated in accordance with the terms thereof, the “Merger Agreement”), dated as of the date hereof, by and among Oranje Holdco, LLC, a Delaware limited liability company (“Parent” or “you”), Oranje Merger Sub, Inc., a Delaware corporation (“Merger Sub” and together with Parent, the “Buyer Parties”), and KnowBe4, Inc., a Delaware corporation (the “Company”), and that certain Support Agreement, dated as of the date hereof, by and among the Company, the Investor (as defined herein) and Parent (the “Support Agreement”). Capitalized terms used, but not otherwise defined, in this letter shall have the meanings ascribed to such terms in the Merger Agreement.

1. We are pleased to advise you that Vista Equity Partners Fund VII, L.P., a Delaware limited partnership (“Investor”), hereby agrees, conditioned upon (i) the satisfaction, or written waiver by Parent, of all conditions to the obligations of the Buyer Parties to consummate the Merger as set forth in Sections 7.1 and 7.2 of the Merger Agreement (other than those conditions that by their terms are to be satisfied at the Closing, but subject to the satisfaction or written waiver by Parent (to the extent permitted thereunder and under the Support Agreement) of such conditions), (ii) the substantially contemporaneous funding of the Debt Financing at the Closing, and (iii) the substantially contemporaneous consummation of the Merger, to contribute to Parent, at or prior to the Closing in accordance with the terms and subject to the conditions set forth in this letter, directly or indirectly through one or more of its affiliated funds to be designated by it, an aggregate amount up to $468,701,944 (the “Commitment”) in cash in immediately available funds (subject to any reduction in accordance with the terms set forth in the last sentence of this paragraph 1), it being understood and agreed that Investor shall not, under any circumstances, be obligated under this letter to (or be obligated to cause any other Person to) contribute to, purchase equity from or otherwise provide funds to Parent (or any other Person in respect of the transactions contemplated by the Merger Agreement) in an aggregate amount in excess of the Commitment. The proceeds of the Commitment shall be used by Parent solely to satisfy the Buyer Parties’ obligations under the Merger Agreement. The amount of the Commitment may be reduced by Parent (a) on a dollar-for-dollar basis by the amount of any cash, cash equivalents and marketable securities of the Company on hand as of the Closing that is available to be used in connection with the transactions contemplated by the Merger Agreement (but solely to the extent it will be possible, notwithstanding such reduction, for the Buyer Parties to consummate the transactions contemplated by the Merger Agreement in accordance with the terms thereof), (b) in an amount specified by Parent and agreed to by the Investor solely to the extent it will be possible, notwithstanding such reduction, for the Buyer Parties to consummate the transactions contemplated by the Merger Agreement in accordance with the terms thereof, and/or (c) on a dollar-for-dollar basis by the amount of any third-party financing obtained by Parent or any of its Affiliates at or prior to the Closing, as applicable and to the extent agreed by Investor; provided, however, that the Commitment shall not be reduced pursuant to this clause (c) unless and until such third party financing is funded at the Closing. Notwithstanding the prior sentence, the amount of the Commitment may not be reduced pursuant to the foregoing clause (b) or (c) in a manner that would reasonably be expected to impair, delay or prevent the consummation of the Merger.


2. Except as set forth in paragraph 4, the Commitment is solely for the benefit of Parent and is not intended (expressly or impliedly) to confer any benefits on, or create any rights in favor of, any other Person. Nothing set forth in this letter contains or gives, or shall be construed to contain or to give, any Person (other than Investor, Parent and the Company), including any Person acting in a representative capacity, any remedies under or by reason of, or any rights to enforce or cause Parent to enforce, the commitments set forth herein, nor shall anything in this letter be construed, to confer any rights, legal or equitable, in any Person other than Investor, Parent and the Company. Without limiting the foregoing, none of the creditors of Investor, any of the Buyer Parties or any of their respective Affiliates shall have any direct or indirect right to enforce this letter or to cause Parent to enforce this letter, other than as provided in and in accordance with paragraph 4.

3. Investor’s obligation to fund the Commitment will terminate and expire on the earliest to occur of (i) immediately following the later of the Effective Time and the deposit of the Exchange Fund pursuant to Section 2.9(b) of the Merger Agreement, (ii) the valid termination of the Merger Agreement in accordance with the terms thereof, (iii) the occurrence of any event that terminates the Guarantor’s (as defined in the Guarantee) obligations or liabilities under Section 6 of the Guarantee (as defined below), (iv) the date as of which Investor or its assigns funds an amount equal to the Commitment hereunder (but such termination and expiration will occur only after such funding), (v) the date on which any Legal Proceeding is brought by the Company under or with respect to (x) the Guarantee (as defined below), or (y)(A) any Guarantor (as defined in the Guarantee or any Other Guarantee) (in its capacity as such) or (B) any Guarantor Affiliate (as defined in the Guarantee or any Other Guarantee) (in its capacity as such) (in each case of (A) and (B) other than in respect of a Guaranteed Obligation (as defined in the Guarantee or any Other Guarantee) or a Legal Proceeding for specific performance under and in accordance with the terms of this letter and the Merger Agreement), (vi) the valid termination of the Support Agreement by Investor pursuant to Section 3 thereof, or (vii) the date on which any other Legal Proceeding is brought by the Company in connection with this letter, the Guarantee, the Support Agreement, the Merger Agreement or any transaction contemplated hereby or thereby or otherwise relating thereto, or is brought by the Company against Investor or any Affiliate thereof (other than an ordinary course commercial dispute with any portfolio company of Investor or any Affiliate thereof), in each case other than Guarantee Claims, Merger Agreement Claims or Equity Commitment Claims (in each case, as defined in the Guarantee) (such earliest date, the “Commitment Expiration Date”); provided, that Investor will not be liable for a breach of its obligations to fund the Commitment under paragraph 1 of this letter unless Parent is also liable for a breach of the Merger Agreement; provided, further, that to seek recovery from Investor for any such breach of this letter, a Legal Proceeding must be commenced against Investor with respect thereto in a court of competent jurisdiction no later than thirty (30) days following the termination of the Commitment hereunder. From and after the Commitment Expiration Date, neither Investor nor any Non-Recourse Parent Party (as defined below) shall have any further liability or obligation to any Person hereunder; provided, however, that, for the avoidance of doubt, such termination shall not, in and of itself, relieve any Person of any liability or obligation it may have under the Guarantee; provided, further, that any Legal Proceeding or claim commenced by the Company in a court of competent jurisdiction within thirty (30) days following the Commitment Expiration Date and arising out of a purported breach of this letter shall survive any termination of the Commitment until the final and non-appealable resolution of such Legal Proceeding or claim, otherwise no rights of the Company shall survive the Commitment Expiration Date.

 

Page 2


4. This letter shall inure to the benefit of and be binding upon Parent and Investor. Investor acknowledges that (i) Parent shall be entitled to specifically enforce the obligations of Investor to satisfy the Equity Commitment when all of the conditions to funding the Commitment set forth in this letter have been satisfied, and (ii) the Company is an express third party beneficiary hereof (including, without limitation, with respect to Investor’s representations, warranties, covenants, and agreements contained in this letter) entitled to specifically enforce the obligations of Investor against Investor to the full extent hereof in connection with the Company’s exercise of its rights under and in accordance with Section 9.10(b) of the Merger Agreement and, in connection therewith, the Company has the right to obtain an injunction, or other appropriate form of specific performance or equitable relief, to cause the Parent to cause, or to directly cause, Investor to fund, directly or indirectly, the Commitment as, and only to the extent permitted by, this letter, in each case when all of the conditions to funding the Commitment set forth in this letter have been satisfied and in connection with the exercise of its rights under and in accordance with Section 9.10(b) of the Merger Agreement, and the Company shall have no other rights or remedies hereunder. Investor accordingly agrees, subject in all respects to Section 9.10(b) of the Merger Agreement, not to oppose the granting of an injunction, specific performance or other equitable relief on the basis that the Company has an adequate remedy at law or an award of specific performance is not an appropriate remedy for any reason at law or equity. Investor further agrees that the Company shall not be required to post a bond or undertaking in connection with such order or injunction sought in connection with the Company’s exercise of its rights under and in accordance with the terms of Section 9.10(b) of the Merger Agreement or under and in accordance with this letter. Investor acknowledges and agrees that (a) Parent is delivering a copy of this letter to the Company and that the Company is relying on the obligations and commitments of Investor hereunder in connection with the Company’s decision to enter into and consummate the transactions contemplated by the Merger Agreement, (b) the availability of monetary damages from the Buyer Parties in the Merger Agreement and the Guarantors in the provisions set forth in the Guarantees (i) are not intended to and do not adequately compensate for the harm that would result from a breach of the Merger Agreement or a breach of Investor’s obligations to fund the Commitment in accordance with the terms of this letter and (ii) shall not be construed to diminish or otherwise impair in any respect the Company’s right to specific enforcement to cause Parent to cause, or to directly cause, Investor to fund, directly or indirectly, the Commitment under this letter, and to cause the Buyer Parties to consummate the transactions contemplated by the Merger Agreement under Section 9.10(b) of the Merger Agreement, and (c) the right of specific performance under this letter and Section 9.10(b) of the Merger Agreement are an integral part of the transactions contemplated by the Merger Agreement and without those rights, the Company would not have entered into the Merger Agreement. For the avoidance of doubt, the remedies available to the Company under Section 9.10(b) of the Merger Agreement and under this letter shall be in addition to any other remedy to which the Company is entitled, and the election to pursue any injunction or specific performance under Section 9.10(b) of the Merger Agreement and/or this letter shall not restrict, impair or otherwise limit the Company from receiving monetary damages pursuant to Section 9.10(b) of the Merger Agreement in lieu of specific performance; provided, that, without limiting the ability of the Company to seek both remedies, under no circumstances shall the Company be permitted or entitled to receive both a grant of specific performance under Section 9.10(b) of the Merger Agreement that results in the occurrence of the Closing and payment of monetary damages from the Buyer Parties pursuant to the Merger Agreement. Except for the rights of the Company set forth in this paragraph 4, nothing in this letter, express or implied, is intended to confer upon any Person other than Parent, Investor and the Company any rights or remedies under, or by reason of, or any rights to enforce or cause Parent to enforce, the Commitment or any provisions of this letter or to confer upon any Person any rights or remedies against any Person other than Investor under or by reason of this letter. Without limiting the foregoing, no Person (other than Parent or the Company only on the terms, and subject to the limitations, set forth in this paragraph 4 and Section 9.10(b) of the Merger Agreement, as applicable) shall have any right to specifically enforce this letter or to cause Parent to specifically enforce this letter.

 

Page 3


5. None of Investor, Parent or the Company may assign their respective rights, interests or obligations hereunder to any other person without the prior written consent of the Company (in the case of an assignment by Investor or Parent) or Investor (in the case of an assignment by the Company), and any attempted assignment without such required consent shall be null and void and of no force or effect; provided, however, that Investor reserves the right, prior to or after execution of definitive documentation for the financing transactions contemplated hereby, to assign any portion of the Commitment to one or more of its Affiliates, financing sources or other investors, and only upon the actual funding of such assigned portion of the Commitment to Parent in accordance with this letter effective upon the Closing, Investor shall have no further obligation to Parent (or any other person) with respect to such funded assigned portion. Notwithstanding the foregoing, Investor acknowledges and agrees that, except to the extent otherwise agreed in writing by the Company, any such assignment shall not relieve Investor of its obligation to invest the full amount of the Commitment. Subject to the foregoing, all of the terms and provisions of this letter shall inure to the benefit of and be binding upon the parties hereto and the Company and their respective successors and permitted assigns.

6. Concurrently with the execution and delivery of this letter, Investor is executing and delivering to the Company a Limited Guarantee, dated as of the date hereof (the “Guarantee”), in favor of the Company in respect of 21.49% of the Buyer Parties’ obligations under the Merger Agreement to pay the Parent Termination Fee and other payment obligations under the Merger Agreement as set forth therein, in each case pursuant to the terms and conditions of, and subject to the limitations of, the Merger Agreement and the Guarantee. The Company’s remedies against Investor under the Guarantee and against the Other Guarantors under the Other Limited Guarantees (as such terms are defined in the Guarantee), the Company’s rights to specific performance under this letter and the Company’s remedies against the Buyer Parties under the Merger Agreement and/or against Vista Equity Partners Management, LLC (“Vista Management”) under the Confidentiality Agreement shall be, and are intended to be, the sole and exclusive direct or indirect rights of and remedies available to the Company or any of its Affiliates against (i) Investor or any of the Buyer Parties and (ii) any former, current or future direct or indirect equity holder, equity financing source, controlling person, director, officer, employee, agent, advisor, Affiliate, member, manager, general or limited partner or assignee of Investor or any of the Buyer Parties or any former, current or future direct or indirect equity holder, equity financing source, controlling person, director, officer, employee, agent, general or limited partner, member, manager, Affiliate, representative or assignee of any of the foregoing (other than Investor to the extent provided in the Guarantee and this letter and the Buyer Parties to the extent provided in the Merger Agreement) (each of such persons and entities described in clause (ii), excluding Investor and each of the Buyer Parties, being referred to as a “Non-Recourse Parent Party”) in respect of any liabilities or obligations arising under, or in connection with, this letter or the Merger Agreement or any of the transactions contemplated hereby or thereby, including in the event any of the Buyer Parties breaches its obligations under the Merger Agreement, whether or not such Buyer Party’s breach is caused by Investor’s breach of its obligations under this letter. Notwithstanding anything to the contrary set forth in this paragraph or in the Guarantee, the Company, as the express third party beneficiary hereunder on the terms, and subject to the conditions, set forth in paragraph 4 of this letter, may cause the Buyer Parties to, or to directly, cause the Commitment to be funded as, and only to the extent, permitted by the exercise of the Company’s rights under Section 9.10(b) of the Merger Agreement or on the terms, and subject to the conditions, set forth in paragraphs 1 and 3 of this letter. Notwithstanding anything to the contrary contained herein or in the Guarantee, subject to the Company’s ability to seek both remedies, under no circumstance shall the Company be permitted or entitled to receive both a grant of (a) specific performance to fund the Commitment that results in the consummation of the Closing and (b) any monetary damages (including payment of the Parent Termination Fee).

 

Page 4


7. Notwithstanding anything that may be expressed or implied in this letter or any document or instrument delivered in connection herewith, and notwithstanding the fact that Investor is a limited partnership, Parent covenants, agrees and acknowledges that no Person other than Investor shall have any obligation hereunder and that no recourse hereunder or under any documents or instruments delivered in connection herewith or therewith shall be had against, and no personal liability whatsoever shall attach to, be imposed on or otherwise be incurred by, any Non-Recourse Parent Party for any obligations of Investor under this letter or for any claim based on, in respect of or by reason of any such obligations or their creation, through any Buyer Party or otherwise, whether by or through attempted piercing of the corporate veil, by or through a claim by or on behalf of Parent against any Non-Recourse Parent Party, by the enforcement of any assessment or by any legal or equitable proceeding, by virtue of any statute, regulation or applicable law, or otherwise. Under no circumstances shall Investor be liable to the Company or any other Person for consequential, punitive, exemplary, multiple, special or similar damages, or for lost profits.

8. This letter, the Merger Agreement, the Confidentiality Agreement, the Support Agreement and the Guarantee reflect the entire understanding of the parties with respect to the subject matter hereof and thereof and shall not be contradicted or qualified by any other, and supersedes each other, agreement, oral or written, before the date hereof. This letter may not be waived, amended or modified except by an instrument in writing signed by each of the parties hereto and the Company. Any such waiver shall constitute a waiver only with respect to the specific matter described in such writing and shall in no way impair the rights of the party granting such waiver in any other respect or at any other time. The waiver by any of the parties hereto of a breach of or a default under any of the provisions of this letter, or a failure to or delay in exercising any right or privilege hereunder, shall not be construed as a waiver of any other breach or default of a similar nature, or as a waiver of any of such provisions, rights or privileges hereunder. No failure or delay by any party or the Company in exercising any right 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. Notwithstanding anything to the contrary set forth herein, neither this letter nor the Commitment shall be effective unless there has been prior or concurrent execution and delivery of the Merger Agreement by each of the parties thereto.

9. Notwithstanding anything that may be expressed or implied in this letter, each of Parent and the Company, by its acceptance, directly or indirectly, of the benefits of this letter, covenants, agrees and acknowledges that no Person other than the undersigned shall have any obligation hereunder and that no recourse hereunder, under the Merger Agreement, or under any documents or instruments delivered in connection herewith or therewith shall be had against any former, current or future direct or indirect equity holder, equity financing source, controlling person, director, officer, employee, agent, advisor, Affiliate, member, manager, general or limited partner or assignee (other than a permitted assignee of the Commitment hereunder) of the undersigned (and to the extent a portion of the Commitment is assigned to one or more permitted assignees, such permitted assignees) or any former, current or future direct or indirect equity holder, equity financing source, controlling person, director, officer, employee, general or limited partner, member, manager, Affiliate, agent, representative or assignee (other than a permitted assignee of the Commitment hereunder) of any of the foregoing (other than Investor and each of the Buyer Parties) (each of such persons and entities (excluding Investor and each of the Buyer Parties), a “Related Person”), whether by or through attempted piercing of the corporate veil, or by or through a claim by or on behalf of the Company against any Related Person, whether by the enforcement of any judgment or assessment or by any legal or equitable proceeding, or by virtue of any statute, regulation or applicable law, it being expressly agreed and acknowledged that no personal liability whatsoever shall attach to, be imposed on or otherwise be incurred by any Related Person in connection with this letter, the Merger Agreement or any documents or instrument delivered in connection herewith or for any claim based on, in respect of, or by reason of such obligations or their creation. Each Related Person shall be a third party beneficiary of the provisions set forth in paragraph 9.

 

Page 5


10. This letter shall be treated as confidential and is being provided to Parent and the Company solely in connection with their execution of the Merger Agreement. This letter may not be used, circulated, quoted or otherwise referred to in any document, except with the prior written consent of the undersigned or as required by applicable Law. Without limiting the foregoing, the Company and each party hereto may disclose this letter (i) to the extent required by the applicable rules of any national securities exchange or required (or requested by the SEC) in connection with any SEC filings relating to the Merger, (ii) by interrogatory, subpoena, civil investigative demand or similar process or (iii) in connection with enforcing this letter, the Guarantee or the Merger Agreement.

11. Section 9.11 (Governing Law) and, subject to paragraph 12 below, Section 9.12(a) (General Jurisdiction) of the Merger Agreement are incorporated by reference herein mutatis mutandis.

12. Section 9.13 (Waiver of Jury Trial) of the Merger Agreement is incorporated by reference herein mutatis mutandis.

All communications to Parent in relation to this letter should be addressed to:

 

Orange Holdco, LLC

c/o Vista Equity Partners Management, LLC

Four Embarcadero Center, 20th Floor

San Francisco, CA 94111

Attn:

  

Rod Aliabadi

  

Nick Prickel

  

Christina Lema

Email:

  

[***]

  

[***]

  

[***]

 

with a copy (which shall not constitute notice) to:

 

Kirkland & Ellis LLP

601 Lexington Avenue

New York, NY 10022

Attn:

  

David M. Klein, P.C.

  

Chelsea Darnell

Email:

  

[***]

  

[***]

and

  

Kirkland & Ellis LLP

555 California Street, Suite 2900

San Francisco, CA 94104

Attn:

  

Stuart E. Casillas, P.C.

  

Ari Levi

Email:

   [***]
  

[***]

 

Page 6


All communications to the Investor in relation to this letter should be addressed to:

 

Vista Equity Partners Fund VII, L.P.

c/o Vista Equity Partners Management, LLC

Four Embarcadero Center, 20th Floor

San Francisco, CA 94111

Attn:

  

Rod Aliabadi

  

Nick Prickel

  

Christina Lema

Email:

  

[***]

 

with a copy (which shall not constitute notice) to:

 

Kirkland & Ellis LLP

601 Lexington Avenue

New York, NY 10022

Attn:

  

David M. Klein, P.C.

  

Chelsea Darnell

Email:

  

[***]

  

and

  

Kirkland & Ellis LLP

555 California Street, Suite 2900

San Francisco, CA 94104

Attn:

  

Stuart E. Casillas, P.C.

  

Ari Levi

Email:

  

[***]

13. Each party to this letter hereby represents and warrants with respect to itself to the other party that: (a) it is duly organized and validly existing under the laws of its jurisdiction of organization, (b) it has all corporate, limited liability company, limited partnership or similar partnership power and authority to execute, deliver and perform this letter, (c) the execution, delivery and performance of this letter by it has been duly and validly authorized and approved by all necessary corporate, limited liability company, limited partnership or similar action, and no other proceedings or actions on its part are necessary therefor, (d) this letter has been duly and validly executed and delivered by it and constitutes a valid and legally binding obligation of it, enforceable against it in accordance with its terms, subject to laws of general application relating to bankruptcy, insolvency and the relief of debtors, (e) the execution, delivery and performance by it of this letter do not and will not (i) violate its organizational documents, (ii) violate any applicable Law, or (iii) result in any violation of, or default (with or without notice or lapse of time, or both) under, or give rise to a right of termination, cancelation or acceleration of any obligation, any contract to which it is a party, in any case, for which the violation, default or right would be reasonably likely to prevent or materially impede, interfere with, hinder or delay the consummation by it of the transactions contemplated by this letter on a timely basis, and (f) all approvals of, filings with and notifications to, any Governmental Authority or any other Person necessary for the due execution, delivery and performance of

 

Page 7


this letter by it have been obtained or made and all conditions thereof have been duly complied with, and no other action by, and no notice to or filing with, any Governmental Authority or other Person is required in connection with the execution, delivery or performance by it of this letter. In addition, Investor represents and warrants to Parent that Investor (x) has uncalled capital commitments equal to or in excess of the Commitment and its limited partners or other investors have the obligation to fund such capital, and access to funds necessary to fulfill the Commitment under this letter shall be available to Investor for as long as this letter and the Commitment hereunder shall remain in effect and (y) is fully familiar with the Merger Agreement, the Support Agreement and the respective other documents and instruments delivered in connection therewith. Investor covenants and agrees that (A) it will not take any action or omit to take any action that would or would reasonably be expected to cause or result in any of the foregoing representations and warranties to become untrue, and (B) in the event that Investor is required to make payments pursuant to the terms of this letter, it will call capital from the partners of Investor or its Affiliates or otherwise obtain funds in such amounts and at such times as necessary to fulfill its obligations under the terms of this letter. All representations, warranties, covenants and agreements of Investor contained herein shall survive the execution and delivery of this letter and shall be deemed made continuously, and shall continue in full force and effect, until the Commitment Expiration Date.

14. Each party acknowledges and agrees that (a) this letter is not intended to, and does not, create any agency, partnership, fiduciary or joint venture relationship between or among any of the parties hereto and neither this letter nor any other document or agreement entered into by any party hereto relating to the subject matter hereof shall be construed to suggest otherwise and (b) the obligations of Investor under this letter are solely contractual in nature.

15. If any term or other provision of this letter is invalid, illegal or incapable of being enforced by any rule of law or public policy, all other conditions and provisions of this letter shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any party hereto; provided, however, that this letter may not be enforced without giving effect to the provisions of paragraphs 6, 7, 8 and 9 of this letter. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the parties shall negotiate in good faith to modify this 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 extent possible. Each party agrees that it will use its reasonable best efforts to cooperate with the other parties to this letter in seeking and agreeing to an expedited schedule in any litigation seeking an injunction or order of specific performance.

16. This letter may be signed in two or more counterparts, any one of which need not contain the signature of more than one party, but all such counterparts taken together shall constitute one and the same agreement (including by electronic transmission, by facsimile or email in .pdf format).

[Signature page follows.]

 

Page 8


If you are in agreement with the terms of this letter, please forward an executed copy of this letter to the undersigned. We appreciate the opportunity to work with you on this transaction.

 

Yours sincerely,
VISTA EQUITY PARTNERS FUND VII, L.P.
By:   Vista Equity Partners Fund VII GP, L.P.
Its:   General Partner
By   VEPF VII GP, Ltd.
Its:   General Partner
By:   /s/ Robert F. Smith
Name:   Robert F. Smith
Title:   Director


Accepted and agreed to as of

the date first above written:

 

ORANJE HOLDCO, LLC
By:   /s/ Nicholas Prickel
Name:   Nicholas Prickel
Title:   Vice President
Exhibit (d)(viii)

Exhibit (d)(viii)

Vista Equity Partners Fund VIII, L.P.

c/o Vista Equity Partners Management, LLC

Four Embarcadero Center, 20th Floor

San Francisco, CA 94111

October 11, 2022

Oranje Holdco, LLC

c/o Vista Equity Partners Management, LLC

Four Embarcadero Center, 20th Floor

San Francisco, CA 94111

Attention: Christina Lema and Rod Aliabadi

Ladies and Gentlemen:

Reference is made to that certain Agreement and Plan of Merger (as the same may be amended, modified or restated in accordance with the terms thereof, the “Merger Agreement”), dated as of the date hereof, by and among Oranje Holdco, LLC, a Delaware limited liability company (“Parent” or “you”), Oranje Merger Sub, Inc., a Delaware corporation (“Merger Sub” and together with Parent, the “Buyer Parties”), and KnowBe4, Inc., a Delaware corporation (the “Company”), and that certain Support Agreement, dated as of the date hereof, by and among the Company, the Investor (as defined herein) and Parent (the “Support Agreement”). Capitalized terms used, but not otherwise defined, in this letter shall have the meanings ascribed to such terms in the Merger Agreement.

1. We are pleased to advise you that Vista Equity Partners Fund VIII, L.P., a Delaware limited partnership (“Investor”), hereby agrees, conditioned upon (i) the satisfaction, or written waiver by Parent, of all conditions to the obligations of the Buyer Parties to consummate the Merger as set forth in Sections 7.1 and 7.2 of the Merger Agreement (other than those conditions that by their terms are to be satisfied at the Closing, but subject to the satisfaction or written waiver by Parent (to the extent permitted thereunder and under the Support Agreement) of such conditions), (ii) the substantially contemporaneous funding of the Debt Financing at the Closing, and (iii) the substantially contemporaneous consummation of the Merger, to contribute to Parent, at or prior to the Closing in accordance with the terms and subject to the conditions set forth in this letter, directly or indirectly through one or more of its affiliated funds to be designated by it, an aggregate amount up to $1,712,775,754 (the “Commitment”) in cash in immediately available funds (subject to any reduction in accordance with the terms set forth in the last sentence of this paragraph 1), it being understood and agreed that Investor shall not, under any circumstances, be obligated under this letter to (or be obligated to cause any other Person to) contribute to, purchase equity from or otherwise provide funds to Parent (or any other Person in respect of the transactions contemplated by the Merger Agreement) in an aggregate amount in excess of the Commitment. The proceeds of the Commitment shall be used by Parent solely to satisfy the Buyer Parties’ obligations under the Merger Agreement. The amount of the Commitment may be reduced by Parent (a) on a dollar-for-dollar basis by the amount of any cash, cash equivalents and marketable securities of the Company on hand as of the Closing that is available to be used in connection with the transactions contemplated by the Merger Agreement (but solely to the extent it will be possible, notwithstanding such reduction, for the Buyer Parties to consummate the transactions contemplated by the Merger Agreement in accordance with the terms thereof), (b) in an amount specified by Parent and agreed to by the Investor solely to the extent it will be possible, notwithstanding such reduction, for the Buyer Parties to consummate the transactions contemplated by the Merger Agreement in accordance with the terms thereof, and/or (c) on a dollar-for-dollar basis by the amount of any third-party financing obtained by Parent or any of its Affiliates at or prior to the Closing, as applicable and to the extent agreed by Investor; provided, however, that the Commitment shall not be reduced pursuant to this clause


(c) unless and until such third party financing is funded at the Closing. Notwithstanding the prior sentence, the amount of the Commitment may not be reduced pursuant to the foregoing clause (b) or (c) in a manner that would reasonably be expected to impair, delay or prevent the consummation of the Merger.

2. Except as set forth in paragraph 4, the Commitment is solely for the benefit of Parent and is not intended (expressly or impliedly) to confer any benefits on, or create any rights in favor of, any other Person. Nothing set forth in this letter contains or gives, or shall be construed to contain or to give, any Person (other than Investor, Parent and the Company), including any Person acting in a representative capacity, any remedies under or by reason of, or any rights to enforce or cause Parent to enforce, the commitments set forth herein, nor shall anything in this letter be construed, to confer any rights, legal or equitable, in any Person other than Investor, Parent and the Company. Without limiting the foregoing, none of the creditors of Investor, any of the Buyer Parties or any of their respective Affiliates shall have any direct or indirect right to enforce this letter or to cause Parent to enforce this letter, other than as provided in and in accordance with paragraph 4.

3. Investor’s obligation to fund the Commitment will terminate and expire on the earliest to occur of (i) immediately following the later of the Effective Time and the deposit of the Exchange Fund pursuant to Section 2.9(b) of the Merger Agreement, (ii) the valid termination of the Merger Agreement in accordance with the terms thereof, (iii) the occurrence of any event that terminates the Guarantor’s (as defined in the Guarantee) obligations or liabilities under Section 6 of the Guarantee (as defined below), (iv) the date as of which Investor or its assigns funds an amount equal to the Commitment hereunder (but such termination and expiration will occur only after such funding), (v) the date on which any Legal Proceeding is brought by the Company under or with respect to (x) the Guarantee (as defined below), or (y)(A) any Guarantor (as defined in the Guarantee or any Other Guarantee) (in its capacity as such) or (B) any Guarantor Affiliate (as defined in the Guarantee or any Other Guarantee) (in its capacity as such) (in each case of (A) and (B) other than in respect of a Guaranteed Obligation (as defined in the Guarantee or any Other Guarantee) or a Legal Proceeding for specific performance under and in accordance with the terms of this letter and the Merger Agreement), (vi) the valid termination of the Support Agreement by Investor pursuant to Section 3 thereof, or (vii) the date on which any other Legal Proceeding is brought by the Company in connection with this letter, the Guarantee, the Support Agreement, the Merger Agreement or any transaction contemplated hereby or thereby or otherwise relating thereto, or is brought by the Company against Investor or any Affiliate thereof (other than an ordinary course commercial dispute with any portfolio company of Investor or any Affiliate thereof), in each case other than Guarantee Claims, Merger Agreement Claims or Equity Commitment Claims (in each case, as defined in the Guarantee) (such earliest date, the “Commitment Expiration Date”); provided, that Investor will not be liable for a breach of its obligations to fund the Commitment under paragraph 1 of this letter unless Parent is also liable for a breach of the Merger Agreement; provided, further, that to seek recovery from Investor for any such breach of this letter, a Legal Proceeding must be commenced against Investor with respect thereto in a court of competent jurisdiction no later than thirty (30) days following the termination of the Commitment hereunder. From and after the Commitment Expiration Date, neither Investor nor any Non-Recourse Parent Party (as defined below) shall have any further liability or obligation to any Person hereunder; provided, however, that, for the avoidance of doubt, such termination shall not, in and of itself, relieve any Person of any liability or obligation it may have under the Guarantee; provided, further, that any Legal Proceeding or claim commenced by the Company in a court of competent jurisdiction within thirty (30) days following the Commitment Expiration Date and arising out of a purported breach of this letter shall survive any termination of the Commitment until the final and non-appealable resolution of such Legal Proceeding or claim, otherwise no rights of the Company shall survive the Commitment Expiration Date.

 

Page 2


4. This letter shall inure to the benefit of and be binding upon Parent and Investor. Investor acknowledges that (i) Parent shall be entitled to specifically enforce the obligations of Investor to satisfy the Equity Commitment when all of the conditions to funding the Commitment set forth in this letter have been satisfied, and (ii) the Company is an express third party beneficiary hereof (including, without limitation, with respect to Investor’s representations, warranties, covenants, and agreements contained in this letter) entitled to specifically enforce the obligations of Investor against Investor to the full extent hereof in connection with the Company’s exercise of its rights under and in accordance with Section 9.10(b) of the Merger Agreement and, in connection therewith, the Company has the right to obtain an injunction, or other appropriate form of specific performance or equitable relief, to cause the Parent to cause, or to directly cause, Investor to fund, directly or indirectly, the Commitment as, and only to the extent permitted by, this letter, in each case when all of the conditions to funding the Commitment set forth in this letter have been satisfied and in connection with the exercise of its rights under and in accordance with Section 9.10(b) of the Merger Agreement, and the Company shall have no other rights or remedies hereunder. Investor accordingly agrees, subject in all respects to Section 9.10(b) of the Merger Agreement, not to oppose the granting of an injunction, specific performance or other equitable relief on the basis that the Company has an adequate remedy at law or an award of specific performance is not an appropriate remedy for any reason at law or equity. Investor further agrees that the Company shall not be required to post a bond or undertaking in connection with such order or injunction sought in connection with the Company’s exercise of its rights under and in accordance with the terms of Section 9.10(b) of the Merger Agreement or under and in accordance with this letter. Investor acknowledges and agrees that (a) Parent is delivering a copy of this letter to the Company and that the Company is relying on the obligations and commitments of Investor hereunder in connection with the Company’s decision to enter into and consummate the transactions contemplated by the Merger Agreement, (b) the availability of monetary damages from the Buyer Parties in the Merger Agreement and the Guarantors in the provisions set forth in the Guarantees (i) are not intended to and do not adequately compensate for the harm that would result from a breach of the Merger Agreement or a breach of Investor’s obligations to fund the Commitment in accordance with the terms of this letter and (ii) shall not be construed to diminish or otherwise impair in any respect the Company’s right to specific enforcement to cause Parent to cause, or to directly cause, Investor to fund, directly or indirectly, the Commitment under this letter, and to cause the Buyer Parties to consummate the transactions contemplated by the Merger Agreement under Section 9.10(b) of the Merger Agreement, and (c) the right of specific performance under this letter and Section 9.10(b) of the Merger Agreement are an integral part of the transactions contemplated by the Merger Agreement and without those rights, the Company would not have entered into the Merger Agreement. For the avoidance of doubt, the remedies available to the Company under Section 9.10(b) of the Merger Agreement and under this letter shall be in addition to any other remedy to which the Company is entitled, and the election to pursue any injunction or specific performance under Section 9.10(b) of the Merger Agreement and/or this letter shall not restrict, impair or otherwise limit the Company from receiving monetary damages pursuant to Section 9.10(b) of the Merger Agreement in lieu of specific performance; provided, that, without limiting the ability of the Company to seek both remedies, under no circumstances shall the Company be permitted or entitled to receive both a grant of specific performance under Section 9.10(b) of the Merger Agreement that results in the occurrence of the Closing and payment of monetary damages from the Buyer Parties pursuant to the Merger Agreement. Except for the rights of the Company set forth in this paragraph 4, nothing in this letter, express or implied, is intended to confer upon any Person other than Parent, Investor and the Company any rights or remedies under, or by reason of, or any rights to enforce or cause Parent to enforce, the Commitment or any provisions of this letter or to confer upon any Person any rights or remedies against any Person other than Investor under or by reason of this letter. Without limiting the foregoing, no Person (other than Parent or the Company only on the terms, and subject to the limitations, set forth in this paragraph 4 and Section 9.10(b) of the Merger Agreement, as applicable) shall have any right to specifically enforce this letter or to cause Parent to specifically enforce this letter.

 

Page 3


5. None of Investor, Parent or the Company may assign their respective rights, interests or obligations hereunder to any other person without the prior written consent of the Company (in the case of an assignment by Investor or Parent) or Investor (in the case of an assignment by the Company), and any attempted assignment without such required consent shall be null and void and of no force or effect; provided, however, that Investor reserves the right, prior to or after execution of definitive documentation for the financing transactions contemplated hereby, to assign any portion of the Commitment to one or more of its Affiliates, financing sources or other investors, and only upon the actual funding of such assigned portion of the Commitment to Parent in accordance with this letter effective upon the Closing, Investor shall have no further obligation to Parent (or any other person) with respect to such funded assigned portion. Notwithstanding the foregoing, Investor acknowledges and agrees that, except to the extent otherwise agreed in writing by the Company, any such assignment shall not relieve Investor of its obligation to invest the full amount of the Commitment. Subject to the foregoing, all of the terms and provisions of this letter shall inure to the benefit of and be binding upon the parties hereto and the Company and their respective successors and permitted assigns.

6. Concurrently with the execution and delivery of this letter, Investor is executing and delivering to the Company a Limited Guarantee, dated as of the date hereof (the “Guarantee”), in favor of the Company in respect of 78.51% of the Buyer Parties’ obligations under the Merger Agreement to pay the Parent Termination Fee and other payment obligations under the Merger Agreement as set forth therein, in each case pursuant to the terms and conditions of, and subject to the limitations of, the Merger Agreement and the Guarantee. The Company’s remedies against Investor under the Guarantee and against the Other Guarantors under the Other Limited Guarantees (as such terms are defined in the Guarantee), the Company’s rights to specific performance under this letter and the Company’s remedies against the Buyer Parties under the Merger Agreement and/or against Vista Equity Partners Management, LLC (“Vista Management”) under the Confidentiality Agreement shall be, and are intended to be, the sole and exclusive direct or indirect rights of and remedies available to the Company or any of its Affiliates against (i) Investor or any of the Buyer Parties and (ii) any former, current or future direct or indirect equity holder, equity financing source, controlling person, director, officer, employee, agent, advisor, Affiliate, member, manager, general or limited partner or assignee of Investor or any of the Buyer Parties or any former, current or future direct or indirect equity holder, equity financing source, controlling person, director, officer, employee, agent, general or limited partner, member, manager, Affiliate, representative or assignee of any of the foregoing (other than Investor to the extent provided in the Guarantee and this letter and the Buyer Parties to the extent provided in the Merger Agreement) (each of such persons and entities described in clause (ii), excluding Investor and each of the Buyer Parties, being referred to as a “Non-Recourse Parent Party”) in respect of any liabilities or obligations arising under, or in connection with, this letter or the Merger Agreement or any of the transactions contemplated hereby or thereby, including in the event any of the Buyer Parties breaches its obligations under the Merger Agreement, whether or not such Buyer Party’s breach is caused by Investor’s breach of its obligations under this letter. Notwithstanding anything to the contrary set forth in this paragraph or in the Guarantee, the Company, as the express third party beneficiary hereunder on the terms, and subject to the conditions, set forth in paragraph 4 of this letter, may cause the Buyer Parties to, or to directly, cause the Commitment to be funded as, and only to the extent, permitted by the exercise of the Company’s rights under Section 9.10(b) of the Merger Agreement or on the terms, and subject to the conditions, set forth in paragraphs 1 and 3 of this letter. Notwithstanding anything to the contrary contained herein or in the Guarantee, subject to the Company’s ability to seek both remedies, under no circumstance shall the Company be permitted or entitled to receive both a grant of (a) specific performance to fund the Commitment that results in the consummation of the Closing and (b) any monetary damages (including payment of the Parent Termination Fee).

 

Page 4


7. Notwithstanding anything that may be expressed or implied in this letter or any document or instrument delivered in connection herewith, and notwithstanding the fact that Investor is a limited partnership, Parent covenants, agrees and acknowledges that no Person other than Investor shall have any obligation hereunder and that no recourse hereunder or under any documents or instruments delivered in connection herewith or therewith shall be had against, and no personal liability whatsoever shall attach to, be imposed on or otherwise be incurred by, any Non-Recourse Parent Party for any obligations of Investor under this letter or for any claim based on, in respect of or by reason of any such obligations or their creation, through any Buyer Party or otherwise, whether by or through attempted piercing of the corporate veil, by or through a claim by or on behalf of Parent against any Non-Recourse Parent Party, by the enforcement of any assessment or by any legal or equitable proceeding, by virtue of any statute, regulation or applicable law, or otherwise. Under no circumstances shall Investor be liable to the Company or any other Person for consequential, punitive, exemplary, multiple, special or similar damages, or for lost profits.

8. This letter, the Merger Agreement, the Confidentiality Agreement, the Support Agreement and the Guarantee reflect the entire understanding of the parties with respect to the subject matter hereof and thereof and shall not be contradicted or qualified by any other, and supersedes each other, agreement, oral or written, before the date hereof. This letter may not be waived, amended or modified except by an instrument in writing signed by each of the parties hereto and the Company. Any such waiver shall constitute a waiver only with respect to the specific matter described in such writing and shall in no way impair the rights of the party granting such waiver in any other respect or at any other time. The waiver by any of the parties hereto of a breach of or a default under any of the provisions of this letter, or a failure to or delay in exercising any right or privilege hereunder, shall not be construed as a waiver of any other breach or default of a similar nature, or as a waiver of any of such provisions, rights or privileges hereunder. No failure or delay by any party or the Company in exercising any right 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. Notwithstanding anything to the contrary set forth herein, neither this letter nor the Commitment shall be effective unless there has been prior or concurrent execution and delivery of the Merger Agreement by each of the parties thereto.

9. Notwithstanding anything that may be expressed or implied in this letter, each of Parent and the Company, by its acceptance, directly or indirectly, of the benefits of this letter, covenants, agrees and acknowledges that no Person other than the undersigned shall have any obligation hereunder and that no recourse hereunder, under the Merger Agreement, or under any documents or instruments delivered in connection herewith or therewith shall be had against any former, current or future direct or indirect equity holder, equity financing source, controlling person, director, officer, employee, agent, advisor, Affiliate, member, manager, general or limited partner or assignee (other than a permitted assignee of the Commitment hereunder) of the undersigned (and to the extent a portion of the Commitment is assigned to one or more permitted assignees, such permitted assignees) or any former, current or future direct or indirect equity holder, equity financing source, controlling person, director, officer, employee, general or limited partner, member, manager, Affiliate, agent, representative or assignee (other than a permitted assignee of the Commitment hereunder) of any of the foregoing (other than Investor and each of the Buyer Parties) (each of such persons and entities (excluding Investor and each of the Buyer Parties), a “Related Person”), whether by or through attempted piercing of the corporate veil, or by or through a claim by or on behalf of the Company against any Related Person, whether by the enforcement of any judgment or assessment or by any legal or equitable proceeding, or by virtue of any statute, regulation or applicable law, it being expressly agreed and acknowledged that no personal liability whatsoever shall attach to, be imposed on or otherwise be incurred by any Related Person in connection with this letter, the Merger Agreement or any documents or instrument delivered in connection herewith or for any claim based on, in respect of, or by reason of such obligations or their creation. Each Related Person shall be a third party beneficiary of the provisions set forth in paragraph 9.

 

Page 5


10. This letter shall be treated as confidential and is being provided to Parent and the Company solely in connection with their execution of the Merger Agreement. This letter may not be used, circulated, quoted or otherwise referred to in any document, except with the prior written consent of the undersigned or as required by applicable Law. Without limiting the foregoing, the Company and each party hereto may disclose this letter (i) to the extent required by the applicable rules of any national securities exchange or required (or requested by the SEC) in connection with any SEC filings relating to the Merger, (ii) by interrogatory, subpoena, civil investigative demand or similar process or (iii) in connection with enforcing this letter, the Guarantee or the Merger Agreement.

11. Section 9.11 (Governing Law) and, subject to paragraph 12 below, Section 9.12(a) (General Jurisdiction) of the Merger Agreement are incorporated by reference herein mutatis mutandis.

12. Section 9.13 (Waiver of Jury Trial) of the Merger Agreement is incorporated by reference herein mutatis mutandis.

All communications to Parent in relation to this letter should be addressed to:

 

Orange Holdco, LLC

  

c/o Vista Equity Partners Management, LLC

  

Four Embarcadero Center, 20th Floor

  

San Francisco, CA 94111

  

Attn:

   Rod Aliabadi
   Nick Prickel
   Christina Lema

Email:

  

[***]

with a copy (which shall not constitute notice) to:

 

Kirkland & Ellis LLP

601 Lexington Avenue

New York, NY 10022

Attn:

   David M. Klein, P.C.
   Chelsea Darnell

Email:

  

[***]

and

  

Kirkland & Ellis LLP

555 California Street, Suite 2900

San Francisco, CA 94104

Attn:

   Stuart E. Casillas, P.C.
   Ari Levi

Email:

  

[***]

 

Page 6


All communications to the Investor in relation to this letter should be addressed to:

 

Vista Equity Partners Fund VIII, L.P.

c/o Vista Equity Partners Management, LLC

  

Four Embarcadero Center, 20th Floor

  

San Francisco, CA 94111

  

Attn:

   Rod Aliabadi
   Nick Prickel
   Christina Lema

Email:

  

[***]

with a copy (which shall not constitute notice) to:

 

Kirkland & Ellis LLP

  

601 Lexington Avenue

  

New York, NY 10022

  

Attn:

   David M. Klein, P.C.
   Chelsea Darnell

Email:

  

[***]

and

  

Kirkland & Ellis LLP

  

555 California Street, Suite 2900

  

San Francisco, CA 94104

  

Attn:

   Stuart E. Casillas, P.C.
   Ari Levi

Email:

   [***]

13. Each party to this letter hereby represents and warrants with respect to itself to the other party that: (a) it is duly organized and validly existing under the laws of its jurisdiction of organization, (b) it has all corporate, limited liability company, limited partnership or similar partnership power and authority to execute, deliver and perform this letter, (c) the execution, delivery and performance of this letter by it has been duly and validly authorized and approved by all necessary corporate, limited liability company, limited partnership or similar action, and no other proceedings or actions on its part are necessary therefor, (d) this letter has been duly and validly executed and delivered by it and constitutes a valid and legally binding obligation of it, enforceable against it in accordance with its terms, subject to laws of general application relating to bankruptcy, insolvency and the relief of debtors, (e) the execution, delivery and performance by it of this letter do not and will not (i) violate its organizational documents, (ii) violate any applicable Law, or (iii) result in any violation of, or default (with or without notice or lapse of time, or both) under, or give rise to a right of termination, cancelation or acceleration of any obligation, any contract to which it is a party, in any case, for which the violation, default or right would be reasonably likely to prevent or materially impede, interfere with, hinder or delay the consummation by it of the transactions

 

Page 7


contemplated by this letter on a timely basis, and (f) all approvals of, filings with and notifications to, any Governmental Authority or any other Person necessary for the due execution, delivery and performance of this letter by it have been obtained or made and all conditions thereof have been duly complied with, and no other action by, and no notice to or filing with, any Governmental Authority or other Person is required in connection with the execution, delivery or performance by it of this letter. In addition, Investor represents and warrants to Parent that Investor (x) has uncalled capital commitments equal to or in excess of the Commitment and its limited partners or other investors have the obligation to fund such capital, and access to funds necessary to fulfill the Commitment under this letter shall be available to Investor for as long as this letter and the Commitment hereunder shall remain in effect and (y) is fully familiar with the Merger Agreement, the Support Agreement and the respective other documents and instruments delivered in connection therewith. Investor covenants and agrees that (A) it will not take any action or omit to take any action that would or would reasonably be expected to cause or result in any of the foregoing representations and warranties to become untrue, and (B) in the event that Investor is required to make payments pursuant to the terms of this letter, it will call capital from the partners of Investor or its Affiliates or otherwise obtain funds in such amounts and at such times as necessary to fulfill its obligations under the terms of this letter. All representations, warranties, covenants and agreements of Investor contained herein shall survive the execution and delivery of this letter and shall be deemed made continuously, and shall continue in full force and effect, until the Commitment Expiration Date.

14. Each party acknowledges and agrees that (a) this letter is not intended to, and does not, create any agency, partnership, fiduciary or joint venture relationship between or among any of the parties hereto and neither this letter nor any other document or agreement entered into by any party hereto relating to the subject matter hereof shall be construed to suggest otherwise and (b) the obligations of Investor under this letter are solely contractual in nature.

15. If any term or other provision of this letter is invalid, illegal or incapable of being enforced by any rule of law or public policy, all other conditions and provisions of this letter shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any party hereto; provided, however, that this letter may not be enforced without giving effect to the provisions of paragraphs 6, 7, 8 and 9 of this letter. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the parties shall negotiate in good faith to modify this 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 extent possible. Each party agrees that it will use its reasonable best efforts to cooperate with the other parties to this letter in seeking and agreeing to an expedited schedule in any litigation seeking an injunction or order of specific performance.

16. This letter may be signed in two or more counterparts, any one of which need not contain the signature of more than one party, but all such counterparts taken together shall constitute one and the same agreement (including by electronic transmission, by facsimile or email in .pdf format).

[Signature page follows.]

 

Page 8


If you are in agreement with the terms of this letter, please forward an executed copy of this letter to the undersigned. We appreciate the opportunity to work with you on this transaction.

 

Yours sincerely,
VISTA EQUITY PARTNERS FUND VIII, L.P.
By:   Vista Equity Partners Fund VIII GP, L.P.
Its:   General Partner
By   VEPF VIII GP, LLC
Its:   General Partner
By:   /s/ Robert F. Smith
Name:   Robert F. Smith
Title:   Managing Member


Accepted and agreed to as of

the date first above written:

ORANJE HOLDCO, LLC
By:   /s/ Nicholas Prickel
Name:   Nicholas Prickel
Title:   Vice President
Exhibit (d)(ix)

Exhibit (d)(ix)

KKR Knowledge Investors L.P.

c/o Kohlberg Kravis Roberts & Co. L.P.

30 Hudson Yards

New York, NY 10001

October 11, 2022

Oranje Holdco, LLC

c/o Vista Equity Partners Management, LLC

Four Embarcadero Center, 20th Floor

San Francisco, California 94111

Attn:    Rod Aliabadi
   Nick Prickel
   Christina Lema
Email:    raliabadi@vistaequitypartners.com
   nprickel@vistaequitypartners.com
   clema@vistaequitypartners.com

Ladies and Gentlemen:

Reference is made to that certain Agreement and Plan of Merger (as the same may be amended, modified or restated in accordance with the terms thereof, the “Merger Agreement”), dated as of the date hereof, by and among Oranje Holdco, LLC, a Delaware limited liability company (“Parent” or “you”), Oranje Merger Sub, Inc., a Delaware corporation (“Merger Sub” and together with Parent, the “Buyer Parties”), and KnowBe4, Inc., a Delaware corporation (the “Company”), and that certain Support Agreement, dated as of the date hereof, by and among the Company, the Investor (as defined herein) and Parent (the “Support Agreement”). Capitalized terms used, but not otherwise defined, in this letter shall have the meanings ascribed to such terms in the Merger Agreement.

1. We are pleased to advise you that KKR Knowledge Investors L.P., a Delaware limited partnership (“Investor”), hereby agrees, conditioned upon (i) the satisfaction, or written waiver by Parent, of all conditions to the obligations of the Buyer Parties to consummate the Merger as set forth in Sections 7.1 and 7.2 of the Merger Agreement (other than those conditions that by their terms are to be satisfied at the Closing, but subject to the satisfaction or written waiver by Parent (to the extent permitted thereunder and under the Support Agreement) of such conditions), (ii) the substantially contemporaneous funding of the Debt Financing at the Closing, and (iii) the substantially contemporaneous consummation of the Merger, to contribute to Parent, at or prior to the Closing in accordance with the terms and subject to the conditions set forth in this letter, directly or indirectly through one or more of its affiliated funds to be designated by it, an aggregate amount up to $300,000,005.70 (the “Commitment”) in cash in immediately available funds (subject to any reduction in accordance with the terms set forth in the last sentence of this paragraph 1), it being understood and agreed that Investor shall not, under any circumstances, be obligated under this letter to (or be obligated to cause any other Person to) contribute to, purchase equity from or otherwise provide funds to Parent (or any other Person in respect of the transactions contemplated by the Merger Agreement) in an aggregate amount in excess of the Commitment. The proceeds of the Commitment shall be used by Parent solely to satisfy the Buyer Parties’ obligations under the Merger Agreement. The amount of the Commitment may be reduced by Parent (a) on a dollar-for-dollar basis by an amount equal to the Rollover Amount (as defined in the Support Agreement) of the Rollover Shares (as defined in the Support Agreement) actually contributed in the Exchange (as defined in the Support Agreement) pursuant to the terms and conditions set forth in the Support Agreement, (b) in an amount specified by Parent and agreed to by the Investor solely to the extent it will be possible, notwithstanding such reduction, for the Buyer


Parties to consummate the transactions contemplated by the Merger Agreement in accordance with the terms thereof, and/or (c) on a dollar-for-dollar basis by the amount of any third-party financing obtained by Parent or any of its Affiliates at or prior to the Closing, as applicable and to the extent agreed by Investor; provided, however, that the Commitment shall not be reduced pursuant to this clause (c) unless and until such third party financing is funded at the Closing. Notwithstanding the prior sentence, the amount of the Commitment may not be reduced pursuant to the foregoing clause (b) or (c) in a manner that would reasonably be expected to impair, delay or prevent the consummation of the Merger. Notwithstanding anything herein to the contrary, in no event shall the sum of (x) the Rollover Amount of the Rollover Shares actually contributed in the Exchange plus (y) the Equity Commitment required to be funded hereunder exceed $300,000,005.70 in the aggregate.

2. Except as set forth in paragraph 4, the Commitment is solely for the benefit of Parent and is not intended (expressly or impliedly) to confer any benefits on, or create any rights in favor of, any other Person. Nothing set forth in this letter contains or gives, or shall be construed to contain or to give, any Person (other than Investor, Parent and the Company), including any Person acting in a representative capacity, any remedies under or by reason of, or any rights to enforce or cause Parent to enforce, the commitments set forth herein, nor shall anything in this letter be construed, to confer any rights, legal or equitable, in any Person other than Investor, Parent and the Company. Without limiting the foregoing, none of the creditors of Investor, any of the Buyer Parties or any of their respective Affiliates shall have any direct or indirect right to enforce this letter or to cause Parent to enforce this letter, other than as provided in and in accordance with paragraph 4.

3. Investor’s obligation to fund the Commitment will terminate and expire on the earliest to occur of (i) immediately following the later of the Effective Time and the deposit of the Exchange Fund pursuant to Section 2.9(b) of the Merger Agreement, (ii) the valid termination of the Merger Agreement in accordance with the terms thereof, (iii) the date as of which Investor or its assigns funds an amount equal to the Commitment hereunder (but such termination and expiration will occur only after such funding), (iv) the consummation of the Exchange by Investor for the maximum amount of the Rollover Amount set forth in the Support Agreement, (v) the occurrence of any event that terminates Vista’s obligations under the Equity Commitment Letter delivered by Vista under Section 3 thereof, (vi) the valid termination of the Support Agreement by Investor pursuant to Section 3 thereof, or (vii) the date on which any Legal Proceeding is brought by Parent or the Company in connection with this letter, the Support Agreement, the Merger Agreement or any transaction contemplated hereby or thereby or otherwise relating thereto, against Investor or any Investor Affiliate, in each case other than any Retained Claims (such earliest date, the “Commitment Expiration Date”); provided, that Investor will not be liable for a breach of its obligations to fund the Commitment under paragraph 1 of this letter unless Parent is also liable for a breach of the Merger Agreement; provided, further, that to seek recovery from Investor for any such breach of this letter, a Legal Proceeding must be commenced against Investor with respect thereto in a court of competent jurisdiction no later than thirty (30) days following the termination of the Commitment hereunder. From and after the Commitment Expiration Date, neither Investor nor any Investor Affiliate shall have any further liability or obligation to any Person hereunder; provided, further, that any Legal Proceeding or claim commenced by the Company in a court of competent jurisdiction within thirty (30) days following the Commitment Expiration Date and arising out of a purported breach of this letter shall survive any termination of the Commitment until the final and non-appealable resolution of such Legal Proceeding or claim, otherwise no rights of the Company shall survive the Commitment Expiration Date.

4. This letter shall inure to the benefit of and be binding upon Parent and Investor. Investor acknowledges that (i) Parent shall be entitled to specifically enforce the obligations of Investor to satisfy the Equity Commitment when all of the conditions to funding the Commitment set forth in this letter have

 

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been satisfied, and (ii) the Company is an express third party beneficiary hereof (including, without limitation, with respect to Investor’s representations, warranties, covenants, and agreements contained in this letter), entitled to specifically enforce the obligations of Investor against Investor to the full extent hereof in connection with the Company’s exercise of its rights under and in accordance with Section 9.10(b) of the Merger Agreement and, in connection therewith, the Company has the right to obtain an injunction, or other appropriate form of specific performance or equitable relief, to cause Parent to cause, or to directly cause, Investor to satisfy the Commitment as, and only to the extent permitted by, this letter, in each case when all of the conditions to funding the Commitment set forth in this letter have been satisfied and in connection with the exercise of its rights under and in accordance with Section 9.10(b) of the Merger Agreement, and the Company shall have no other rights or remedies hereunder; provided, however, that notwithstanding anything herein or in the Merger Agreement to the contrary, Parent’s and the Company’s right to specific performance hereunder shall be limited to causing Investor to contribute a number of Rollover Shares in the Exchange having a value equal to the maximum Rollover Amount contemplated by the Support Agreement (reduced dollar for dollar by any portion of the Equity Commitment funded in cash at Investor’s election), pursuant to the terms and conditions set forth in the Support Agreement. Investor accordingly agrees, subject in all respects to Section 9.10(b) of the Merger Agreement, not to oppose the granting of an injunction, specific performance or other equitable relief on the basis that the Company has an adequate remedy at law or an award of specific performance is not an appropriate remedy for any reason at law or equity. Investor further agrees that the Company shall not be required to post a bond or undertaking in connection with such order or injunction sought in connection with the Company’s exercise of its rights under and in accordance with the terms of Section 9.10(b) of the Merger Agreement or under and in accordance with this letter. Investor acknowledges and agrees that (a) Parent is delivering a copy of this letter to the Company and that the Company is relying on the obligations and commitments of Investor hereunder in connection with the Company’s decision to enter into and consummate the transactions contemplated by the Merger Agreement, (b) the availability of monetary damages from the Buyer Parties in the Merger Agreement and the Guarantors in the provisions set forth in the Guarantees (i) are not intended to and do not adequately compensate for the harm that would result from a breach of the Merger Agreement or a breach of Investor’s obligations to satisfy the Commitment in accordance with the terms of this letter and (ii) shall not be construed to diminish or otherwise impair in any respect the Company’s right to specific enforcement to cause Parent to cause, or to directly cause, Investor to satisfy, directly or indirectly, the Commitment under this letter, and to cause the Buyer Parties to consummate the transactions contemplated by the Merger Agreement under Section 9.10(b) of the Merger Agreement, and (c) the right of specific performance under this letter and Section 9.10(b) of the Merger Agreement are an integral part of the transactions contemplated by the Merger Agreement and without those rights, the Company would not have entered into the Merger Agreement. For the avoidance of doubt, the remedies available to the Company under Section 9.10(b) of the Merger Agreement and under this letter shall be in addition to any other remedy to which the Company is entitled, and the election to pursue any injunction or specific performance under Section 9.10(b) of the Merger Agreement and/or this letter shall not restrict, impair or otherwise limit the Company from receiving monetary damages from the Buyer Parties pursuant to Section 9.10(b) of the Merger Agreement in lieu of specific performance; provided, that, without limiting the ability of the Company to seek both remedies, under no circumstances shall the Company be permitted or entitled to receive both a grant of specific performance under Section 9.10(b) of the Merger Agreement that results in the occurrence of the Closing and payment of monetary damages pursuant to the Merger Agreement. Except for the rights of the Company set forth in this paragraph 4, nothing in this letter, express or implied, is intended to confer upon any Person other than Parent, Investor and the Company any rights or remedies under, or by reason of, or any rights to enforce or cause Parent to enforce, the Commitment or any provisions of this letter or to confer upon any Person any rights or remedies against any Person other than Investor under or by reason of this letter. Without limiting the foregoing, no Person (other than Parent or the Company only on the terms, and subject to the limitations, set forth in this paragraph 4 and Section 9.10(b) of the Merger Agreement, as applicable) shall have any right to specifically enforce this letter or to cause Parent to specifically enforce this letter.

 

Page 3


5. None of Investor, Parent or the Company may assign their respective rights, interests or obligations hereunder to any other person without the prior written consent of the Company (in the case of an assignment by Investor or Parent) or Investor (in the case of an assignment by the Company), and any attempted assignment without such required consent shall be null and void and of no force or effect; provided, however, that Investor reserves the right, prior to or after execution of definitive documentation for the financing transactions contemplated hereby, to assign any portion of the Commitment to one or more of its Affiliates, financing sources or other investors, and only upon the actual funding of such assigned portion of the Commitment to Parent in accordance with this letter effective upon the Closing, Investor shall have no further obligation to Parent (or any other person) with respect to such funded assigned portion. Notwithstanding the foregoing, Investor acknowledges and agrees that, except to the extent otherwise agreed in writing by the Company, any such assignment shall not relieve Investor of its obligation to satisfy the full amount of the Commitment. Subject to the foregoing, all of the terms and provisions of this letter shall inure to the benefit of and be binding upon the parties hereto and the Company and their respective successors and permitted assigns.

6. Notwithstanding anything that may be expressed or implied in this letter or any document or instrument delivered in connection herewith, and notwithstanding the fact that Investor is a limited partnership, Parent covenants, agrees and acknowledges that no Person other than Investor shall have any obligation hereunder and that no recourse hereunder or under any documents or instruments delivered in connection herewith or therewith shall be had against, and no personal liability whatsoever shall attach to, be imposed on or otherwise be incurred by, any Investor Affiliate for any obligations of Investor under this letter or for any claim based on, in respect of or by reason of any such obligations or their creation, through any Buyer Party or otherwise, whether by or through attempted piercing of the corporate veil, by or through a claim by or on behalf of Parent against any Investor Affiliate, by the enforcement of any assessment or by any legal or equitable proceeding, by virtue of any statute, regulation or applicable law, or otherwise. Under no circumstances shall Investor be liable to the Company or any other Person for consequential, punitive, exemplary, multiple, special or similar damages, or for lost profits.

7. This letter, the Merger Agreement, the Support Agreement and the Stockholder Confidentiality Agreements (as defined below) reflect the entire understanding of the parties with respect to the subject matter hereof and thereof and shall not be contradicted or qualified by any other, and supersedes each other, agreement, oral or written, before the date hereof. This letter may not be waived, amended or modified except by an instrument in writing signed by each of the parties hereto and the Company. Any such waiver shall constitute a waiver only with respect to the specific matter described in such writing and shall in no way impair the rights of the party granting such waiver in any other respect or at any other time. The waiver by any of the parties hereto of a breach of or a default under any of the provisions of this letter, or a failure to or delay in exercising any right or privilege hereunder, shall not be construed as a waiver of any other breach or default of a similar nature, or as a waiver of any of such provisions, rights or privileges hereunder. No failure or delay by any party or the Company in exercising any right 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. Notwithstanding anything to the contrary set forth herein, neither this letter nor the Commitment shall be effective unless there has been prior or concurrent execution and delivery of the Merger Agreement by each of the parties thereto.

 

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8. Notwithstanding anything that may be expressed or implied in this letter or any document or instrument delivered contemporaneously herewith, and notwithstanding the fact that the Investor is a limited partnership, each of Parent and the Company, by its acceptance, directly or indirectly, of the benefits of this letter, covenants, agrees and acknowledges that no Person other than the Investor shall have any obligation hereunder and that it has no rights of recovery against, and no recourse hereunder or under any documents or instruments delivered in connection herewith or in respect of any oral representations made or alleged to be made in connection herewith or therewith, shall be had against, any former, current or future director, officer, agent, affiliate, manager, assignee or employee of the Investor (or any of their successors or permitted assignees), against any former, current or future general or limited partner, manager, stockholder or member of the Investor (or any of their successors or permitted assignees) or any affiliate thereof or against any former, current or future director, officer, agent, employee, affiliate, assignee, general or limited partner, stockholder, manager or member of any of the foregoing (in all cases in their capacity as such) (each, an “Affiliate”, and each such Affiliate of the Investor other than the Investor, an “Investor Affiliate”), whether by or through attempted piercing of the corporate veil, by or through a claim (whether in tort, contract or otherwise), by or on behalf of Parent or the Company against the Investor Affiliates, by the enforcement of any assessment or by any legal or equitable proceeding, or by virtue of any statute, regulation or other applicable Law, or otherwise; provided, that (and notwithstanding anything to the contrary provided herein or in any document or instrument delivered contemporaneously herewith), nothing in this letter shall limit (i) Parent’s and the Company’s right to seek specific performance against Investor as provided in Section 4 of this letter, (ii) claims by Parent or the Company against the Investor pursuant to the Support Agreement, (iii) claims by Vista Equity Partners Management, LLC (“Vista”) against Kohlberg Kravis Roberts & Co. L.P. (“KKR”) pursuant to the non-disclosure agreement (the “Vista Confidentiality Agreement”) entered into between Vista and KKR, dated September 29, 2022, and (iv) claims by the Company against KKR pursuant to the non-disclosure agreement (the “Company Confidentiality Agreement” and, together with the Vista Confidentiality Agreements, the “Stockholder Confidentiality Agreements”) entered into between the Company and KKR, dated September 29, 2022 (claims covered by clauses (i), (ii), (iii) or (iv), the “Retained Claims”). The parties hereto expressly agree and acknowledge that no personal liability whatsoever shall attach to, be imposed on, or otherwise be incurred by any Investor Affiliate, as such, for any obligations of the Investor under this letter or the transactions contemplated hereby, under any documents or instruments delivered in connection herewith, in respect of any oral representations made or alleged to be made in connection herewith or therewith, or for any claim (whether in tort, contract or otherwise) based on, in respect of, or by reason of, such obligations or their creation.

9. Parent further agrees that neither it nor any of its Affiliates shall have any right of recovery against the Investor or any of the Investor Affiliates, whether by piercing of the corporate veil, by a claim on behalf of Parent against the Investor or any of the Investor Affiliates, or otherwise, with respect to any claims, liabilities or obligations arising under, or in connection with, this letter, the Merger Agreement, any other Transaction Documents or the transactions contemplated hereby or thereby, or in respect of any oral representations made or alleged to be made in connection therewith, except, in all cases, for the Retained Claims solely as provided in the applicable agreements with respect thereto. Parent hereby covenants and agrees that it shall not institute, and shall cause its Affiliates not to institute, any Legal Proceeding or bring any other claim in a Legal Proceeding (whether in tort, contract or otherwise) arising under, or in connection with, the Merger Agreement or the transactions contemplated thereby, or in respect of any oral representations made or alleged to be made in connection therewith, against the Investor or any Investor Affiliate except, in all cases, for the Retained Claims.

10. This letter shall be treated as confidential and is being provided to Parent and the Company solely in connection with their execution of the Merger Agreement. This letter may not be used, circulated, quoted or otherwise referred to in any document, except with the prior written consent of the undersigned

 

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or as required by applicable Law. Without limiting the foregoing, the Company and each party hereto may disclose this letter (i) to the extent required by the applicable rules of any national securities exchange or required (or requested by the SEC) in connection with any SEC filings relating to the Merger, (ii) by interrogatory, subpoena, civil investigative demand or similar process or (iii) in connection with enforcing this letter or the Merger Agreement.

11. Section 9.11 (Governing Law) and, subject to paragraph 12 below, Section 9.12(a) (General Jurisdiction) of the Merger Agreement are incorporated by reference herein mutatis mutandis.

12. Section 9.13 (Waiver of Jury Trial) of the Merger Agreement is incorporated by reference herein mutatis mutandis.

All communications to Parent in relation to this letter should be addressed to:

 

 

c/o Vista Equity Partners management, LLC

Four Embarcadero Center, 20th Floor

San Francisco, California 94111

Attn:

   Rod Aliabadi
   Nick Prickel
   Christina Lema

Email:

  

[***]

with a copy (which shall not constitute notice) to:

Kirkland & Ellis LLP

601 Lexington Avenue

New York, New York 10022

Attention:

   Daniel Wolf, P.C.
   David M. Klein, P.C.
   Chelsea Darnell

Email:

  

[***]

and

Kirkland & Ellis LLP

555 California Street

San Francisco, CA 94104

Attention:

   Stuart E. Casillas, P.C.
   Ari Levi

Email:

  

[***]

 

Page 6


All communications to the Investor in relation to this letter should be addressed to:

KKR Knowledge Investors L.P.

c/o Kohlberg Kravis Roberts & Co. L.P.

30 Hudson Yards

New York, NY 10001

Attention: Stephen Shanley

Email: [***]

with a copy (which shall not constitute notice) to:

Gibson, Dunn & Crutcher LLP

200 Park Avenue

New York, NY 10166

Attn: Saee Muzumdar

Email: [***]

13. Each party to this letter hereby represents and warrants with respect to itself to the other party that: (a) it is duly organized and validly existing under the laws of its jurisdiction of organization, (b) it has all corporate, limited liability company, limited partnership or similar partnership power and authority to execute, deliver and perform this letter, (c) the execution, delivery and performance of this letter by it has been duly and validly authorized and approved by all necessary corporate, limited liability company, limited partnership or similar action, and no other proceedings or actions on its part are necessary therefor, (d) this letter has been duly and validly executed and delivered by it and constitutes a valid and legally binding obligation of it, enforceable against it in accordance with its terms, subject to laws of general application relating to bankruptcy, insolvency and the relief of debtors, (e) the execution, delivery and performance by it of this letter do not and will not (i) violate its organizational documents, (ii) violate any applicable Law, or (iii) result in any violation of, or default (with or without notice or lapse of time, or both) under, or give rise to a right of termination, cancelation or acceleration of any obligation, any contract to which it is a party, in any case, for which the violation, default or right would be reasonably likely to prevent or materially impede, interfere with, hinder or delay the consummation by it of the transactions contemplated by this letter on a timely basis, and (f) all approvals of, filings with and notifications to, any Governmental Authority or any other Person necessary for the due execution, delivery and performance of this letter by it have been obtained or made and all conditions thereof have been duly complied with, and no other action by, and no notice to or filing with, any Governmental Authority or other Person is required in connection with the execution, delivery or performance by it of this letter. In addition, Investor represents and warrants to Parent that access to funds necessary to fulfill the Commitment under this letter shall be available to Investor for as long as this letter and the Commitment hereunder shall remain in effect, and that Investor is fully familiar with the Merger Agreement, the Support Agreement and the respective other documents and instruments delivered in connection therewith. Investor covenants and agrees that (A) it will not take any action or omit to take any action that would or would reasonably be expected to cause or result in any of the foregoing representations and warranties to become untrue, and (B) in the event that Investor is required to make payments pursuant to the terms of this letter, it will call capital from the partners of Investor or its Affiliates or otherwise obtain funds in such amounts and at such times as necessary to fulfill its obligations under the terms of this letter, or otherwise satisfy its obligations in this letter by consummating the Exchange in accordance with the Support Agreement. All representations, warranties, covenants and agreements of Investor contained herein shall survive the execution and delivery of this letter and shall be deemed made continuously, and shall continue in full force and effect, until the Commitment Expiration Date.

14. Each party acknowledges and agrees that (a) this letter is not intended to, and does not, create any agency, partnership, fiduciary or joint venture relationship between or among any of the parties hereto and neither this letter nor any other document or agreement entered into by any party hereto relating to the subject matter hereof shall be construed to suggest otherwise and (b) the obligations of Investor under this letter are solely contractual in nature.

 

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15. If any term or other provision of this letter is invalid, illegal or incapable of being enforced by any rule of law or public policy, all other conditions and provisions of this letter shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any party hereto; provided, however, that this letter may not be enforced without giving effect to the provisions of paragraphs 6, 7, 8 and 9 of this letter. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the parties shall negotiate in good faith to modify this 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 extent possible. Each party agrees that it will use its reasonable best efforts to cooperate with the other parties to this letter in seeking and agreeing to an expedited schedule in any litigation seeking an injunction or order of specific performance.

16. This letter may be signed in two or more counterparts, any one of which need not contain the signature of more than one party, but all such counterparts taken together shall constitute one and the same agreement (including by electronic transmission, by facsimile or email in .pdf format).

[Signature page follows.]

 

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Very truly yours,
KKR KNOWLEDGE INVESTORS L.P.
By:   KKR KNOWLEDGE INVESTORS GP
    LLC, its General Partner

 

By:   /s/ Stephen Shanley
Name:   Stephen Shanley
Title:   Vice President


Accepted and agreed to as of

the date first above written:

 

ORANJE HOLDCO, LLC

By:

 

/s/ Nicholas Prickel

Name:

 

Nicholas Prickel

Title:   Vice President
Exhibit (d)(x)

Exhibit (d)(x)

LIMITED GUARANTEE

THIS LIMITED GUARANTEE, dated as of October 11, 2022 (this “Limited Guarantee”), is made by Vista Equity Partners Fund VII, L.P., a Delaware limited partnership (the “Guarantor”), in favor of KnowBe4, Inc., a Delaware corporation (the “Company”). Reference is hereby made to that certain Agreement and Plan of Merger, dated on or about the date hereof (as the same may be amended, modified or restated in accordance with the terms thereof, the “Merger Agreement”), by and among the Company, Oranje Holdco, LLC, a Delaware limited liability company (“Parent”) and Oranje Merger Sub, Inc., a Delaware corporation and a wholly owned subsidiary of Parent (“Merger Sub”). Capitalized terms used, but not defined, herein shall have the meanings ascribed to them in the Merger Agreement.

1. Limited Guarantee. To induce the Company to enter into the Merger Agreement, the Guarantor hereby expressly, absolutely, irrevocably and unconditionally guarantees to the Company the due and punctual payment by Parent to the Company of (i) 21.49% (the “Guarantors Pro Rata Share”) of the Parent Termination Fee on the terms and subject to the conditions set forth in Section 8.3(c) of the Merger Agreement, (ii) the Guarantor’s Pro Rata Share of any costs of recovery and interest payable by Parent in the event the Parent Termination Fee is not paid when due on the terms and subject to the conditions set forth in Section 8.3(c) of the Merger Agreement, (iii) the Guarantor’s Pro Rata Share of any reimbursement or indemnification obligations pursuant to Sections 6.6(g) and 6.6(h) of the Merger Agreement when required to be paid by Parent or Merger Sub pursuant to and in accordance with the Merger Agreement and (iv) the Guarantor’s Pro Rata Share of the amounts payable by Parent or Merger Sub as monetary damages pursuant to Section 8.2(b) or Section 8.3(f)(i) of the Merger Agreement, subject to all of the limitations set forth the Merger Agreement (clauses (i), (ii), (iii) and (iv), the “Guaranteed Obligations”); provided, that, notwithstanding anything to the contrary set forth in this Limited Guarantee, the Other Limited Guarantees (as defined below), the Merger Agreement, the Equity Commitment Letter (as defined below), the Other Equity Commitment Letters (as defined below), the Support Agreements or any other agreement contemplated hereby or by any of such agreements (collectively, the “Transaction Agreements”), the Company and the Guarantor agree that in no event shall the aggregate liability of the Guarantor hereunder exceed $60,386,900 (the “Guarantor Liability Limitation”), and that the Guarantor shall in no event be required to pay, in the aggregate, more than the Guarantor Liability Limitation under or in respect of this Limited Guarantee, or otherwise have any other liability under this Limited Guarantee relating to, arising out of or in connection with the Merger Agreement and the transactions contemplated thereby or any other circumstance, except as set forth herein and in the Equity Commitment Letter. If Parent fails to discharge any portion of the Guaranteed Obligations when due, the Guarantor shall, upon the valid written request of the Company, promptly and in any event within ten (10) Business Days of the issuance of such valid written request by the Company, pay such Guaranteed Obligations in full. The Guarantor acknowledges and agrees that (a) Parent is delivering a copy of the Equity Commitment Letter to the Company and that the Company is relying on the obligations and commitments of the Guarantor under the Equity Commitment Letter in connection with the Company’s decision to enter into and consummate the transactions contemplated by the Merger Agreement, (b) the provisions of this Limited Guarantee (i) are not intended to and do not adequately compensate for the harm that would result from a breach of the Merger Agreement or a breach of Guarantor’s obligations to fund the Commitment (as defined in the Equity Commitment Letter) in accordance with the terms of the Equity Commitment Letter, (ii) shall not be construed to diminish or otherwise impair in any respect the Company’s right to specific enforcement to cause Parent or Merger Sub to cause, or to directly cause, Guarantor to fund, directly or indirectly, the Commitment under the Equity Commitment Letter, and to cause Parent or Merger Sub to consummate the transactions contemplated by the Merger Agreement under Section 9.10(b) of the Merger Agreement or (iii) shall not limit the Company’s rights to recover monetary damages under the Merger Agreement pursuant to Section 8.2(b) or Section 8.3(f)(i) of the Merger Agreement, for the Enforcement Expenses, for the Reimbursement Obligations or for monetary damages under the Confidentiality Agreement, subject in each case to all of the limitations set forth in the Merger Agreement or the Confidentiality Agreement, as


applicable, and (c) the right of specific performance under the Equity Commitment Letter and Section 9.10(b) of the Merger Agreement are each an integral part of the transactions contemplated by the Merger Agreement and without those rights, the Company would not have entered into the Merger Agreement. For the avoidance of doubt, the remedies available to the Company under Section 9.10(b) of the Merger Agreement and the Equity Commitment Letter shall be in addition to any other remedy to which the Company is entitled, and the election to pursue any injunction or specific performance under Section 9.10(b) of the Merger Agreement and/or the Equity Commitment Letter shall not restrict, impair or otherwise limit the Company from, in the alternative, terminating the Merger Agreement and collecting the Guaranteed Obligations (including under Sections 6.6(g) and 6.6(h) of the Merger Agreement and this Limited Guarantee); provided, that, without limiting the ability of the Company to seek both remedies, under no circumstances shall the Company be permitted or entitled to receive both a grant of specific performance under Section 9.10(b) of the Merger Agreement that results in the occurrence of the Closing, on the one hand, and the payment of the Guaranteed Obligations, on the other hand. All payments hereunder shall be made in cash by wire transfer of immediately available funds.

2. Terms of Limited Guarantee.

(a) This Limited Guarantee is one of payment, not collection, and a separate Legal Proceeding or Legal Proceedings may be brought and prosecuted against the Guarantor to enforce this Limited Guarantee up to the Guarantor Liability Limitation, irrespective of whether any Legal Proceeding is brought against Parent or Merger Sub or any other Person, or whether Parent or Merger Sub or any other Person are joined in any such Legal Proceeding or Legal Proceedings; provided, that no recovery may be obtained against the Guarantor under this Limited Guarantee unless a Legal Proceeding or Legal Proceedings, as applicable, have also been brought against the other guarantors (the “Other Guarantors”) under the other limited guarantees (the “Other Limited Guarantees”), dated as of the date hereof, by and between the Company and the Other Guarantors (except to the extent that the bringing of such Legal Proceeding against such Other Guarantors is prohibited or stayed by any applicable Law or such Legal Proceeding is not necessary in order to enforce the obligations of any of the Other Guarantors under the Other Limited Guarantees) and each such Legal Proceeding seeks recourse against the Guarantor and the Other Guarantors in respect of the applicable Guarantor’s Pro Rata Share. The Company shall not release any of the Other Guarantors from any obligations under their respective Other Limited Guarantee or amend or waive any provision of any of the Other Limited Guarantees, except to the extent the Company offers to release the Guarantor under this Limited Guarantee in the same (other than in de minimis respects) proportion or to amend or waive the provisions of this Limited Guarantee in the same (other than in de minimis respects) manner. Notwithstanding anything to the contrary contained in this Limited Guarantee or the Transaction Agreements, the obligations of the Guarantor under this Limited Guarantee and of the Other Guarantors under the Other Limited Guarantees shall be several and not joint. The Guarantor shall not have any liability or obligation whatsoever for or in respect of the Other Limited Guarantees or the Other Guarantors’ obligation to pay their Guaranteed Obligations under the Other Limited Guarantees, and the Other Guarantors shall not have any liability or obligation hereunder for or in respect of this Limited Guarantee or the Guarantor’s obligation to pay the Guarantor’s Guaranteed Obligations.

(b) Except as otherwise provided herein and without amending or limiting the other provisions of this Limited Guarantee (including Section 6 hereof), the liability of the Guarantor under this Limited Guarantee shall, to the fullest extent permitted under any applicable Law, be absolute and unconditional irrespective of, and the Guarantor hereby acknowledges and agrees that the obligations of the Guarantor hereunder shall not be released or discharged, in whole or in part, or otherwise affected by, and the Guarantor hereby waives any defense based upon or arising out of:

 

2


(i) the value, genuineness, regularity, illegality or enforceability of the Merger Agreement, the Equity Commitment Letter or any other agreement or instrument referred to herein or therein, including this Limited Guarantee (other than in the case of (A) fraud or willful misconduct by the Company, (B) defenses to the payment of the Guaranteed Obligations that are available to Parent or Merger Sub under the Merger Agreement, or (C) any attempt by the Company or any Person acting on its behalf to seek to impose liability upon the Guarantor in violation of the provisions set forth in Section 4 below);

(ii) any release or discharge of any obligation of Parent or Merger Sub contained in the Merger Agreement to the extent resulting from any change in the corporate existence, structure or ownership of Parent or Merger Sub, or any insolvency, bankruptcy, reorganization or other similar proceeding (or any consequences or effects thereof) affecting Parent or Merger Sub or any of their respective assets or any other Person now or hereafter liable with respect to the Guaranteed Obligations;

(iii) any duly executed and delivered waiver, amendment or modification of the Merger Agreement, the Transaction Agreements, the Debt Commitment Letter or, in each case, any other agreement evidencing, securing or otherwise entered into in connection therewith, or change in the manner, place or terms of payment or performance, or any change or extension of the time of payment or performance of, renewal or alteration of, any Guaranteed Obligation, any escrow arrangement or other security therefor, any liability incurred directly or indirectly in respect thereof, or any duly executed modification, amendment or waiver of or any consent to any departure from the terms of the Merger Agreement, the Transaction Agreements, the Debt Commitment Letter or, in each case, any other agreement evidencing, securing or otherwise entered into in connection therewith;

(iv) the existence of any claim, set-off or other right that the Guarantor may have at any time against Parent, Merger Sub or the Company, whether in connection with any Guaranteed Obligation or otherwise;

(v) the adequacy of any other means the Company may have of obtaining repayment of any of the Guaranteed Obligations;

(vi) the addition, substitution or release of any Person now or hereafter liable with respect to the Guaranteed Obligations or otherwise interested in the transactions contemplated by the Merger Agreement;

(vii) the failure of the Company to assert any claim or demand to enforce any right or remedy (or delay in asserting or enforcing the same) against Parent or Merger Sub or any other Person interested in the transactions contemplated by the Merger Agreement with respect to the Guaranteed Obligations, or to pursue any other remedy in the Company’s power whatsoever (and the Guarantor waives the right to have the proceeds of property of Parent or Merger Sub or any other person liable on the Guaranteed Obligations first applied to the discharge of the Guaranteed Obligations);

(viii) any lack of authority of any officer, director or any other person acting or purporting to act on behalf of Parent or Merger Sub, or any defect in the formation of Parent or Merger Sub;

 

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(ix) any change in the applicable Law of any jurisdiction;

(x) any present or future action of any Governmental Authority amending, varying, reducing, or otherwise affecting or purporting to amend, vary, reduce or otherwise affect, any of the Guaranteed Obligations or obligations of the Guarantor under this Limited Guarantee; or

(xi) any other act or omission that may or might in any manner or to any extent vary the risk of the Guarantor or otherwise operate as a discharge of the Guarantor as a matter of law or equity (other than payment of the Guaranteed Obligations, subject to the Guarantor Liability Limitation); provided, that, notwithstanding any other provision of this Limited Guarantee to the contrary, the Company hereby agrees that the Guarantor may assert, as a defense to, or release or discharge of, any payment or performance by the Guarantor under this Limited Guarantee, any claim, set-off, deduction, defense or release that Parent or Merger Sub could assert against the Company under the terms of, or with respect to, the Merger Agreement that would relieve Parent or Merger Sub, as applicable, of its obligations under the Merger Agreement (excluding, any insolvency, bankruptcy, reorganization or other similar proceeding (or any consequences or effects thereof) affecting Parent or Merger Sub or any other Person interested in the transactions contemplated by the Merger Agreement).

(c) The Guarantor hereby waives any and all notice of the creation, renewal, extension or accrual of any of the Guaranteed Obligations and notice of or proof of reliance by the Company upon this Limited Guarantee or acceptance of this Limited Guarantee. Without expanding the obligations of the Guarantor hereunder, the Guaranteed Obligations, and any of them, shall conclusively be deemed to have been created, contracted or incurred in reliance upon this Limited Guarantee, and all dealings between Parent, Merger Sub or the Guarantor, on the one hand, and the Company, on the other, shall likewise be conclusively presumed to have been had or consummated in reliance upon this Limited Guarantee. The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the transactions contemplated by the Transaction Agreements and that the waivers set forth in this Limited Guarantee are knowingly made in contemplation of such benefits. The Guarantor acknowledges and agrees that each of the waivers set forth herein is made with the Guarantor’s full knowledge of its significance and consequences and made after the opportunity to consult with counsel of its own choosing, and that under the circumstances, the waivers are reasonable and not contrary to public policy or law. If any of such waivers are determined to be contrary to any applicable Law or public policy by a final, non-appealable judgment of a court of competent jurisdiction, such waiver shall be effective only to the extent permitted by applicable Law. Except as expressly provided herein (including in Section 2(a)), when pursuing its rights and remedies hereunder against the Guarantor, the Company shall be under no obligation to pursue such rights and remedies it may have against Parent or Merger Sub or any other Person for the Guaranteed Obligations or any right of offset with respect thereto, and any failure by the Company to pursue such other rights or remedies or to collect any payments from Parent or Merger Sub or any such other Person or to realize upon or to exercise any such right of offset, and any release by the Company of Parent or Merger Sub or any such other Person or any right of offset, shall not relieve the Guarantor of any liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of the Company.

 

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(d) The Company shall not be obligated to file any claim relating to any Guaranteed Obligation in the event that Parent or Merger Sub becomes subject to a bankruptcy, reorganization or similar proceeding, and the failure of the Company to so file any claim shall not affect the Guarantor’s obligations hereunder. In the event that any payment to the Company in respect of any Guaranteed Obligation hereunder is rescinded or must otherwise be returned for any reason whatsoever, this Limited Guarantee shall continue to be effective or be reinstated, as the case may be, and the Guarantor shall remain liable hereunder with respect to the Guaranteed Obligation as if such payment had not been made so long as this Limited Guarantee has not been terminated. Notwithstanding any modification, discharge or extension of any part of the Guaranteed Obligations or any amendment, waiver, modification, stay or cure of the Company’s rights that may occur in any bankruptcy or reorganization Legal Proceeding concerning Parent or Merger Sub, whether permanent or temporary, and whether or not assented to by the Company, the Guarantor hereby agrees that it shall be obligated hereunder to pay and perform the Guaranteed Obligations and discharge its other obligations hereunder in accordance with the terms in effect on the date hereof. The Guarantor understands and acknowledges that by virtue of this Limited Guarantee, it has specifically assumed any and all risks of a bankruptcy or reorganization Legal Proceeding with respect to Parent or Merger Sub. Any circumstance that operates to toll any statute of limitations applicable to any of Parent, Merger Sub or the Company shall also operate to toll the statute of limitations applicable to the Guarantor.

(e) The Guarantor assumes the responsibility for being and keeping itself informed of the financial condition of Parent or Merger Sub and of all other circumstances bearing upon the risk of nonpayment by Parent or Merger Sub of the Guaranteed Obligations that diligent inquiry would reveal, represents that it has adequate means of obtaining such financial information from Parent or Merger Sub on a continuing basis, and agrees that the Company shall have no duty to advise the Guarantor of information known to it regarding such condition or such circumstances.

3. Waiver of Acceptance, Presentment, etc. The Guarantor hereby expressly waives any and all rights or defenses arising by virtue of any applicable Law which would otherwise require any election of remedies by the Company. The Guarantor waives promptness, diligence, notice of the acceptance of this Limited Guarantee and of any Guaranteed Obligations, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of the incurrence of any Guaranteed Obligations and all other notices of any kind (other than notices to be provided in accordance with Section 11 hereof or Section 9.2 of the Merger Agreement), all defenses which may be available by virtue of any valuation, stay, moratorium Law or other similar Law now or hereafter in effect, any right to require the marshaling of assets of Parent, Merger Sub or any Interested Person, and all suretyship defenses generally (other than breach by the Company of this Limited Guarantee).

4. Sole Remedy.

(a) The Company acknowledges and agrees that, as of the date hereof, neither Parent nor Merger Sub has any assets other than their respective rights under the Merger Agreement, the Equity Commitment Letter, the Other Equity Commitment Letters, and the agreements contemplated thereby. Except as specifically contemplated by this Limited Guarantee, the Other Limited Guarantees and the letter agreement, dated as of the date hereof, between the Guarantor and Parent pursuant to which the Guarantor has agreed, subject to the terms and upon conditions set forth therein, to make a certain equity contributions to Parent (the “Equity Commitment Letter”) or the other letter agreements, dated as of the date hereof, between each of Vista Equity Partners Fund VIII, L.P. and KKR Knowledge Investors L.P. (the “Other Commitment Parties”) and Parent pursuant to which such Other Commitment Parties have agreed, subject to the terms and conditions set forth therein, to make certain equity contributions to Parent (the “Other Equity Commitment Letters”), to the extent necessary to pay the filing fees and related expenses of Parent or Merger Sub prior to the Closing in connection with the filings contemplated by Section 6.2(a) of the Merger Agreement or as is required to comply with Parent’s or Merger Sub’s reimbursement and

 

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indemnification obligations pursuant to Sections 6.6(g) and 6.6(h) of the Merger Agreement prior to the Closing, the Company acknowledges and agrees that no funds are expected to be contributed to Parent or Merger Sub unless the Closing occurs, and that, except for rights against Parent and Merger Sub in paragraph 4 of the Equity Commitment Letter and the applicable provision in the Other Equity Commitment Letters and Section 9.10(b) of the Merger Agreement and subject to all of the terms, conditions and limitations herein and in the Merger Agreement, the Company shall not have any right to cause any assets to be contributed to Parent or Merger Sub by the Guarantor, any Guarantor Affiliate (as defined below) or any other Person, except as is required to comply with Parent’s or Merger Sub’s reimbursement and indemnification obligations pursuant to Sections 6.6(g) and 6.6(h) of the Merger Agreement prior to the Closing.

(b) The Guarantor shall not have any obligation or liability to any Person relating to, arising out of or in connection with this Limited Guarantee other than as expressly set forth herein. The Company further agrees that it has no remedy, recourse or right of recovery against, or right to contribution from, and no personal liability shall attach to, (i) any former, current or future, direct or indirect director, officer, employee, agent or Affiliate of the Guarantor, Parent or Merger Sub, (ii) any lender or prospective lender, lead arranger, arranger, agent or representative of or to Parent or Merger Sub, (iii) any former, current or future, direct or indirect holder of any securities or any equity interests of any kind of the Guarantor, Parent, Merger Sub or any other Person (whether such holder is a limited or general partner, member, stockholder or otherwise), or (iv) any former, current or future assignee of the Guarantor, Parent or Merger Sub or any former, current or future director, officer, employee, agent, general or limited partner, manager, member, stockholder, Affiliate, controlling person, representative or assignee of any of the foregoing (those Persons described in the foregoing clauses (i), (ii), (iii) and (iv), together, with any other Non-Recourse Parent Party (as defined in the Equity Commitment Letter and the Other Equity Commitment Letters), but excluding in all cases Parent, Merger Sub, and the Guarantor, being referred to herein collectively as “Guarantor Affiliates” or, with respect to the Other Guarantors, the “Other Guarantor Affiliates”), through Guarantor, Parent or Merger Sub or otherwise, whether by or through attempted piercing of the corporate veil or similar action, by the enforcement of any assessment or by any legal or equitable proceeding, by virtue of any applicable Law, by or through a claim by or on behalf of Guarantor, Parent or Merger Sub against the Guarantor, any Guarantor Affiliates, Parent or Merger Sub or otherwise in respect of any liabilities or obligations relating to, arising out of or in connection with, this Limited Guarantee, except, in each case, for (w) its rights against the Guarantor under this Limited Guarantee, (x) its third party beneficiary rights under the Equity Commitment Letter, (y) its rights against Parent or Merger Sub under, and in accordance with, the terms and conditions of the Merger Agreement and (z) its rights against Vista Equity Partners Management, LLC under, and in accordance with, the terms and conditions of the Confidentiality Agreement; provided, that in the event the Guarantor (A) consolidates with or merges with any other Person and is not the continuing or surviving entity of such consolidation or merger or (B) transfers or conveys all or a substantial portion of its properties and other assets to any Person such that the sum of the Guarantor’s remaining net assets plus uncalled capital is less than an amount equal to the Guarantor Liability Limitation (less amounts paid under this Limited Guarantee prior to such event), then, and in each such case, the Company shall be entitled to recourse, whether by the enforcement of any judgment or assessment or by any legal or equitable proceeding or by virtue of any applicable Law, against such continuing or surviving entity or such Person (in either case, a “Successor Entity”), as the case may be, but only to the extent of the unpaid liability of the Guarantor hereunder up to the amount of the Guaranteed Obligations for which the Guarantor is liable, as determined in accordance with this Limited Guarantee. Except for Guarantee Claims, Merger Agreement Claims and Equity Commitment Claims (each as defined below), recourse against the Guarantor under this Limited Guarantee shall be the sole and exclusive remedy of the Company and all of its Affiliates and Subsidiaries against the Guarantor, any Guarantor Affiliate, the Other Guarantors and any Other Guarantor Affiliate in respect of any liabilities or obligations arising under, or in connection with, the Transaction Agreements or the transactions contemplated thereby, and such recourse shall be subject to the limitations described herein and therein.

 

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(c) The Company hereby covenants and agrees that it shall not institute, and shall cause its controlled Affiliates not to institute, any Legal Proceeding in connection with the Transaction Agreements or the transactions contemplated hereby or thereby, against the Guarantor or any Guarantor Affiliate except for (i) claims by the Company against the Guarantor and any Successor Entity under and in accordance with this Limited Guarantee (“Guarantee Claims”), (ii) claims by the Company against Parent or Merger Sub under and in accordance with the Merger Agreement and/or Vista Equity Partners Management, LLC under and in accordance with the Confidentiality Agreement (“Merger Agreement Claims”) and (iii) claims by the Company against (A) the Guarantor or any Successor Entity under and in accordance with the Merger Agreement, the Equity Commitment Letter and the Other Equity Commitment Letters and (B) claims by the Company against the Guarantor, Parent or any respective Successor Entity, or any other party to, the Support Agreements (in all cases under and in accordance with the Support Agreements) (“Equity Commitment Claims”).

(d) For all purposes of this Limited Guarantee, a Person shall be deemed to have instituted a Legal Proceeding against another Person if such first Person brings a Legal Proceeding against such Person or adds such other Person to an existing Legal Proceeding, in each case other than Legal Proceedings as are expressly contemplated and permitted in the Merger Agreement and the other agreements contemplated hereby and thereby (including the Guarantee Claims, the Merger Agreement Claims and the Equity Commitment Claims).

5. Subrogation and other Claims. The Guarantor unconditionally and irrevocably agrees that it will not exercise against Parent or Merger Sub or any other Person interested in the transactions contemplated by the Merger Agreement (each such Person, an “Interested Person”) any rights that it may now have or hereafter acquire against Parent or Merger Sub or any other Interested Person that arise from the existence, payment, performance, or enforcement of the Guaranteed Obligations under or in respect to this Limited Guarantee, including, without limitation, rights of subrogation or contribution, whether arising in equity, by contract or operation of Law (including, without limitation, any such right arising under bankruptcy or insolvency Laws) or otherwise, including, without limitation, the right to take or receive from Parent, Merger Sub or such other Interested Person, directly or indirectly, in cash or other property or by set off or in any other manner, payment or security on account of such claim, remedy or right unless and until the Guaranteed Obligations have been indefeasibly paid in full in cash. If any amount shall be paid to the Guarantor in violation of the immediately preceding sentence at any time prior to the payment in full in cash of the Guaranteed Obligations and all other amounts payable under this Limited Guarantee (including reinstatement of any Guaranteed Obligations), such amount shall be received and held in trust for the benefit of the Company, shall be segregated from other property and funds of the Guarantor and shall forthwith be paid or delivered to the Company in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Guaranteed Obligations and all other amounts payable under this Limited Guarantee, whether matured or unmatured, or to be held as collateral for the Guaranteed Obligations or other amounts payable under this Limited Guarantee thereafter arising.

6. Termination. This Limited Guarantee shall terminate upon, and the Guarantor shall not have any further liability or obligation under this Limited Guarantee from and after, the earliest of: (a) immediately following the later of the Effective Time and the deposit of the Exchange Fund pursuant to Section 2.9(b) of the Merger Agreement, (b) the termination of the Merger Agreement by mutual written consent of the Company, Parent and Merger Sub pursuant to Section 8.1(a) thereof, (c) the termination of the Merger Agreement by the Company pursuant to Sections 8.1(b), 8.1(c), 8.1(d), 8.1(g), 8.1(h) or 8.1(i)

 

7


thereof, (d) the indefeasible payment by the Guarantor, Parent or Merger Sub of an amount of the Guaranteed Obligations equal to the Guarantor Liability Limitation, (e) the date that is ninety (90) days following the valid termination of the Merger Agreement in accordance with its terms (other than terminations for which clauses (b) or (c) of this Section 6 applies), unless prior to the expiration of such ninety (90) day period (i) the Company has delivered a written notice with respect to any of the Guaranteed Obligations asserting that the Guarantor, Parent or Merger Sub is liable, in whole or in part, for any portion of the Guaranteed Obligations, and (ii) the Company has commenced a Legal Proceeding against Guarantor, Parent or Merger Sub alleging that Parent or Merger Sub is liable for any other payment obligations under the Merger Agreement (including Sections 6.5 and 6.6 thereof) or against the Guarantor that amounts are due and owing from the Guarantor pursuant to Section 1, in which case this Limited Guarantee shall survive solely with respect to amounts so alleged to be owing; provided that, with respect to the foregoing clause (e), if the Merger Agreement has been validly terminated, such notice has been provided and such Legal Proceeding has been commenced, the Guarantor shall have no further liability or obligation under this Limited Guarantee from and after the earliest of (I) a final, non-appealable order of a court of competent jurisdiction in accordance with Section 10 hereof determining that the Guarantor does not owe any amount under this Limited Guarantee and (II) a written agreement between the Guarantor and the Company that specifically references this Section 6(e) in which the Company acknowledges that the obligations and liabilities of the Guarantor pursuant to this Limited Guarantee are terminated, and (f) the Company or any of its controlled Affiliates acting on its behalf seeks to impose liability upon (A) the Guarantor in excess of the Guarantor Liability Limitation or (B) any Other Guarantors in excess of its respective Guarantor Liability Limitation or otherwise challenges any limit on the liability of the Guarantor hereunder or under the Equity Commitment Letter, or makes any claim arising under, or in connection with, the Transaction Agreements, other than a Guarantee Claim, a Merger Agreement Claim or an Equity Commitment Claim (in the event of any of the actions described in this clause (f), the obligations and liabilities of the Guarantor under this Limited Guarantee shall terminate ab initio and be null and void).

7. Continuing Guarantee. Unless terminated pursuant to the provisions of Section 6, this Limited Guarantee is a continuing one and may not be revoked or terminated and shall remain in full force and effect until the indefeasible payment and satisfaction in full of the Guaranteed Obligations, shall be binding upon the Guarantor, its successors and permitted assigns, and any Successor Entity, and shall inure to the benefit of, and be enforceable by, the Company and its permitted successors, transferees and assigns. All obligations to which this Limited Guarantee applies or may apply under the terms hereof shall be conclusively presumed to have been created in reliance hereon.

8. Amendment; Waivers, etc. No amendment, modification or discharge of this Limited Guarantee, and no waiver hereunder, shall be valid or binding unless set forth in writing and duly executed by each of Parent, Merger Sub, the Company. Any such waiver shall constitute a waiver only with respect to the specific matter described in such writing and shall in no way impair the rights of the party granting such waiver in any other respect or at any other time. The waiver by any of the parties hereto of a breach of or a default under any of the provisions of this Limited Guarantee or a failure to or delay in exercising any right or privilege hereunder, shall not be construed as a waiver of any other breach or default of a similar nature, or as a waiver of any of such provisions, rights or privileges hereunder. The rights and remedies herein provided are cumulative and none is exclusive of any other, or of any rights or remedies that any party may otherwise have at Law or in equity.

9. No Third Party Beneficiaries. Except for the provisions of this Limited Guarantee which reference Guarantor Affiliates (each of which shall be for the benefit of and enforceable by each Guarantor Affiliate), the parties hereby agree that their respective representations, warranties and covenants set forth herein are solely for the benefit of the other parties hereto, in accordance with and subject to the terms of this Limited Guarantee, and this Limited Guarantee is not intended to, and does not, confer upon any person other than the parties hereto and any Guarantor Affiliate any rights or remedies hereunder, including the right to rely upon the representations and warranties set forth herein.

 

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10. Incorporation by Reference. The following provisions of the Merger Agreement are hereby incorporated by reference in this Limited Guarantee, mutatis mutandis: Section 9.9 (Severability), provided, that this Limited Guarantee may not be enforced without giving effect to the limitation of the amount payable hereunder to an amount equal to the Guarantor Liability Limitation provided in Section 1 hereof and to the provisions of Section 4 and Section 6; Section 9.7 (Entire Agreement); Section 9.5 (Assignment); Section 9.11 (Governing Law); Section 9.14 (Counterparts); Section 9.12 (Consent to Jurisdiction); and Section 9.13 (Waiver of Jury Trial).

11. Notices. All notices, requests, claims, demands, waivers and other communications required or permitted to be given under this Limited Guarantee shall be in writing and shall be deemed to have been duly delivered and received using one or a combination of the following methods (i) four (4) Business Days after being sent by registered or certified mail, return receipt requested, postage prepaid, (ii) one (1) Business Day after being sent for next Business Day delivery, fees prepaid, via a reputable nationwide overnight courier service, (iii) immediately upon delivery by hand, or (iv) on the date sent by email (except that notice given by email will not be effective unless either (A) a duplicate copy of such email notice is promptly given by one of the other methods described in this Section 11 or (B) the receiving party delivers a written confirmation of receipt of such notice either by email or any other method described in this Section 11 (excluding “out of office” or other automated replies)). In each case, the intended recipient is set forth below:

if to the Company,

 

KnowBe4, Inc.

33 North Garden Avenue, Suite 12000

Clearwater, FL 33755

Attn:

   General Counsel

Email:

   [***]

with a copy (which shall not constitute notice) to:

Wilson Sonsini Goodrich & Rosati

Professional Corporation

1301 Avenue of the Americas, 40th Floor

New York, NY 10019-6022

Attn:

   Megan J. Baier
   Catherine V. Riley Tzipori

Email:

   [***]
   [***]

and

Wilson Sonsini Goodrich & Rosati

Professional Corporation

One Market Plaza

Spear Tower, Suite 3300

San Francisco, CA 94105

Attn:

   Todd Cleary

Email:

   [***]

 

9


and

Wilson Sonsini Goodrich & Rosati

Professional Corporation

650 Page Mill Road

Palo Alto, CA 94304-1050

Attn:

   Douglas K. Schnell

Email:

   [***]

if to the Guarantor,

c/o Vista Equity Partners Management, LLC

Four Embarcadero Center, 20th Floor

San Francisco, CA 94111

Attn:

  

Rod Aliabadi

  

Nicholas Prickel

  

Christina Lema

Email:

  

[***]

  

[***]

  

[***]

with a copy (which shall not constitute notice) to:

Kirkland & Ellis LLP

601 Lexington Avenue

New York, NY 10022

Attn:

  

Daniel E. Wolf, P.C.

  

David M. Klein, P.C.

  

Chelsea Darnell

Email:

  

[***]

  

[***]

  

[***]

and

Kirkland & Ellis LLP

555 California Street

San Francisco, CA 94104

Attn:

  

Stuart E. Casillas, P.C.

  

Ari Levi

Email:

  

[***]

  

[***]

Any notice received at the addressee’s location, or by email at the addressee’s email address, on any Business Day after 5:00 p.m., addressee’s local time, or on any day that is not a Business Day will be deemed to have been received at 9:00 a.m., addressee’s local time, on the next Business Day. From time to time, any party hereto may provide notice to the other parties hereto of a change in its address or email address through a notice given in accordance with this Section 11, except that that notice of any change to

 

10


the address, email address or any of the other details specified in or pursuant to this Section 11 will not be deemed to have been received until, and will be deemed to have been received upon, the later of the date (A) specified in such notice; or (B) that is five Business Days after such notice would otherwise be deemed to have been received pursuant to this Section 11.

12. Representations and Warranties. The Guarantor hereby represents and warrants with respect to itself to the Company that: (a) it is duly organized and validly existing under the Laws of its jurisdiction of organization, (b) it has all necessary power and authority to execute, deliver and perform this Limited Guarantee, (c) the execution, delivery and performance of this Limited Guarantee by the Guarantor has been duly and validly authorized and approved by all necessary action, and no other proceedings or actions on the part of the Guarantor are necessary therefor, (d) this Limited Guarantee has been duly and validly executed and delivered by it and constitutes a valid and legally binding obligation of it, enforceable against the Guarantor in accordance with its terms, subject to Laws of general application relating to bankruptcy, insolvency and the relief of debtors, (e) the Guarantor has uncalled capital commitments equal to or in excess of the Guarantor Liability Limitation and its limited partners or other investors have the obligation to fund such capital, (f) the execution, delivery and performance by the Guarantor of this Limited Guarantee do not and will not (i) violate the organizational documents of the Guarantor, (ii) violate any applicable Law, or (iii) result in any violation of, or default (with or without notice or lapse of time, or both) under, or give rise to a right of termination, cancelation or acceleration of any obligation, any contract to which the Guarantor is a party, in any case, for which the violation, default or right would be reasonably likely to prevent or materially impede, interfere with, hinder or delay the consummation by the Guarantor of the transactions contemplated by this Limited Guarantee on a timely basis, (g) all approvals of, filings with and notifications to, any Governmental Authority or other Person necessary for the due execution, delivery and performance of this Limited Guarantee by it have been obtained or made and all conditions thereof have been duly complied with, and no other action by, and no notice to or filing with, any Governmental Authority or other Person is required in connection with the execution, delivery or performance by it of this Limited Guarantee, (h) it is fully familiar with the Merger Agreement and the other documents or instruments delivered in connection therewith and (i) it has the financial capacity to pay and perform all of its obligations under this Limited Guarantee, and all funds necessary to fulfill the Guaranteed Obligations under this Limited Guarantee shall be available to the Guarantor for as long as this Limited Guarantee shall remain in effect.

13. Covenants. So long as this Limited Guarantee is in effect, the Guarantor hereby covenants and agrees that: (a) it shall not institute, and shall cause each of its controlled Affiliates not to institute, directly or indirectly, any Legal Proceeding or bring any other claim asserting that this Limited Guarantee is illegal, invalid or unenforceable in accordance with its terms, but subject to the terms of this Limited Guarantee; (b) it will comply in all material respects with all applicable Laws and Orders of Governmental Authorities to which it may be subject if failure to so comply would impair its ability to perform its obligations under this Limited Guarantee; (c) it will not take any action or omit to take any action that would or would reasonably be expected to cause or result in any of its representations and warranties set forth in Section 12 hereof to become untrue; and (d) in the event that the Guarantor is required to make payments pursuant to the terms of this Limited Guarantee or the Equity Commitment Letter, it will call capital from the partners of Guarantor in such amounts and at such times as are necessary to fulfill its obligation under the terms of this Limited Guarantee. Each party agrees that it will use its reasonable best efforts to cooperate with the other parties in seeking and agreeing to an expedited schedule in any litigation seeking an injunction or order of specific performance.

14. Survival. All representations, warranties, covenants and agreements of the Guarantor contained herein shall survive the execution and delivery of this letter and shall be deemed made continuously, and shall continue in full force and effect, until the termination of this Limited Guarantee in accordance with Section 6 hereof.

 

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15. Relationship of the Parties; Several Liability. Each party acknowledges and agrees that (a) this Limited Guarantee is not intended to, and does not, create any agency, partnership, fiduciary or joint venture relationship between or among any of the parties hereto and neither this Limited Guarantee nor any other document or agreement entered into by any party hereto relating to the subject matter hereof shall be construed to suggest otherwise and (b) the obligations of the Guarantor under this Limited Guarantee are solely contractual in nature. In no event shall Parent, Merger Sub, Guarantor or the Other Guarantors be considered an “Affiliate”, “security holder” or “representative” of the Company for any purpose of this Limited Guarantee.

16. Confidentiality. This Limited Guarantee shall be treated as confidential and is being provided to the Company solely in connection with execution of the Merger Agreement. This Limited Guarantee may not be used, circulated, quoted or otherwise referred to in any document (except the Merger Agreement and other documents executed in connection therewith, including the Transaction Agreements), except with the prior written consent of the undersigned. Without limiting the foregoing, each party hereto may disclose this Limited Guarantee (i) to the extent reasonably required by the applicable rules of any national securities exchange or required (or requested by the SEC) in connection with any SEC filings related to the Merger (including any 8-K or proxy statement), (ii) by interrogatory, subpoena, civil investigative demand or similar process or (iii) in connection with enforcing this Limited Guarantee, Equity Commitment Letter or the Merger Agreement.

*    *    *    *    *

 

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IN WITNESS WHEREOF, the undersigned have executed and delivered this Limited Guarantee as of the date first written above.

 

VISTA EQUITY PARTNERS FUND VII, L.P.
By:   Vista Equity Partners Fund VII GP, L.P.
Its:   General Partner
By   VEPF VII GP, Ltd.
Its:   General Partner
By:   /s/ Robert F. Smith
Name:   Robert F. Smith
Title:   Director
KNOWBE4, INC.
By:   /s/ Sjoerd Sjouwerman
Name:   Sjoerd Sjouwerman
Title:   Chief Executive Officer
Exhibit (d)(xi)

Exhibit (d)(xi)

LIMITED GUARANTEE

THIS LIMITED GUARANTEE, dated as of October 11, 2022 (this “Limited Guarantee”), is made by Vista Equity Partners Fund VIII, L.P., a Delaware limited partnership (the “Guarantor”), in favor of KnowBe4, Inc., a Delaware corporation (the “Company”). Reference is hereby made to that certain Agreement and Plan of Merger, dated on or about the date hereof (as the same may be amended, modified or restated in accordance with the terms thereof, the “Merger Agreement”), by and among the Company, Oranje Holdco, LLC, a Delaware limited liability company (“Parent”) and Oranje Merger Sub, Inc., a Delaware corporation and a wholly owned subsidiary of Parent (“Merger Sub”). Capitalized terms used, but not defined, herein shall have the meanings ascribed to them in the Merger Agreement.

1. Limited Guarantee. To induce the Company to enter into the Merger Agreement, the Guarantor hereby expressly, absolutely, irrevocably and unconditionally guarantees to the Company the due and punctual payment by Parent to the Company of (i) 78.51% (the “Guarantors Pro Rata Share”) of the Parent Termination Fee on the terms and subject to the conditions set forth in Section 8.3(c) of the Merger Agreement, (ii) the Guarantor’s Pro Rata Share of any costs of recovery and interest payable by Parent in the event the Parent Termination Fee is not paid when due on the terms and subject to the conditions set forth in Section 8.3(c) of the Merger Agreement, (iii) the Guarantor’s Pro Rata Share of any reimbursement or indemnification obligations pursuant to Sections 6.6(g) and 6.6(h) of the Merger Agreement when required to be paid by Parent or Merger Sub pursuant to and in accordance with the Merger Agreement and (iv) the Guarantor’s Pro Rata Share of the amounts payable by Parent or Merger Sub as monetary damages pursuant to Section 8.2(b) or Section 8.3(f)(i) of the Merger Agreement, subject to all of the limitations set forth the Merger Agreement (clauses (i), (ii), (iii) and (iv), the “Guaranteed Obligations”); provided, that, notwithstanding anything to the contrary set forth in this Limited Guarantee, the Other Limited Guarantees (as defined below), the Merger Agreement, the Equity Commitment Letter (as defined below), the Other Equity Commitment Letters (as defined below), the Support Agreements or any other agreement contemplated hereby or by any of such agreements (collectively, the “Transaction Agreements”), the Company and the Guarantor agree that in no event shall the aggregate liability of the Guarantor hereunder exceed $220,613,100 (the “Guarantor Liability Limitation”), and that the Guarantor shall in no event be required to pay, in the aggregate, more than the Guarantor Liability Limitation under or in respect of this Limited Guarantee, or otherwise have any other liability under this Limited Guarantee relating to, arising out of or in connection with the Merger Agreement and the transactions contemplated thereby or any other circumstance, except as set forth herein and in the Equity Commitment Letter. If Parent fails to discharge any portion of the Guaranteed Obligations when due, the Guarantor shall, upon the valid written request of the Company, promptly and in any event within ten (10) Business Days of the issuance of such valid written request by the Company, pay such Guaranteed Obligations in full. The Guarantor acknowledges and agrees that (a) Parent is delivering a copy of the Equity Commitment Letter to the Company and that the Company is relying on the obligations and commitments of the Guarantor under the Equity Commitment Letter in connection with the Company’s decision to enter into and consummate the transactions contemplated by the Merger Agreement, (b) the provisions of this Limited Guarantee (i) are not intended to and do not adequately compensate for the harm that would result from a breach of the Merger Agreement or a breach of Guarantor’s obligations to fund the Commitment (as defined in the Equity Commitment Letter) in accordance with the terms of the Equity Commitment Letter, (ii) shall not be construed to diminish or otherwise impair in any respect the Company’s right to specific enforcement to cause Parent or Merger Sub to cause, or to directly cause, Guarantor to fund, directly or indirectly, the Commitment under the Equity Commitment Letter, and to cause Parent or Merger Sub to consummate the transactions contemplated by the Merger Agreement under Section 9.10(b) of the Merger Agreement or (iii) shall not limit the Company’s rights to recover monetary damages under the Merger Agreement pursuant to Section 8.2(b) or Section 8.3(f)(i) of the Merger Agreement, for the Enforcement Expenses, for the Reimbursement Obligations or for monetary damages under the Confidentiality Agreement, subject in each case to all of the limitations set forth in the Merger Agreement or the Confidentiality Agreement, as


applicable, and (c) the right of specific performance under the Equity Commitment Letter and Section 9.10(b) of the Merger Agreement are each an integral part of the transactions contemplated by the Merger Agreement and without those rights, the Company would not have entered into the Merger Agreement. For the avoidance of doubt, the remedies available to the Company under Section 9.10(b) of the Merger Agreement and the Equity Commitment Letter shall be in addition to any other remedy to which the Company is entitled, and the election to pursue any injunction or specific performance under Section 9.10(b) of the Merger Agreement and/or the Equity Commitment Letter shall not restrict, impair or otherwise limit the Company from, in the alternative, terminating the Merger Agreement and collecting the Guaranteed Obligations (including under Sections 6.6(g) and 6.6(h) of the Merger Agreement and this Limited Guarantee); provided, that, without limiting the ability of the Company to seek both remedies, under no circumstances shall the Company be permitted or entitled to receive both a grant of specific performance under Section 9.10(b) of the Merger Agreement that results in the occurrence of the Closing, on the one hand, and the payment of the Guaranteed Obligations, on the other hand. All payments hereunder shall be made in cash by wire transfer of immediately available funds.

2. Terms of Limited Guarantee.

(a) This Limited Guarantee is one of payment, not collection, and a separate Legal Proceeding or Legal Proceedings may be brought and prosecuted against the Guarantor to enforce this Limited Guarantee up to the Guarantor Liability Limitation, irrespective of whether any Legal Proceeding is brought against Parent or Merger Sub or any other Person, or whether Parent or Merger Sub or any other Person are joined in any such Legal Proceeding or Legal Proceedings; provided, that no recovery may be obtained against the Guarantor under this Limited Guarantee unless a Legal Proceeding or Legal Proceedings, as applicable, have also been brought against the other guarantors (the “Other Guarantors”) under the other limited guarantees (the “Other Limited Guarantees”), dated as of the date hereof, by and between the Company and the Other Guarantors (except to the extent that the bringing of such Legal Proceeding against such Other Guarantors is prohibited or stayed by any applicable Law or such Legal Proceeding is not necessary in order to enforce the obligations of any of the Other Guarantors under the Other Limited Guarantees) and each such Legal Proceeding seeks recourse against the Guarantor and the Other Guarantors in respect of the applicable Guarantor’s Pro Rata Share. The Company shall not release any of the Other Guarantors from any obligations under their respective Other Limited Guarantee or amend or waive any provision of any of the Other Limited Guarantees, except to the extent the Company offers to release the Guarantor under this Limited Guarantee in the same (other than in de minimis respects) proportion or to amend or waive the provisions of this Limited Guarantee in the same (other than in de minimis respects) manner. Notwithstanding anything to the contrary contained in this Limited Guarantee or the Transaction Agreements, the obligations of the Guarantor under this Limited Guarantee and of the Other Guarantors under the Other Limited Guarantees shall be several and not joint. The Guarantor shall not have any liability or obligation whatsoever for or in respect of the Other Limited Guarantees or the Other Guarantors’ obligation to pay their Guaranteed Obligations under the Other Limited Guarantees, and the Other Guarantors shall not have any liability or obligation hereunder for or in respect of this Limited Guarantee or the Guarantor’s obligation to pay the Guarantor’s Guaranteed Obligations.

(b) Except as otherwise provided herein and without amending or limiting the other provisions of this Limited Guarantee (including Section 6 hereof), the liability of the Guarantor under this Limited Guarantee shall, to the fullest extent permitted under any applicable Law, be absolute and unconditional irrespective of, and the Guarantor hereby acknowledges and agrees that the obligations of the Guarantor hereunder shall not be released or discharged, in whole or in part, or otherwise affected by, and the Guarantor hereby waives any defense based upon or arising out of:

 

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(i) the value, genuineness, regularity, illegality or enforceability of the Merger Agreement, the Equity Commitment Letter or any other agreement or instrument referred to herein or therein, including this Limited Guarantee (other than in the case of (A) fraud or willful misconduct by the Company, (B) defenses to the payment of the Guaranteed Obligations that are available to Parent or Merger Sub under the Merger Agreement, or (C) any attempt by the Company or any Person acting on its behalf to seek to impose liability upon the Guarantor in violation of the provisions set forth in Section 4 below);

(ii) any release or discharge of any obligation of Parent or Merger Sub contained in the Merger Agreement to the extent resulting from any change in the corporate existence, structure or ownership of Parent or Merger Sub, or any insolvency, bankruptcy, reorganization or other similar proceeding (or any consequences or effects thereof) affecting Parent or Merger Sub or any of their respective assets or any other Person now or hereafter liable with respect to the Guaranteed Obligations;

(iii) any duly executed and delivered waiver, amendment or modification of the Merger Agreement, the Transaction Agreements, the Debt Commitment Letter or, in each case, any other agreement evidencing, securing or otherwise entered into in connection therewith, or change in the manner, place or terms of payment or performance, or any change or extension of the time of payment or performance of, renewal or alteration of, any Guaranteed Obligation, any escrow arrangement or other security therefor, any liability incurred directly or indirectly in respect thereof, or any duly executed modification, amendment or waiver of or any consent to any departure from the terms of the Merger Agreement, the Transaction Agreements, the Debt Commitment Letter or, in each case, any other agreement evidencing, securing or otherwise entered into in connection therewith;

(iv) the existence of any claim, set-off or other right that the Guarantor may have at any time against Parent, Merger Sub or the Company, whether in connection with any Guaranteed Obligation or otherwise;

(v) the adequacy of any other means the Company may have of obtaining repayment of any of the Guaranteed Obligations;

(vi) the addition, substitution or release of any Person now or hereafter liable with respect to the Guaranteed Obligations or otherwise interested in the transactions contemplated by the Merger Agreement;

(vii) the failure of the Company to assert any claim or demand to enforce any right or remedy (or delay in asserting or enforcing the same) against Parent or Merger Sub or any other Person interested in the transactions contemplated by the Merger Agreement with respect to the Guaranteed Obligations, or to pursue any other remedy in the Company’s power whatsoever (and the Guarantor waives the right to have the proceeds of property of Parent or Merger Sub or any other person liable on the Guaranteed Obligations first applied to the discharge of the Guaranteed Obligations);

(viii) any lack of authority of any officer, director or any other person acting or purporting to act on behalf of Parent or Merger Sub, or any defect in the formation of Parent or Merger Sub;

 

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(ix) any change in the applicable Law of any jurisdiction;

(x) any present or future action of any Governmental Authority amending, varying, reducing, or otherwise affecting or purporting to amend, vary, reduce or otherwise affect, any of the Guaranteed Obligations or obligations of the Guarantor under this Limited Guarantee; or

(xi) any other act or omission that may or might in any manner or to any extent vary the risk of the Guarantor or otherwise operate as a discharge of the Guarantor as a matter of law or equity (other than payment of the Guaranteed Obligations, subject to the Guarantor Liability Limitation); provided, that, notwithstanding any other provision of this Limited Guarantee to the contrary, the Company hereby agrees that the Guarantor may assert, as a defense to, or release or discharge of, any payment or performance by the Guarantor under this Limited Guarantee, any claim, set-off, deduction, defense or release that Parent or Merger Sub could assert against the Company under the terms of, or with respect to, the Merger Agreement that would relieve Parent or Merger Sub, as applicable, of its obligations under the Merger Agreement (excluding, any insolvency, bankruptcy, reorganization or other similar proceeding (or any consequences or effects thereof) affecting Parent or Merger Sub or any other Person interested in the transactions contemplated by the Merger Agreement).

(c) The Guarantor hereby waives any and all notice of the creation, renewal, extension or accrual of any of the Guaranteed Obligations and notice of or proof of reliance by the Company upon this Limited Guarantee or acceptance of this Limited Guarantee. Without expanding the obligations of the Guarantor hereunder, the Guaranteed Obligations, and any of them, shall conclusively be deemed to have been created, contracted or incurred in reliance upon this Limited Guarantee, and all dealings between Parent, Merger Sub or the Guarantor, on the one hand, and the Company, on the other, shall likewise be conclusively presumed to have been had or consummated in reliance upon this Limited Guarantee. The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the transactions contemplated by the Transaction Agreements and that the waivers set forth in this Limited Guarantee are knowingly made in contemplation of such benefits. The Guarantor acknowledges and agrees that each of the waivers set forth herein is made with the Guarantor’s full knowledge of its significance and consequences and made after the opportunity to consult with counsel of its own choosing, and that under the circumstances, the waivers are reasonable and not contrary to public policy or law. If any of such waivers are determined to be contrary to any applicable Law or public policy by a final, non-appealable judgment of a court of competent jurisdiction, such waiver shall be effective only to the extent permitted by applicable Law. Except as expressly provided herein (including in Section 2(a)), when pursuing its rights and remedies hereunder against the Guarantor, the Company shall be under no obligation to pursue such rights and remedies it may have against Parent or Merger Sub or any other Person for the Guaranteed Obligations or any right of offset with respect thereto, and any failure by the Company to pursue such other rights or remedies or to collect any payments from Parent or Merger Sub or any such other Person or to realize upon or to exercise any such right of offset, and any release by the Company of Parent or Merger Sub or any such other Person or any right of offset, shall not relieve the Guarantor of any liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of the Company.

 

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(d) The Company shall not be obligated to file any claim relating to any Guaranteed Obligation in the event that Parent or Merger Sub becomes subject to a bankruptcy, reorganization or similar proceeding, and the failure of the Company to so file any claim shall not affect the Guarantor’s obligations hereunder. In the event that any payment to the Company in respect of any Guaranteed Obligation hereunder is rescinded or must otherwise be returned for any reason whatsoever, this Limited Guarantee shall continue to be effective or be reinstated, as the case may be, and the Guarantor shall remain liable hereunder with respect to the Guaranteed Obligation as if such payment had not been made so long as this Limited Guarantee has not been terminated. Notwithstanding any modification, discharge or extension of any part of the Guaranteed Obligations or any amendment, waiver, modification, stay or cure of the Company’s rights that may occur in any bankruptcy or reorganization Legal Proceeding concerning Parent or Merger Sub, whether permanent or temporary, and whether or not assented to by the Company, the Guarantor hereby agrees that it shall be obligated hereunder to pay and perform the Guaranteed Obligations and discharge its other obligations hereunder in accordance with the terms in effect on the date hereof. The Guarantor understands and acknowledges that by virtue of this Limited Guarantee, it has specifically assumed any and all risks of a bankruptcy or reorganization Legal Proceeding with respect to Parent or Merger Sub. Any circumstance that operates to toll any statute of limitations applicable to any of Parent, Merger Sub or the Company shall also operate to toll the statute of limitations applicable to the Guarantor.

(e) The Guarantor assumes the responsibility for being and keeping itself informed of the financial condition of Parent or Merger Sub and of all other circumstances bearing upon the risk of nonpayment by Parent or Merger Sub of the Guaranteed Obligations that diligent inquiry would reveal, represents that it has adequate means of obtaining such financial information from Parent or Merger Sub on a continuing basis, and agrees that the Company shall have no duty to advise the Guarantor of information known to it regarding such condition or such circumstances.

3. Waiver of Acceptance, Presentment, etc. The Guarantor hereby expressly waives any and all rights or defenses arising by virtue of any applicable Law which would otherwise require any election of remedies by the Company. The Guarantor waives promptness, diligence, notice of the acceptance of this Limited Guarantee and of any Guaranteed Obligations, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of the incurrence of any Guaranteed Obligations and all other notices of any kind (other than notices to be provided in accordance with Section 11 hereof or Section 9.2 of the Merger Agreement), all defenses which may be available by virtue of any valuation, stay, moratorium Law or other similar Law now or hereafter in effect, any right to require the marshaling of assets of Parent, Merger Sub or any Interested Person, and all suretyship defenses generally (other than breach by the Company of this Limited Guarantee).

4. Sole Remedy.

(a) The Company acknowledges and agrees that, as of the date hereof, neither Parent nor Merger Sub has any assets other than their respective rights under the Merger Agreement, the Equity Commitment Letter, the Other Equity Commitment Letters, and the agreements contemplated thereby. Except as specifically contemplated by this Limited Guarantee, the Other Limited Guarantees and the letter agreement, dated as of the date hereof, between the Guarantor and Parent pursuant to which the Guarantor has agreed, subject to the terms and upon conditions set forth therein, to make a certain equity contributions to Parent (the “Equity Commitment Letter”) or the other letter agreements, dated as of the date hereof, between each of Vista Equity Partners Fund VII and KKR Knowledge Investors L.P. (the “Other Commitment Parties”) and Parent pursuant to which such Other Commitment Parties have agreed, subject to the terms and conditions set forth therein, to make certain equity contributions to Parent (the “Other Equity Commitment Letters”), to the extent necessary to pay the filing fees and related expenses of Parent or Merger Sub prior to the Closing in connection with the filings contemplated by Section 6.2(a) of the Merger Agreement or as is required to comply with Parent’s or Merger Sub’s reimbursement and

 

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indemnification obligations pursuant to Sections 6.6(g) and 6.6(h) of the Merger Agreement prior to the Closing, the Company acknowledges and agrees that no funds are expected to be contributed to Parent or Merger Sub unless the Closing occurs, and that, except for rights against Parent and Merger Sub in paragraph 4 of the Equity Commitment Letter and the applicable provision in the Other Equity Commitment Letters and Section 9.10(b) of the Merger Agreement and subject to all of the terms, conditions and limitations herein and in the Merger Agreement, the Company shall not have any right to cause any assets to be contributed to Parent or Merger Sub by the Guarantor, any Guarantor Affiliate (as defined below) or any other Person, except as is required to comply with Parent’s or Merger Sub’s reimbursement and indemnification obligations pursuant to Sections 6.6(g) and 6.6(h) of the Merger Agreement prior to the Closing.

(b) The Guarantor shall not have any obligation or liability to any Person relating to, arising out of or in connection with this Limited Guarantee other than as expressly set forth herein. The Company further agrees that it has no remedy, recourse or right of recovery against, or right to contribution from, and no personal liability shall attach to, (i) any former, current or future, direct or indirect director, officer, employee, agent or Affiliate of the Guarantor, Parent or Merger Sub, (ii) any lender or prospective lender, lead arranger, arranger, agent or representative of or to Parent or Merger Sub, (iii) any former, current or future, direct or indirect holder of any securities or any equity interests of any kind of the Guarantor, Parent, Merger Sub or any other Person (whether such holder is a limited or general partner, member, stockholder or otherwise), or (iv) any former, current or future assignee of the Guarantor, Parent or Merger Sub or any former, current or future director, officer, employee, agent, general or limited partner, manager, member, stockholder, Affiliate, controlling person, representative or assignee of any of the foregoing (those Persons described in the foregoing clauses (i), (ii), (iii) and (iv), together, with any other Non-Recourse Parent Party (as defined in the Equity Commitment Letter and the Other Equity Commitment Letters), but excluding in all cases Parent, Merger Sub, and the Guarantor, being referred to herein collectively as “Guarantor Affiliates” or, with respect to the Other Guarantors, the “Other Guarantor Affiliates”), through Guarantor, Parent or Merger Sub or otherwise, whether by or through attempted piercing of the corporate veil or similar action, by the enforcement of any assessment or by any legal or equitable proceeding, by virtue of any applicable Law, by or through a claim by or on behalf of Guarantor, Parent or Merger Sub against the Guarantor, any Guarantor Affiliates, Parent or Merger Sub or otherwise in respect of any liabilities or obligations relating to, arising out of or in connection with, this Limited Guarantee, except, in each case, for (w) its rights against the Guarantor under this Limited Guarantee, (x) its third party beneficiary rights under the Equity Commitment Letter, (y) its rights against Parent or Merger Sub under, and in accordance with, the terms and conditions of the Merger Agreement and (z) its rights against Vista Equity Partners Management, LLC under, and in accordance with, the terms and conditions of the Confidentiality Agreement; provided, that in the event the Guarantor (A) consolidates with or merges with any other Person and is not the continuing or surviv