MRDB MariaDB PLC

 

Exhibit (d)(1)

 

April 24, 2024

 

Meridian BidCo LLC
c/o K1 Investment Management, LLC
875 Manhattan Beach Blvd.
Manhattan Beach, CA 90266

 

Re:

Equity Financing Commitment

 

Ladies and Gentlemen:

 

This letter agreement (this “Agreement”) sets forth the commitment of K5 Private Investors, L.P., a Delaware limited partnership (the “Investor”), to, subject to the terms and conditions hereof, purchase, or cause an assignee permitted by Section 4 of this Agreement to purchase, equity securities of Meridian BidCo LLC, a Delaware limited liability company (“BidCo”), in connection with the proposed acquisition by BidCo of the entire issued and to be issued share capital of MariaDB plc, an Irish public limited company, pursuant to a takeover offer substantially on the terms, and subject to the conditions, set forth in the draft Rule 2.7 Announcement (the “Announcement”) set forth on the Schedule hereto (save for any amendments approved by or on behalf of the Investor or any of its Affiliates). Capitalized terms used but not defined herein have the meanings ascribed to them in the Announcement, unless the context requires otherwise. The Investor acknowledges that BidCo may, with the consent of the Irish Takeover Panel, elect to implement the Offer instead by way of a scheme of arrangement under the Irish Companies Act 2014 and the provisions of this Agreement shall continue to apply in that event.

 

1.

Equity Financing Commitment.

 

(a)          Subject to the terms and conditions set forth herein, the Investor hereby irrevocably commits to purchase equity securities of BidCo for an aggregate amount not to exceed $53,795,920.12 (the “Commitment”), in order that BidCo shall be able to pay, in accordance with the terms of the Offer, the Cash Consideration to MariaDB Shareholders whose MariaDB Shares are tendered in the Offer (the “Required Amount”), in each case, solely for the purpose of consummating the Offer; provided, that the Investor shall not, under any circumstances, be obligated to purchase equity securities of BidCo or otherwise provide any funds to BidCo hereunder in an amount exceeding the Commitment.

 

(b)          Without limiting the foregoing and without limitation or modification of BidCo’s or the Investor’s obligations under this Section 1, the Investor may effect the purchase of the equity interests of BidCo directly or indirectly through one or more entities, parallel funds or alternative investment vehicles affiliated with or managed by the Investor.

 

(c)          Subject only to Section 2 and Section 3 below, the Investor will fund the Required Amount on or before the date on which BidCo must pay the Cash Consideration in connection with the Offer, in cash in immediately available funds, and without any rights of recovery, set-off, recission or counterclaim or similar rights. The proceeds of the Required Amount shall be provided to, and used by, BidCo solely for the purposes set forth in Section 1(a).

 

 

2.            Equity Financing Conditions. The Investor’s obligations under this Agreement with respect to Section 1 shall be subject only to:

 

(a)          the Offer becoming, or being declared, unconditional in all respects in accordance with the requirements of the Irish Takeover Rules; or

 

(b)          if the Offer is implemented by way of a Scheme, the Scheme having become effective in accordance with its terms.

 

3.            Termination. Notwithstanding any other provision of this Agreement, the obligation of the Investor to fund the Commitment shall automatically and immediately expire upon the earliest to occur of (i) the payment in full by the Investor, or its assignee pursuant to Section 4, of an amount equal to the Required Amount to BidCo and (ii) the expiry of the Certain Funds Period (the date of such earliest event being the “Commitment Expiration Date”). From and after the Commitment Expiration Date, neither the Investor nor any assignee pursuant to Section 4 shall have any further liability or obligation to BidCo hereunder. The “Certain Funds Period” means the period beginning on the date of release of the Announcement and ending on the earlier of:

 

(a)          the date on which BidCo pays the Cash Consideration in connection with and pursuant to the terms of the Offer (whether effected as a takeover offer or a Scheme); and

 

(b)          if the Offer is:

 

(i)             implemented by way of a takeover offer, the date on which the Offer lapses, terminates or (with the consent of the Irish Takeover Panel) is withdrawn; or

 

(ii)            effected by way of a Scheme, the date the Scheme lapses, terminates or is withdrawn (by order of a court or otherwise),

 

provided that a switch from a takeover offer to a Scheme or vice versa (or any amendment to the terms or conditions of the Offer or a Scheme) shall not amount to a lapse, termination or withdrawal for the purpose of this definition.

 

4.            Assignment. The Commitment shall not be assignable by the Investor, other than to another fund affiliated with the Investor; provided that, in the event of such assignment, the Investor shall remain responsible for all obligations hereunder in the event of non-performance by the Investor’s assignee (including its obligation to fund the Commitment). Any transfer or assignment in violation of this Section 4 shall be null and void ab initio.

 

5.            Entire Agreement. This Agreement contains the entire agreement of the parties with respect to the subject matter hereof and supersedes all prior agreements, arrangements and understandings with respect thereto, whether written or oral.

 

6.            No Other Relationships. Each party acknowledges and agrees that (a) this Agreement 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 Agreement 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 Investor under this Agreement are solely contractual in nature.

 

 

7.          Investor Expenses. Subject to the obligation of BidCo to use the Commitment solely for the purposes set forth in Section 1(a), BidCo agrees that, from and after the date hereof, it will pay and hold, or will cause to be paid and held, the Investor and its other Affiliates harmless against any and all liability for out-of-pocket expenses (including attorneys’ fees for the Investor) of the Investor or its other Affiliates in connection with the transactions contemplated hereby or otherwise related to its investment in BidCo. Notwithstanding anything to the contrary contained in this Section 6, any and all rights on the part of the Investor and its Affiliates to payment from BidCo pursuant to this Section 6 are expressly subordinated to any payment obligation of BidCo to MariaDB Shareholders in connection with the Offer (such payment obligation being set out in Section 1(a)).

 

8.            Amendment. This Agreement may be amended or modified, in whole or in part, only by a duly authorized agreement in writing executed by all of the parties hereto.

 

9.            Enforcement of Claims.

 

(a)          Notwithstanding anything that may be expressed or implied in this Agreement or any document or instrument delivered in connection herewith, BidCo, by its acceptance of the benefits hereof, covenants, agrees and acknowledges that no Person other than the Investor and any of its assignees that is actually assigned any obligations pursuant to this Agreement, has obligations hereunder and that, notwithstanding that the Investor is a limited partnership, neither BidCo nor any other Person has any remedy, recourse or right of recovery against, or contribution from, any Investor Affiliate (as defined below), through the Investor, BidCo or otherwise in connection with this Agreement, whether by or through attempted piercing of the corporate veil or similar proceeding, by the enforcement of any assessment or by any legal or equitable proceeding, by virtue of any statute, regulation or applicable law, by or through a claim by or on behalf of BidCo against the Investor or any Investor Affiliate, or otherwise.

 

(b)          Without limiting the foregoing, by its acceptance of this Agreement, to the maximum extent permitted by applicable law, BidCo agrees that it shall not, and shall cause each of its controlled Affiliates and their respective officers, directors, employees, representatives and agents, acting in such capacities, not to, institute any proceeding or bring any claim against the Investor or any Investor Affiliate under or in connection with or related to this Agreement or the obligations contemplated hereby under any theory of law or equity, except for claims against the Investor or any of its assignees to enforce their obligations explicitly set forth herein. For purposes of this Agreement, the term “Investor Affiliate” means (1) any former, current or future general or limited partners, stockholders, holders of any equity, partnership or limited liability company interest, officer, member, manager, director, employee, agent, attorney, controlling person, assignee or Affiliate of the Investor, or (3) any former, current or future general or limited partners, stockholders, holders of any equity, partnership or limited liability company interest, officer, member, manager, director, employee, agent, attorney, controlling person, assignee or Affiliate of any of the foregoing; provided, that, for the avoidance of doubt, no Person to which the Investor has validly assigned all or any portion of the Commitment shall be an Investor Affiliate.

 

 

10.          No Third Party Beneficiaries. This Agreement is intended to be solely for the benefit of, and enforceable by, the Investor and BidCo, and may not be enforced by any other Person, and nothing herein or in any other agreement, express or implied, is intended to or shall confer upon any other Person any rights, benefits or remedies whatsoever under or by reason of this Agreement.

 

11.          Governing Law; Jurisdiction and Venue. This Agreement shall be governed and construed in accordance with Irish law, without regard to conflict of law principles that would result in the application of any law other than Irish law. The parties (a) hereby irrevocably and unconditionally agree that the courts of the Republic of Ireland are to have exclusive jurisdiction for the purpose of any suit, action or other proceeding arising out of or based upon this Agreement, (b) agree not to commence any suit, action or other proceeding arising out of or based upon this Agreement except in the courts of the Republic of Ireland, and (c) hereby waive, and agree not to assert, by way of motion, as a defense, or otherwise, in any such suit, action or proceeding, any claim that it is not subject personally to the jurisdiction of the above-named courts, that its property is exempt or immune from attachment or execution, that the suit, action or proceeding is brought in an inconvenient forum, that the venue of the suit, action or proceeding is improper or that this Agreement or the subject matter hereof may not be enforced in or by such court.

 

12.          Severability. Any term or provision of this Agreement that is invalid, illegal or unenforceable in any situation will not affect the validity, legality or enforceability of the remaining terms and provisions hereof, or the validity, legality or enforceability of the offending term or provision in any other situation. In the event that any provision hereof would, under applicable law, be invalid, illegal or unenforceable in any respect, each party hereto intends that such provision will be construed by modifying or limiting it so as to be valid, legal and enforceable to the maximum extent compatible with, and possible under, applicable law.

 

13.          Electronic Delivery. Delivery of an executed counterpart of a signature page to this Agreement electronically, including as a pdf or similar attachment to an electronic communication, shall have the same effect as delivery of a manually executed counterpart to this Agreement.

 

14.        Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.

 

 

15.          Representations. The Investor hereby represents and warrants to BidCo that: (a) it has all limited partnership power and authority to execute, deliver and perform this Agreement; (b) the execution, delivery and performance of this Agreement by it has been duly and validly authorized and approved by all necessary limited partnership action by it, and no other proceedings or actions on the part of such Investor are necessary therefor; (c) this Agreement 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 the terms of this Agreement; (d) the Commitment is less than the maximum amount that it is permitted to invest in any one portfolio investment pursuant to the terms of its organizational or governing documents or otherwise; (e) it has, and will have for so long as this Agreement shall remain in effect, uncalled capital commitments sufficient to pay the Commitment when and as required hereunder; (f) the execution, delivery and performance of this Agreement by the Investor does not and will not (i) violate the organizational documents of the Investor, (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 under, any contract to which the Investor is a party, in any case, for which such violation, default or right would be reasonably likely to prevent or materially impede, interfere with, hinder or delay the consummation by such Investor of the transactions contemplated by this Agreement on a timely basis; (g) all consents, approvals, authorizations, permits of, filings with and notifications to, any governmental authority necessary for the due execution, delivery and performance of this Agreement 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 is required in connection with the execution, delivery or performance of this Agreement and (h) it is familiar with the Announcement and the Offer. The Investor acknowledges that BidCo has relied on the accuracy of the representations and warranties contained in this paragraph.

 

*        *        *         *        *

 

 

If this Agreement is acceptable to you, please so indicate by signing in the space indicated below.

 

	Very truly yours,
	K5 PRIVATE INVESTORS, L.P.
	By:	K5 Capital Advisors, L.P.
	Its:	General Partner
	By:	K1 Investment Management, LLC
	Its:	General Partner

 

	By:	/s/ Neil Malik
	Name:    R. Neil Malik
	Title:      Managing Member

 

Accepted and agreed to as of the date first set forth above:

 

MERIDIAN BIDCO LLC

 

By:	/s/ Sujit Banerjee
Name:   Sujit Banerjee
Its:        President

  

[Signature page to Equity Commitment Letter]

 

 

Schedule

Draft Rule 2.7 Announcement

 

(See attached)

 

 

 

Exhibit (d)(2)

 

[*]: THE IDENTIFIED INFORMATION HAS BEEN OMITTED FROM THE AGREEMENT BECAUSE IT IS BOTH (i) NOT MATERIAL AND (ii) IS THE TYPE THAT THE REGISTRANT TREATS AS PRIVATE OR CONFIDENTIAL.

 

 

LOAN PURCHASE AGREEMENT

 

Dated as of April 24, 2024

 

by and among

 

RP VENTURES LLC

 

(Seller)

 

RUNA CAPITAL II (GP)

 

(Runa Capital II)

 

RUNA CAPITAL OPPORTUNITY I (GP)

 

(Runa Capital Opportunity)

 

RUNA VENTURES I LIMITED

 

(Runa Ventures)

 

and

 

MERIDIAN TOPCO LLC
(Purchaser and Successor Agent)

 

 

 

LOAN PURCHASE AGREEMENT

 

This loan purchase agreement (this “Agreement”) is entered into as of April 24, 2024 by and between RP VENTURES LLC, a Delaware limited liability company (“Seller”), MERIDIAN TOPCO LLC, a Delaware limited liability company (in its capacity as both “Purchaser” and “Successor Agent”), and, solely for the purposes of Sections 1 and 8 through 21 (inclusive) only, each of RUNA CAPITAL II (GP), a Cayman Islands exempted company (“Runa Capital II”), RUNA CAPITAL OPPORTUNITY I (GP), a Cayman Islands exempted company (“Runa Capital Opportunity”), and RUNA VENTURES I LIMITED, a Bermuda company (“Runa Ventures” and, together with Runa Capital II and Runa Capital Opportunity, the “Runa Entities” and each a “Runa Entity”).

 

RECITALS

 

In exchange for the payment of US$66,852,043.40 (the “Purchase Price”), and for such other good and valuable consideration provided herein, Seller agrees to sell to Purchaser, and Purchaser agrees to purchase from Seller, the Transferred Interests (as hereinafter defined), subject to, and in accordance with, the terms, conditions and provisions of this Agreement.

 

AGREEMENT

 

NOW, THEREFORE, in consideration of the mutual agreements contained herein, the parties hereto, intending to be legally bound, hereby agree as follows:

 

SECTION 1.   Defined Terms. Capitalized terms shall have the meanings set forth on Schedule A hereto, or if not defined therein or herein, in the Note.

 

SECTION 2.   Nonrecourse Purchase and Assignment. As a result of arms-length negotiations between the parties hereto, in exchange for the payment of the Purchase Price, and for such other good and valuable consideration the sufficiency of which is acknowledged, Seller hereby irrevocably sells, transfers, assigns, grants and conveys to Purchaser and Purchaser hereby irrevocably purchases, assumes and accepts assignment from the Seller, free and clear of all Liens and subject to, and in accordance with, the terms of this Agreement, effective on the Closing Date, the Transferred Interests. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, THE TRANSFERRED INTERESTS ARE BEING SOLD IN AN “AS IS” CONDITION, ON A “WHERE IS” BASIS AND “WITH ALL FAULTS” AS OF THE CLOSING DATE AND WITHOUT RECOURSE OR REPRESENTATION OR WARRANTY OF ANY KIND (EXCEPT FOR SOLELY THE REPRESENTATIONS AND WARRANTIES EXPRESSLY SET FORTH IN SECTIONS 1(B), 1(C) AND 2 OF SCHEDULE C OF THIS AGREEMENT) TO OR BY SELLER OR ANY SELLER RELATED PARTY, WHETHER EXPRESS, IMPLIED OR IMPOSED BY LAW, INCLUDING: (A) AS TO THE COMPLETENESS OF ANY INFORMATION CONTAINED IN THE NOTE DOCUMENTS; (B) AS TO THE COLLECTABILITY OF ANY AMOUNT OWED TO SELLER BY ISSUER OR ANY GUARANTOR; (C) AS TO THE DUE EXECUTION OF ANY OF THE NOTE DOCUMENTS BY ISSUER OR ANY GUARANTOR; (D) AS TO THE SOLVENCY OR FINANCIAL CONDITION OF ISSUER OR ANY GUARANTOR; (E) AS TO THE VALIDITY, ENFORCEABILITY, ATTACHMENT, PRIORITY, OR PERFECTION OF ANY SECURITY INTEREST OR OTHER LIEN DESCRIBED IN THE NOTE DOCUMENTS; (F) AS TO THE EXISTENCE, QUANTITY, QUALITY, VALUE OR CONDITION OF ANY COLLATERAL; OR (G) AS TO THE ACCURACY, COMPLETENESS OR RELIABILITY OF ANY REPORTS OR OTHER INFORMATION PREPARED BY THIRD-PARTIES, INCLUDING AUDITS, APPRAISALS, OPINIONS OF VALUE, ENVIRONMENTAL SITE ASSESSMENTS, LIEN SEARCHES, TITLE SEARCHES, TITLE CERTIFICATES, PROPERTY DESCRIPTIONS, TITLE INSURANCE POLICIES AND PROPERTY SURVEYS, AND ALL RECOURSE, REPRESENTATIONS AND WARRANTIES (EXCEPT FOR SOLELY THE REPRESENTATIONS AND WARRANTIES EXPRESSLY SET FORTH IN SECTIONS 1(B), 1(C) AND 2 OF SCHEDULE C OF THIS AGREEMENT) ARE HEREBY EXPRESSLY DISCLAIMED BY SELLER, AND PURCHASER IS NOT RELYING UPON, AND SPECIFICALLY DISCLAIMS THAT IT IS RELYING, OR HAS RELIED UPON ANY SUCH OTHER REPRESENTATIONS OR WARRANTIES (EXCEPT FOR SOLELY THE REPRESENTATIONS AND WARRANTIES EXPRESSLY SET FORTH IN SECTIONS 1(B), 1(C) AND 2 OF SCHEDULE C OF THIS AGREEMENT) THAT MAY HAVE BEEN MADE BY SELLER OR ANY SELLER RELATED PARTY. FOR THE AVOIDANCE OF DOUBT, THE SELLER SHALL NOT BE OBLIGATED TO (I) ACCEPT A RE-TRANSFER, RE-PURCHASE OR RE-ASSIGNMENT OF THE TRANSFERRED INTERESTS AND (II) SUPPORT ANY LOSSES DIRECTLY OR INDIRECTLY INCURRED BY PURCHASER OR SUCCESSOR AGENT BY REASON OF THE NON-PERFORMANCE OF THE NOTE PARTIES OF THEIR OBLIGATIONS UNDER THE NOTE DOCUMENTS.

 

 

SECTION 3.   Closing and Related Matters.

 

(a)       Closing. The consummation of the purchase and sale of the Transferred Interests (the “Closing”) shall take place remotely via the exchange of documents and signatures on the date hereof (the “Closing Date”). The Closing may not be extended without the prior written approval of both Purchaser and Seller.

 

(b)       Collections Subsequent to the Closing Date. Any and all Collections in respect of the Transferred Interests received on or after the Closing Date shall be for the account of Purchaser. If at any time on or after the Closing Date, the Seller receives any Collection with respect to the Transferred Interests, the Seller shall (i) accept and hold such Collection in trust for the account and sole benefit of the Purchaser and segregate such Collection from all other funds and property held by Seller, (ii) have no equitable or beneficial interest in such Collection, and (iii) reasonably promptly (and in any event within two business days) deliver the Collection (free of any withholding, setoff, recoupment, or deduction of any kind except as required by applicable law) to the Purchaser in the same form received.

 

(c)       Resignation; Appointment. Upon the Closing, (i) Seller shall be deemed to have assigned its rights as Holder and Note Holder and be released from all of its duties, liabilities and obligations in respect thereof under the Note Documents, (ii) Seller shall be deemed to have resigned as Agent, (iii) Purchaser shall become Holder and Note Holder under the Note Documents and shall assume and be responsible for all of the rights, duties, liabilities and obligations of Holder and Note Holder under the Note Documents, and (iv) the Successor Agent shall become and be deemed to have accepted appointment as Agent under the Note Documents (as further provided in that certain (x) Agency Resignation and Assignment Agreement dated as of the Closing Date by and between Seller and Successor Agent and (y) Irish Debenture Administrative Agent Replacement Deed (collectively the “Agency Transfer Documents”)) and shall assume and be responsible for all of the rights, duties, liabilities and obligations of Agent thereunder.

 

 

(d)       Transfer Taxes. Purchaser shall be responsible with respect to any transfer taxes relating to or arising out of this Agreement and the transactions contemplated hereby, including the sale of the Transferred Interests by Seller to Purchaser.

 

SECTION 4.   Seller’s Closing Deliverables. At or prior to the Closing, the Seller shall deliver or cause to be delivered to Purchaser:

 

(a)       the Termination Agreement in the form attached hereto as Exhibit B, duly executed by Seller and Michael “Monty” Widenius;

 

(b)       this Agreement, duly executed by Seller;

 

(c)       that certain Agency Resignation and Assignment Agreement, dated as of the date hereof, by and between Seller and Successor Agent, duly executed by Seller;

 

(d)       that certain Irish Debenture Administrative Agent Replacement Deed, duly executed by Seller; and

 

(e)       the Resignation Letters, duly executed by each of Michael Fanfant and Yakob Zubarev.

 

SECTION 5.   Purchaser’s Closing Deliverables. At or prior to the Closing, the Purchaser shall deliver or cause to be delivered to Seller:

 

(a)       this Agreement, duly executed by Purchaser (including in its capacity as Successor Agent);

 

(b)       that certain Agency Resignation and Assignment Agreement, dated as of the date hereof, by and between Seller and Successor Agent, duly executed by Successor Agent;

 

(c)       that certain Irish Debenture Administrative Agent Replacement Deed, duly executed by Successor Agent; and

 

(d)       funds in an amount equal to the Purchase Price in lawful currency of the United States and in immediately available funds, to the account of the Seller set forth on Exhibit C hereto.

 

SECTION 6.   Representations and Warranties. Purchaser and Seller hereby make the representations and warranties set forth on Schedule C hereto with respect to such party. For the avoidance of doubt, Seller shall have no responsibility for the condition (financial or otherwise) of the Issuer or any other parties liable under any of the Note Documents or for the ability of the Issuer or such other parties to perform their respective obligations under the Note Documents. The representations and warranties of Purchaser and Seller set forth on Schedule C hereto shall survive until the date that is one year after the Closing Date; provided, that, such one year period shall be automatically extended for such additional time as it may take for a court of competent jurisdiction to deliver a final, non-appealable decision in respect of any claim for a breach of, or inaccuracy in, such representations and warranties, made prior to the expiration of such one year period; provided, further, that a claim for actual common law fraud in the making of the representations and warranties set forth in Schedule C may be sought at any time following the Closing. The representations and warranties made by Purchaser pursuant to this Agreement shall not be impaired by any review or examination of the Note Documents or other documents evidencing or relating to the Transferred Interest or any failure on the part of Purchaser to review or examine any such documents.

 

 

SECTION 7.   Purchaser Release.

 

(a)       Effective as of the Closing, each of the Purchaser and the Successor Agent on its behalf and on behalf of its Related Parties (each, a “Purchaser Releasor”), hereby unconditionally, irrevocably, voluntarily and knowingly forever releases each of the Seller and the Seller Related Parties (collectively, the “Seller Released Parties”) from all claims, counterclaims, demands, damages, losses, costs, expenses (including attorneys’ fees), debts, suits, obligations, liabilities, cross-claims, interests, controversies, actions and causes of action of any kind or nature whatsoever, whether individually or collectively, arising on or prior to the date hereof or in the future, whether arising at law or in equity, known or unknown, direct or indirect, actual or potential, liquidated or unliquidated, absolute or contingent, foreseen or unforeseen, asserted or unasserted, and including any rights to indemnity or contribution of which any Purchaser Releasor has ever had, now has or in the future may have in respect of any duty, obligation, act or omission by any Seller Released Party prior to the Closing, in each case, to the extent arising out of, in connection with, or relating to (x) the Seller’s ownership of the Transferred Interests or status as a Holder, a Note Holder and/or an Agent under the Note or any other Note Documents (other than any claims against the Seller or any Runa Entity pursuant to this Agreement, which claims, notwithstanding any other provision hereof, are not released pursuant to this Section 7(a)) or (y) any act or omission, error, negligence, breach of contract, tort, violation of law, matter or cause whatsoever arising from, in connection with, or relating to the Note Documents or the transactions contemplated thereby. The release contemplated in this Section 7(a) is expressly intended to benefit, and may be enforced directly by, any Seller Released Party.

 

(b)       The Purchaser and the Successor Agent on its behalf and on behalf of each other Purchaser Releasor, as applicable, hereby expressly agrees that the release contemplated by the foregoing Section 7(a) extends to any and all rights granted under Section 1542 of the California Civil Code (“Section 1542”) and any analogous state law or federal law or regulation, and all such rights are hereby expressly, irrevocably and unconditionally waived. Section 1542 reads as follows:

 

“A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.”

 

(c)       The Purchaser and the Successor Agent on its behalf and on behalf of each other Purchaser Releasor, as applicable, understands that Section 1542, or a comparable statute, rule, regulation or order of another jurisdiction, gives such Person the right not to release existing claims of which such Person is not aware, unless such Person voluntarily chooses to waive this right. Having been so apprised, the Purchaser, and the Purchaser on behalf of each other Purchaser Releasor, nevertheless hereby voluntarily elects to and does waive the rights described in Section 1542, or such other comparable statute, rule, regulation or order, and elects to assume all risks for claims that exist, existed or may hereafter exist in its favor, known or unknown, suspected or unsuspected, arising out of or related to claims or other matters purported to be released pursuant to this Section 7. The Purchaser, and the Purchaser on behalf of each other Purchaser Releasor, acknowledges and agrees that the foregoing waiver is an essential and material term of this Agreement and that, without such waiver, the Seller would not have agreed to the terms of this Agreement. The Purchaser and the Successor Agent on its behalf and on behalf of each other Purchaser Releasor, as applicable, hereby represents to the Seller that it understands and acknowledges that it may hereafter discover facts and legal theories concerning the Seller Released Parties or the subject matter hereof in addition to or different from those which it now believes to be true. The Purchaser and the Successor Agent on its behalf and on behalf of each other Purchaser Releasor, as applicable, understands and hereby agrees that the release set forth in this Section 7 shall remain effective in all respects notwithstanding those additional or different facts and legal theories or the discovery of those additional or different facts or legal theories. The Purchaser and the Successor Agent on its behalf and on behalf of each other Purchaser Releasor, as applicable, assumes the risk of any mistake of fact or applicable law with regard to any potential claim or with regard to any of the facts that are now unknown to it relating thereto.

 

 

(d)       The Purchaser and the Successor Agent, on its behalf and on behalf of each other Purchaser Releasor, as applicable, covenants that none of the Purchaser, the Successor Agent nor any Purchaser Releasor, as applicable, will (and that each of the Purchaser and the Successor Agent will cause the Purchaser Releasors not to) sue, or bring, assert or otherwise pursue any allegation, claim, proceeding or other action against any of the Seller Released Parties on the basis of any matters released pursuant to this Section 7, regardless of whether such allegation, claim, proceeding or other action is enforceable under, or not prohibited by, applicable law or otherwise. Each of the Purchaser and the Successor Agent, on its behalf and on behalf of each other Purchaser Releasor, as applicable, agrees and acknowledges that it might hereafter discover facts or documents in addition to or different from those which it now knows or believes to be true or exist with respect to the subject matter of any of the claims which it is releasing under Section 7(a), but no Seller Released Party in any capacity shall have any duty to disclose or provide any such facts or documents (whether material or immaterial, known or unknown, suspected or unsuspected, foreseen or unforeseen) to such Purchaser Releasor solely by reason of the releases in Section 7(a), and each Purchaser Releasor shall be deemed to have fully, finally and forever settled and released any and all claims, whether known or unknown, concealed, suspected or unsuspected, contingent or non-contingent, assertable directly or derivatively by class representative or individual, which now exist or heretofore have existed or will in the future exist to the extent such claims are actually released in Section 7(a).

 

SECTION 8.   Seller Release; Certain Agreements.

 

(a)       Effective as of the Closing, the Seller and each Runa Entity on its behalf and on behalf of the Seller Related Parties (each, a “Seller Releasor”), hereby unconditionally, irrevocably, voluntarily and knowingly forever releases each of the Issuer and its Subsidiaries, the Purchaser, the Successor Agent and each of their respective Related Parties (collectively, the “Purchaser Released Parties”) from all claims, counterclaims, demands, damages, losses, costs, expenses (including attorneys’ fees), debts, suits, obligations, liabilities, cross-claims, interests, controversies, actions and causes of action of any kind or nature whatsoever, whether individually or collectively, arising on or prior to the date hereof or in the future, whether arising at law or in equity, known or unknown, direct or indirect, actual or potential, liquidated or unliquidated, absolute or contingent, foreseen or unforeseen, asserted or unasserted, and including any rights to indemnity or contribution of which any Seller Releasor has ever had, now has or in the future may have in respect of any duty, obligation, act or omission by any Purchaser Released Party prior to the Closing, in each case, to the extent arising out of, in connection with, or relating to (x) the Seller’s ownership of the Transferred Interests or status as a Holder, a Note Holder and/or an Agent under the Notes or any other Note Documents, (y) any act or omission, error, negligence, breach of contract, tort, violation of law, matter or cause whatsoever arising from, in connection with, or relating to the Note Documents or the transactions contemplated thereby or (z) the nondisclosure of Seller Excluded Information in connection with the transactions contemplated hereby (collectively, the “Seller Released Claims”). The release contemplated in this Section 8(a) is expressly intended to benefit, and may be enforced directly by, any Purchaser Released Party.

 

 

(b)       The Seller and each Runa Entity, and the Seller on behalf of each other Seller Releasor, hereby expressly agrees that the release contemplated by the foregoing Section 8(a) extends to any and all rights granted under Section 1542 (as set forth in Section 7(b) above) and any analogous state law or federal law or regulation, and all such rights are hereby expressly, irrevocably and unconditionally waived.

 

(c)       The Seller and each Runa Entity, and the Seller on behalf of each other Seller Releasor, understands that Section 1542, or a comparable statute, rule, regulation or order of another jurisdiction, gives such Person the right not to release existing claims of which such Person is not aware, unless such Person voluntarily chooses to waive this right. Having been so apprised, the Seller and each Runa Entity, and the Seller on behalf of each other Seller Releasor, nevertheless hereby voluntarily elects to and does waive the rights described in Section 1542, or such other comparable statute, rule, regulation or order, and elects to assume all risks for claims that exist, existed or may hereafter exist in its favor, known or unknown, suspected or unsuspected, arising out of or related to claims or other matters purported to be released pursuant to this Section 8. The Seller and each Runa Entity, and the Seller on behalf of each other Seller Releasor, acknowledges and agrees that the foregoing waiver is an essential and material term of this Agreement and that, without such waiver, the Purchaser would not have agreed to the terms of this Agreement. The Seller and each Runa Entity, and the Seller on behalf of each other Seller Releasor, hereby represents to the Purchaser that it understands and acknowledges that it may hereafter discover facts and legal theories concerning the Purchaser Released Parties or the subject matter hereof in addition to or different from those which it now believes to be true. The Seller and each Runa Entity, and the Seller on behalf of each other Seller Releasor, understands and hereby agrees that the release set forth in this Section 8 shall remain effective in all respects notwithstanding those additional or different facts and legal theories or the discovery of those additional or different facts or legal theories. The Seller and each Runa Entity, and the Seller on behalf of each other Seller Releasor, assumes the risk of any mistake of fact or applicable law with regard to any potential claim or with regard to any of the facts that are now unknown to it relating thereto.

 

 

(d)       The Seller and each Runa Entity, and the Seller on behalf of each other Seller Releasor, covenants that neither any Runa Entity nor the Seller nor any Seller Releasor will (and that Seller will cause all of Seller Releasors not to) sue, or bring, assert or otherwise pursue any allegation, claim, proceeding or other action against any of the Purchaser Released Parties on the basis of any matters released pursuant to this Section 8, regardless of whether such allegation, claim, proceeding or other action is enforceable under, or not prohibited by, applicable law or otherwise. The Seller and each Runa Entity, and the Seller on behalf of each other Seller Releasor, agrees and acknowledges that it might hereafter discover facts or documents in addition to or different from those which it now knows or believes to be true or exist with respect to the subject matter of any of the claims which it is releasing under Section 8(a), but no Purchaser Released Party in any capacity shall have any duty to disclose or provide any such facts or documents (whether material or immaterial, known or unknown, suspected or unsuspected, foreseen or unforeseen) to such Seller Releasor solely by reason of the releases in Section 8(a), and each Seller Releasor shall be deemed to have fully, finally and forever settled and released any and all claims, whether known or unknown, concealed, suspected or unsuspected, contingent or non-contingent, assertable directly or derivatively by class representative or individual, which now exist or heretofore have existed or will in the future exist to the extent such claims are actually released in Section 8(a). Notwithstanding anything herein to the contrary, the Seller Released Claims shall not include, and nothing contained in this Agreement is intended to limit, impair or otherwise modify or affect, any right or claim of (i) any Seller Releasor, or increase or expand the obligations of any Seller Releasor, under or pursuant to any indemnification, exculpation, expense advancement or other rights that any Seller Releasor may be entitled to solely in their capacity as a manager, director or officer of the Issuer or any of its Subsidiaries (the “Covered Persons”) pursuant to applicable law or the organizational documents of the Issuer or any of its Subsidiaries or any existing directors’ and officers’ liability insurance policy as in effect on the date hereof or any replacement of such policy or (A) that certain Indemnification Agreement, dated as of April 17, 2024 and effective as of October 10, 2023, by and between MariaDB USA, Inc. and Yakov Zubarev and (B) that certain Indemnification Agreement, dated as of April 17, 2024 and effective as of October 10, 2023, by and between MariaDB USA, Inc. and Michael Fanfant, (ii) Seller against the Purchaser pursuant to this Agreement or (iii) any rights that any Seller Releasor may have pursuant to Section 37 and Section 38 of the Note, which rights shall continue to inure to any such Seller Releasor’s benefit (collectively, the “Preserved Claims”).

 

(e)       The Seller, and the Seller on behalf of each other Seller Releasor, and each Runa Entity, and each Runa Entity on behalf of its Related Parties, hereby acknowledges and agrees that during the period from the Closing Date until the earlier of the date that (x) is three years after the Closing Date and (y) (1) no amounts are due or payable under the Note or any other Note Document to Purchaser or any permitted assignee that is an Affiliate of Purchaser, (2) any Person (whether a single purchaser or related group of purchasers), other than Purchaser or any of its Related Parties that constitute a group as defined under Rule 13d-5(b)(1) promulgated under the Securities Exchange Act of 1934, as amended, acquires in a single transaction or series of related transactions Relevant Securities or other equity securities of Issuer representing more than fifty percent (50%) of the outstanding debt or equity interests in Issuer and its Subsidiaries and (3) neither Purchaser nor any of its Related Parties holds any debt or equity interest in Issuer and its Subsidiaries, it shall not and shall cause such other Persons not to, directly or indirectly through any other Person (i) object to, challenge, or commence any legal proceedings against any Purchaser Released Party with respect to, the Purchaser’s or any of its Related Parties’ acquisition of debt or equity securities in the Issuer or any of its Subsidiaries (collectively, the “Contemplated Transactions”), (ii) engage in any action that would reasonably be expected to adversely interfere with, impede, delay, or otherwise affect Purchaser’s or one of its Affiliates’ consummation of any Contemplated Transaction (including by acting alone or in concert with others to seek representation on or to control or influence the management, board of directors or policies of the Issuer or its Subsidiaries) (but, for the avoidance of doubt, without limiting any and all Preserved Claims), (iii) solicit, initiate or knowingly encourage any proposal or offer to the Issuer or its Subsidiaries that constitutes or would reasonably be expected to lead to an alternative transaction to any Contemplated Transaction with a Person (other than Purchaser or one of its Affiliates), (iv) initiate or participate in any communication with third parties with the intention of discouraging or dissuading them from proceeding with any transaction with Purchaser or one of its Affiliates with respect to the debt or equity securities of the Issuer or its Subsidiaries, (v) enter into any agreement, purchase agreement, letter of intent, tender agreement, or similar agreement with respect to an alternative transaction to a Contemplated Transaction involving a Person other than Purchaser or one of its Affiliates, (vi) effect or seek, offer or propose (whether publicly or otherwise) to effect, or participate in, knowingly facilitate or knowingly encourage any other Person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, any acquisition of any equity interest (or beneficial ownership thereof), or rights or options to acquire any equity interest (or beneficial ownership thereof), any material assets, or any indebtedness or businesses of the Issuer or any of its Subsidiaries, or (vii) take any action that would reasonably be expected to result in a request by a court of competent jurisdiction or a Governmental Authority to disclose, or would reasonably be expected to cause or require the Purchaser, the Issuer or any of their respective Related Parties to disclose or make a public announcement regarding, any Confidential Information or any matter of the type set forth in this Section; provided, that nothing in this Section 8 shall restrict the Seller, any other Seller Releasor, any Runa Entity, or any Related Party of any Runa Entity, from disposing of any equity securities of the Issuer that any of them hold as of the date hereof after December 31, 2024 or from taking any actions in furtherance thereof, including the solicitation of purchasers for such equity securities; provided, further, that the foregoing proviso shall not be available to Seller, any other Seller Releasor, any Runa Entity, or any Related Party of any Runa Entity, if the failure by Purchaser or any of its Related Parties to acquire such equity securities of the Issuer prior to December 31, 2024, was caused, in any material respect, by the failure of Seller, any other Seller Releasor, any Runa Entity, or any Related Party of any Runa Entity, to comply with the restrictions set forth in this Section 8(e)).

 

 

(f)       In the event that the Purchaser assigns the Note to a Related Party, Purchaser shall cause such Related Party to assume Purchaser’s obligations under this Section 8. Any purported transfer which is not in accordance with the terms and conditions of this Section 8(f) shall be null and void ab initio and of no force or effect.

 

SECTION 9.   Confidentiality; Non-Solicitation.

 

(a)       Subject to the exceptions set forth in this Section 9(a), during the period from the Closing Date until the date that is three years after the Closing Date, Seller shall, and shall cause each Seller Related Party (excluding each Runa Entity), and each Runa Entity shall, and shall cause each of its Related Parties that has received Confidential Information (all such Persons, the “Restricted Parties”), not to disclose, and to treat and hold as strictly confidential, all Confidential Information and refrain from using any Confidential Information; provided, that notwithstanding anything herein to the contrary, nothing will prohibit the Restricted Parties from disclosing any Confidential Information to the extent (i) a Restricted Party is making internal announcements to their respective equity holders and prospective equity holders in connection with their fundraising and reporting activities or (ii) any such disclosure is made in connection with and necessary for the enforcement of any right or remedy relating to this Agreement or the transactions contemplated hereby. Upon the request of Purchaser at any time after Closing, the Restricted Parties shall deliver promptly to Purchaser or destroy all tangible embodiments of the Confidential Information in their possession or under their control and provide confirmation thereof in writing; provided, that, notwithstanding anything herein to the contrary, no Restricted Party shall be required to return, destroy or erase (i) any Confidential Information that is contained in any attorney work product created in connection with a transaction with the Issuer or any of its Subsidiaries, the Purchaser or the Successor Agent, (ii) so much of the Confidential Information as the Restricted Party or any of its representatives reasonably believes is necessary to comply with any legal, regulatory or data protection requirements or bona fide pre-existing document retention policies or (iii) so much of the Confidential Information which is contained in an archived computer system in accordance with such Person’s security, backup and/or disaster recovery procedures. If a Restricted Party or any of the Restricted Party’s Related Parties is requested or required to disclose any Confidential Information under applicable law, the Restricted Party shall, to the extent practicable, notify Purchaser promptly so that Purchaser may seek, at its own cost and expense, an appropriate protective order or waive compliance with the provisions of this Section 9(a). In the absence of a protective order or the receipt of a waiver hereunder, the Restricted Party or its Related Party may disclose Confidential Information to any Governmental Authority, but only to the extent to which their respective counsel advises such Restricted Party or its Related Party is legally required or requested to disclose, without liability hereunder; provided, that such Person shall use its commercially reasonable efforts to obtain an order or other assurance at the Purchaser’s sole cost and expense that confidential treatment shall be accorded to such Confidential Information. Notwithstanding the foregoing, no such notice shall be required in the case of routine requests for information from any Restricted Party or its Related Parties by bank, securities, tax, regulatory, professional or similar authorities with jurisdiction over any Restricted Party or any of its Related Parties, as applicable (which may include any bank regulator or public accounting oversight body), or in connection with any response thereto; provided that the proceeding or request is not specifically targeted at the Issuer or any of its Subsidiaries, the Purchaser, the Successor Agent or any of their respective Related Parties, or the Confidential Information, and the Restricted Party or its Related Party, as applicable, uses commercially reasonable efforts to ensure confidential treatment of such requested information at the Purchaser’s sole cost and expense.

 

 

(b)       During the period from the Closing Date until the earlier of the date that (x) is three years after the Closing Date and (y) (1) no amounts are due or payable under the Note or any other Note Document to Purchaser or any permitted assignee that is an Affiliate of Purchaser, (2) any Person (whether a single purchaser or related group of purchasers), other than Purchaser or any of its Related Parties that constitute a group as defined under Rule 13d-5(b)(1) promulgated under the Securities Exchange Act of 1934, as amended, acquires in a single transaction or series of related transactions Relevant Securities or other equity securities of Issuer and its Subsidiaries representing more than fifty percent (50%) of the outstanding debt or equity interests in Issuer and its Subsidiaries and (3) neither Purchaser nor any of its Related Parties holds any debt or equity interest in Issuer and its Subsidiaries, the Seller shall not, and shall cause each Seller Related Party (excluding each Runa Entity) not to, and each Runa Entity shall not, and shall cause each of its Related Parties (collectively, the “Restricted Group”) not to, for itself or on behalf of another Person (i) (x) directly or indirectly solicit for employment or knowingly encourage any employee, consultant, adviser, or independent contractor of the Issuer or its Subsidiaries who was employed, hired or engaged by the Issuer or its Subsidiaries immediately prior to the Closing to leave the employ, service relationship or engagement of the Issuer or its Subsidiaries, or in any way knowingly interfere adversely with the relationship between the Issuer or its Subsidiaries and any such employee, consultant, adviser, or independent contractor who was an employee, consultant, adviser, or independent contractor of the Issuer or its Subsidiaries as of the Closing or (y) employ, hire or engage any such Person who is or was, at any time within 12 months of such proposed employment, hiring or engagement, employed, hired or engaged by the Issuer or its Subsidiaries (provided, that the foregoing clause (i) shall not prohibit any member of the Restricted Group from engaging in solicitations for employees, consultants, advisers or independent contractors, so long as such solicitations are general in nature, do not specifically target employees, consultants, advisers or independent contractors of the Issuer or its Subsidiaries, and do not result in the employment or engagement of such Persons who respond to such general solicitations), (ii) intentionally and actively induce, any specific customer, supplier, licensor, licensee, vendor, lessor or other material business relation of the Issuer or its Subsidiaries as of the Closing (each a “Business Relation”) to cease doing business with, or otherwise modify adversely the business done with, the Issuer or its Subsidiaries or (iii) in any way knowingly and intentionally interfere with the relationship between any specific Business Relation and the Issuer or its Subsidiaries that is in effect as of the Closing.

 

 

(c)       During the period from the Closing Date until the earlier of the date that (x) is three years after the Closing Date and (y) (1) no amounts are due or payable under the Note or any other Note Document to Purchaser or any permitted assignee that is an Affiliate of Purchaser, (2) any Person (whether a single purchaser or related group of purchasers), other than Purchaser or any of its Related Parties that constitute a group as defined under Rule 13d-5(b)(1) promulgated under the Securities Exchange Act of 1934, as amended, acquires in a single transaction or series of related transactions Relevant Securities or other equity securities of Issuer and its Subsidiaries representing more than fifty percent (50%) of the outstanding debt or equity interests in Issuer and its Subsidiaries and (3) neither Purchaser nor any of its Related Parties holds any debt or equity interest in Issuer and its Subsidiaries, the Seller shall not, and shall cause each Seller Related Party (excluding each Runa Entity) not to, and each Runa Entity shall not, and shall cause each of its Related Parties not to, directly or indirectly, for itself or on behalf of another Person (i) (1) create, develop or otherwise produce or invest in (including by investing in any Person but excluding, for clarity, charitable donations or contributions to, sponsorships or forums of and similar activities involving the MariaDB Foundation or any of its Subsidiaries) any open source based SQL database that use or are forked from any portion of the existing source code of the MariaDB Foundation, Issuer and/or its Subsidiaries, including without limitation MySQL, and that are or would reasonably be expected to be competitive with the products or services provided by Issuer and/or its Subsidiaries as of the Closing or (2) use any portion of the existing source code of MariaDB Foundation, Issuer and/or its Subsidiaries as of the Closing to create, develop, or produce a competitive product or service to such products or services provided by Issuer and its Subsidiaries as of the Closing, or (ii) solicit Michael “Monty” Widenius for employment or any consultant, independent contractor or other engagement, or otherwise any commercial relationship, or employ or engage him in any such capacity, or otherwise enter into any commercial agreement or arrangement with him that adversely interferes in any material respect or would reasonably be expected to adversely interfere in any material respect with the relationship between Mr. Widenius and Issuer or any of its Subsidiaries (provided, that the restriction in this clause (ii) shall not prohibit interactions between (x) on the one hand, Seller, any Seller Related Party, any Runa Entity or any of their Related Parties, and, on the other hand, Mr. Widenius, that do not directly or indirectly relate to such employment, consulting, independent contractor or other commercial relationship or (y) on the one hand, Acronis AG, a company organized under the laws of Switzerland (“Acronis AG”), and, on the other hand, Mr. Widenius, so long as none of Seller, any Seller Related Party, any Runa Entity or any of their Related Parties (in each case, other than Acronis AG) causes, directs or actively facilitates or encourages Acronis AG to take any action prohibited by this Section 9(c).

 

 

(d)       Notwithstanding anything to the contrary in this Section 9 (but subject to the following provisions of this Section 9(d)), actions of any portfolio company (as such term is used in the investment industry) of Seller or any Runa Entity or of any of their Related Parties or affiliated investment funds shall not be considered a breach of the restrictions in Section 9 of this Agreement unless (i) such portfolio company has received Confidential Information from Seller, any Seller Related Party, any Runa Entity or any of such Runa Entity’s Related Parties (each such Person, excluding any portfolio company of any such Person, a “Runa Affiliated Person”), or (ii) any Runa Affiliated Person has directed, actively facilitated, encouraged, or caused the portfolio company to engage in such activities that are proscribed under this Section 9. Notwithstanding the forgoing, Confidential Information will not be deemed to have been received by a portfolio company under clause (i) above from a Runa Affiliated Person solely as a result of any Runa Affiliated Person (whether or not such Person has been provided with or has knowledge of Confidential Information) serving as a director, officer, board observer or manager of such portfolio company.

 

SECTION 10.   Governing Law; Dispute Resolution; JURY WAIVER. This Agreement shall be governed by the internal law of the State of Delaware, without regard to conflict of law principles that would result in the application of any law other than the law of the State of Delaware. The parties (a) hereby irrevocably and unconditionally submit to the jurisdiction of the state courts of Delaware and to the jurisdiction of the United States District Court for the District of Delaware for the purpose of any suit, action or other proceeding arising out of or based upon this Agreement, (b) agree not to commence any suit, action or other proceeding arising out of or based upon this Agreement except in the state courts of Delaware and the United States District Court for the District of Delaware, and (c) hereby waive, and agree not to assert, by way of motion, as a defense, or otherwise, in any such suit, action or proceeding, any claim that it is not subject personally to the jurisdiction of the above-named courts, that its property is exempt or immune from attachment or execution, that the suit, action or proceeding is brought in an inconvenient forum, that the venue of the suit, action or proceeding is improper or that this Agreement or the subject matter hereof may not be enforced in or by such court. THE PARTIES TO THIS AGREEMENT HEREBY WAIVE THEIR RIGHT TO A TRIAL BY JURY WITH RESPECT TO DISPUTES ARISING UNDER THIS AGREEMENT AND CONSENT TO A BENCH TRIAL WITH THE APPROPRIATE JUDGE ACTING AS THE FINDER OF FACT.

 

SECTION 11.    Modification; Waiver in Writing. This Agreement shall not be modified, cancelled or terminated except by an instrument in writing signed by the party against whom enforcement of such modification, cancellation or termination is being sought. The party seeking modification of this Agreement shall be solely responsible for any and all expenses that may arise in order to modify this Agreement. No waiver of any condition or of any failure of any party to comply with any covenant or other obligation hereunder shall be valid unless set forth in a writing signed by the party against whom such waiver is to be enforced. No waiver by any party of any condition or failure of any party to comply with any covenant or other obligation, whether intentional or not, shall be deemed to extend to any other prior or subsequent condition or failure to comply with any covenant or other obligation, or affect any rights arising by virtue of any other prior or subsequent such occurrence.

 

 

SECTION 12.   Successors and Assigns; Third Party Beneficiaries. This Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective successors and permitted assigns. Neither this Agreement, the Transferred Interests (including any Proceeds in respect of the Transferred Interests), nor any of the rights, interests or obligations hereunder may be assigned or delegated by any party without the prior written consent of the other parties hereto, and any such purported assignment or delegation without such consent shall be void ab initio; provided that notwithstanding the foregoing, Purchaser may assign and transfer the Transferred Interests (including any Proceeds in respect of the Transferred Interests) or any of its rights, interests or obligations hereunder to any of its Affiliates without Seller’s consent so long as the Transferred Interests (including any Proceeds in respect of the Transferred Interests) and any obligations of Purchaser hereunder are simultaneously transferred to such Affiliate. Except as expressly provided herein (including in Sections 7(a) and 8(a), in respect of, respectively, Seller Released Parties and Purchaser Released Parties that are third-party beneficiaries thereof), none of the provisions of this Agreement shall be for the benefit of or enforceable by any Person not a party hereto.

 

SECTION 13.   Notices. All communications between the parties or notices or other information sent under this Agreement shall be in writing, hand-delivered or sent by overnight courier, mailed by certified or registered mail or emailed, addressed to the relevant party at its address or email address specified in the signature blocks to this Agreement or at such other address or email address as such party shall designate in writing. All such communications and notices shall be effective upon receipt.

 

SECTION 14.   Headings; Etc. The headings in this Agreement are included herein for convenience of reference only and shall not constitute a part of this Agreement for any other purpose. Unless otherwise set forth herein, all references herein to a specified Section shall mean and refer to the specified Section of this Agreement.

 

SECTION 15.   Counterparts. This Agreement may be executed in any number of counterparts and by the different parties hereto on separate counterparts and each such counterpart shall be deemed to be an original, but all such counterparts shall together constitute but one and the same Agreement. Receipt by telecopy of any executed signature page to this Agreement shall constitute effective delivery of such signature page. This Agreement to the extent signed and delivered by means of a facsimile machine or other electronic transmission (including “pdf”), shall be treated in all manner and respects and for all purposes as an original agreement or amendment and shall be considered to have the same binding legal effect as if it were the original signed version thereof delivered in person. No party hereto shall raise the use of a facsimile machine or other electronic transmission to deliver a signature or the fact that any signature or agreement or amendment was transmitted or communicated through the use of a facsimile machine or other electronic transmission as a defense to the formation or enforceability of a contract and each such party forever waives any such defense.

 

 

SECTION 16.   Entire Agreement. This Agreement, together with the schedules and exhibits attached hereto, constitutes the entire agreement among the parties hereto with respect to the subject matter contained in this Agreement and supersedes all prior agreements, understandings and negotiations, written or oral, between the parties.

 

SECTION 17.   Rules of Construction. The parties acknowledge that each party and its counsel have reviewed this Agreement and the parties hereby agree that the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of this Agreement or any amendments, schedules or exhibits hereto. The words “including” and “includes” when used in this Agreement shall be deemed followed by the words “without limitation”.

 

SECTION 18.   Further Assurance. Each party agrees that, from and after the Closing, it shall execute, acknowledge and deliver such other instruments, documents, certificates, Irish Companies Registration Office filings and notices, and take such actions as the other parties may reasonably request, and at the requesting party’s sole cost and expense, in order to effectuate the purposes of and transactions described in this Agreement; provided, that, notwithstanding anything to the contrary, all such documents to be executed and actions to be taken by Seller shall be without recourse, representation or warranty of any kind, except as expressly provided in Sections 1(b), 1(b) and 2 of Schedule C of this Agreement. To the extent permitted by applicable law, Purchaser agrees to assume, as of the Closing Date, all obligations with respect to federal, state and local income tax informational reporting related to the Transferred Interest with respect to periods after the Closing Date. Purchaser further agrees to use commercially reasonable efforts to cooperate with Seller to the extent reasonably necessary to allow Seller to fulfill its obligations with respect to such informational reporting for such Transferred Interest for the period prior to the Closing Date. This covenant shall survive the Closing of the transactions described in this Agreement.

 

SECTION 19.   Severability. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any term of this Agreement or the application of any such term to any Person or circumstance shall be held to be prohibited by or invalid, illegal or unenforceable under applicable law in any respect by a court of competent jurisdiction, such provision shall be ineffective only to the extent of such prohibition or invalidity, illegality or unenforceability, without invalidating the remainder of such provision or the remaining provisions of this Agreement.

 

 

SECTION 20.   Specific Performance. Each party hereto acknowledges and agrees that if any provisions of this Agreement are not performed in accordance with their specific terms or are otherwise breached (including if the Closing is not consummated by any party) then money damages would be inadequate (and therefore, the non-breaching party would have no adequate remedy at law) and the non-breaching party would be irreparably damaged. Accordingly, each party hereto agrees that each other party may be entitled to specific performance, an injunction or other equitable relief (without posting any bond or other security or needing to prove irreparable harm or damages) to prevent any breach or threatened breach of this Agreement and to enforce specifically the terms hereof and obligations of the other parties to this Agreement in any action instituted in any court of competent jurisdiction, in addition to any other remedy to which such party may be entitled at law, in equity or pursuant to this Agreement. This right of specific performance and other equitable relief is an integral part of the transactions contemplated by this Agreement and without such rights no party would have entered into this Agreement. The parties hereto agree not to assert that a remedy of specific performance or other equitable relief is unenforceable, invalid, contrary to law or inequitable for any reason, and not to assert that a remedy of monetary damages would provide an adequate remedy or that any other party otherwise has an adequate remedy at law.

 

SECTION 21.   LIMITATION ON DAMAGES. NO PARTY HERETO SHALL BE ENTITLED TO RECOVER FROM ANY OTHER PARTY ANY EXEMPLARY OR PUNITIVE DAMAGES (EXCEPT AS MAY BE AWARDED TO ANY THIRD PARTY THAT IS NOT A RELATED PARTY OF PURCHASER OR THE ISSUER) ON ACCOUNT OF ANY BREACH OF THIS AGREEMENT.

 

 

SECTION 22.   D&O Coverage. If, at such time that coverage under the Issuer’s existing officers’ and directors’ liability insurance shall terminate as a result of any transaction (including upon the consummation of the Contemplated Transactions), and Purchaser or any Related Party has the power and authority to cause the Issuer to purchase an officers’ and directors’ liability “tail” insurance policy, then, unless such “tail” insurance policy has previously been purchased by the Issuer, Purchaser shall at such time (or as soon as reasonably practicable thereafter) cause the Issuer to purchase such “tail” insurance policy at the sole cost and expense of Issuer or the Purchaser and/or the Related Parties of Purchaser (which costs and expenses shall be funded by Issuer, the Purchaser and/or a Related Party of the Purchaser at the time of such policy being bound) that provides customary “tail” coverage for Covered Persons (the “D&O Coverage”) on terms (including limits on liability) no less favorable than the directors’ and officers’ liability insurance policy providing coverage to the Covered Persons immediately prior to Closing. For so long as Issuer is a Related Party of Purchaser or Purchaser or a Related Party of Purchaser otherwise has the power and authority to control the Issuer, Purchaser shall, and shall cause Issuer to, (a) cooperate with the Covered Persons so that they can effectively avail themselves of the D&O Coverage on the same basis as the other insureds who are natural persons under the D&O Coverage, and (b) for a period of six years from the date on which Purchaser and/or a Related Party of Purchaser gains such control (or such lesser period in the event that Purchaser subsequently ceases to hold or control a majority of such securities), not, and cause the Issuer not to (i) take any action to cause the D&O Coverage (or any officers’ and directors’ liability insurance then in effect) to be cancelled or any provision therein, without the prior written consent of the Covered Persons, to be amended or waived in a manner adverse to the Covered Persons or (ii) cause any changes or amendments to the organizational documents of the Issuer or any of its Subsidiaries that would adversely affect the rights of the Covered Persons thereunder with respect to exculpation from liability, indemnification or advancement of expenses in respect of acts or omissions of such Covered Persons. If Purchaser or the Issuer, or any of their respective successors or assigns, (x) consolidates with or merges into any other Person, (y) transfers all or substantially all of its properties or assets to any other Person or (z) no longer has the power, directly or indirectly to direct or cause the direction of management or policies of the Issuer or its Subsidiaries, whether by contract or otherwise, then, and in each case, commercially reasonable efforts shall be used to provide that the successors and assigns of Purchaser, such Purchaser Related Party or the Issuer, as the case may be, are required to honor Purchaser’s obligations set forth in this Section 22. In connection with the forgoing obligations of Purchaser, Purchaser agrees to (a) pay (or cause Issuer to pay) all costs and expenses when required to be funded to bind the D&O Coverage in accordance herewith and (b) not, prior to satisfying its obligations in the foregoing clause (a), pay or cause any of its Related Parties to pay the costs and expenses of any officers’ and directors’ liability insurance providing coverage to directors and officers of Issuer in office immediately following Closing.

 

 

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date first above written.

 

SELLER:

 

RP VENTURES LLC, a Delaware limited liability company

 

By:

/s/ Michael Fanfant

Name: Michael Fanfant

Title: Manager

 

Address: 595 Pacific Ave, Floor 4, San Francisco CA 94133

 

Email address: rpventures@gmail.com

 

Attention: Michael Fanfant, Manager

 

Signature Page to Loan Purchase Agreement

S-1

 

	PURCHASER AND SUCCESSOR AGENT:
	MERIDIAN TOPCO LLC,
	a Delaware limited liability company

 

By:

/s/ Sujit Banerjee

	Name: Sujit Banerjee
	Title: President

 

	Address:
	c/o K1 Investment Management
	875 Manhattan Beach Blvd.
	Manhattan Beach, California 90266
	Email address: [*]
	Attention: Sujit Banerjee

 

Signature Page to Loan Purchase Agreement

S-2

 

	RUNA ENTITIES:
	RUNA CAPITAL II (GP),
	a Cayman Islands exempted company

 

By:

/s/ Gary Carr

	Name: Gary Carr
	Title: Director

 

	RUNA CAPITAL OPPORTUNITY I (GP),
	a Cayman Islands exempted company

By:

/s/ Gary Carr

	Name: Gary Carr
	Title: Director

 

	RUNA VENTURES I LIMITED,
	a Bermuda company

 

	By: Runa Capital Opportunity I (GP)
	(Managing Shareholder)

 

By:

/s/ Gary Carr

	Name: Gary Carr
	Title: Director

 

	Address: 595 Pacific Ave, Floor 4, San Francisco, CA 94133
	Email address: notices@runacap.com
	Attention: Gary Carr, Director

 

Signature Page to Loan Purchase Agreement

S-3

 

SCHEDULE A

 

Definitions

 

(a)       “Affiliate” of any Person means (a) any other Person which, directly or indirectly, controls or is controlled by or is under common control with such Person and (b) any officer or director of such Person. A Person shall be deemed to be “controlled by” any other Person if such Person possesses, directly or indirectly, power to (x) vote 10% or more of the securities (on a fully diluted basis) having ordinary voting power for the election of directors or managers or (y) direct or cause the direction of the management and policies of such Person whether by contract or otherwise.

 

(b)       “Agreement” has the meaning set forth in the Preamble to this Agreement, as amended, restated, amended and restated, supplemented or otherwise modified from time to time.

 

(c)       “Closing” has the meaning set forth in Section 3(a) of this Agreement.

 

(d)       “Closing Date” has the meaning set forth in Section 3(a) of this Agreement.

 

(e)       “Collateral” means any and all property, whether real or personal, tangible or intangible, of whatever kind and wherever located, whether now owned or hereafter acquired or created, in or over which any Lien has been, or is purported to have been, granted to or for the benefit of any Holder, Note Holder and/or the Agent under the Note or any other Note Document including the Collateral Agreements.

 

(f)       “Collateral Agreements” mean each of the (i) Irish Law Debenture, dated as of October 10, 2023 (as amended, restated, amended and restated, supplemented or modified from time to time), by Issuer in favor of Seller (as Administrative Agent) and (ii) the New York Law Guarantee and Collateral Agreement, dated as of October 10, 2023 (as amended, restated, amended and restated, supplemented or modified from time to time), by each Note Party thereto in favor of Seller (as Agent).

 

(g)       “Collections” means all payments and other distributions of cash, securities, notes or other property (including Collateral) received under or in respect of the Transferred Interests.

 

(h)       “Confidential Information” means all information of a confidential or proprietary nature (whether or not specifically labeled or identified as “confidential”), in any form or medium, that relates to the Issuer and its Subsidiaries and their respective Related Parties, the business, operations and condition (financial or otherwise) of the Issuer and its Subsidiaries, the Transferred Interests, the Purchaser and its Related Parties, the negotiation and consummation of the transactions contemplated hereby and in the other documents to be delivered by Seller pursuant to Section 4, or the existence of this Agreement. For the avoidance of doubt, Confidential Information does not include (a) information which is or becomes generally available to the public, other than as a result of a disclosure by Seller or any of its Related Parties in violation of this Agreement or other confidentiality obligation to which any of them is bound or (b) information which becomes available on a non-confidential basis from a source other than the Issuer and its Subsidiaries, the Purchaser, the Successor Agent and each of their respective Related Parties unless such source was known or could reasonably be determined by the Seller or its Related Parties to be under a confidentiality obligation with respect to such information.

 

 

(i)       “Governmental Authority” means any foreign, Federal, state, municipal or other governmental department, agency, institution, authority, regulatory body, court or tribunal, and includes arbitration bodies, whether governmental, private or otherwise.

 

(j)       “Irish Debenture Administrative Agent Replacement Deed” means that certain deed, dated the date hereof, and made between Seller (as Agent) and Successor Agent as successor Administrative Agent.

 

(k)       “Issuer” means MARIADB PLC, an Irish public limited company.

 

(l)       “Judgment” means, in respect of the Note or any other Note Document, any judgment in favor of Seller and enforcing the Issuer’s or any of its Subsidiaries’ obligations under or in respect of such Note or other Note Document.

 

(m)       “Lien” means a pledge, claim, lien, charge, mortgage, encumbrance, or any security interest.

 

(n)       “Note” means that certain Senior Secured Promissory Note in the original principal amount of $26,500,000.00, dated as of October 10, 2023 (as amended, restated, amended and restated, supplemented or otherwise modified from time to time), by and among the Issuer and the Seller.

 

(o)       “Note Documents” means the Note, the Guaranty and Collateral Agreement (as defined in the Note), any other Collateral Agreement, any other pledge agreement, security agreement or any other agreement concerning or relating to the Collateral, any control agreement and any other agreement executed by the Seller or any of its Subsidiaries in connection with, or in relation to, any of the foregoing, including those set forth on Schedule B hereto, in each case, which have been received by Seller and are effective as of the Closing Date. Notwithstanding anything to the contrary, no agreements or documents related to the Seller Related Parties’ ownership of the equity interests of Issuer shall constitute Note Documents.

 

(p)       “Person” means any natural person, corporation, partnership, trust, limited liability company, association, or any other entity, whether acting in an individual, fiduciary or other capacity.

 

(q)       “Proofs of Claim” means, in respect of the Note or any other Note Document, any proof of claim filed by Seller pursuant to any bankruptcy, insolvency or similar laws or statutes (including Title 11 of the United States Code, as amended, supplemented or replaced) in connection with the Note or such other Note Document.

 

(r)       “Purchase Price” has the meaning set forth in the Recitals to this Agreement.

 

(s)       “Purchaser” has the meaning set forth in the Preamble to this Agreement.

 

(t)       “Purchaser Excluded Information” has the meaning set forth in Section 1(a)(v) of Schedule C hereto.

 

 

(u)       “Related Parties” means, with respect to any Person, such Person’s past, present and future, direct or indirect Affiliates (including, for the avoidance of doubt with respect to (i) Purchaser and each fund or investment vehicle controlled by or under common control of Purchaser, and solely on and after the Closing Date, the Issuer and its Subsidiaries, and (ii) Seller and each Runa Entity, each fund or investment vehicle controlled by or under common control of any of them), and the partners, members, shareholders, directors and/or managers, officers, employees, agents, attorneys-in-fact, trustees and advisors of such Person and of such Person’s Affiliates, and each of their respective successors and assigns; provided, that, in no event shall Seller, any Seller Related Party, any Runa Entity or any of its Related Parties be deemed to be a Related Party of the Issuer or any of its Subsidiaries and in no event shall Seller Related Parties include (i) the Issuer or any of its Subsidiaries, Smartfin Management BV, Smartfin Capital NV, Smartfin Capital II Commv, Open Ocean Opportunity Fund I Ky, or Open Ocean Fund Two Ky or (ii) any of their Affiliates, investment or other advisors, employees, officers, directors, managers, agents, counsels or other representatives, except, in each case with respect to this clause (ii), unless such Person is a Runa Entity or a general partner, member, shareholder, director, manager, officer, employee, attorney-in-fact, trustee or advisor of Seller or such Runa Entity.

 

(v)       “Relevant Securities” has the meaning given to that term in the Irish Takeover Panel Act 1997, Takeover Rules 2022.

 

(w)       “Resignation Letters” means resignation letters in the form agreed by the parties, signed by Michael Fanfant and Yakob Zubarev, resigning as directors of the Issuer.

 

(x)       “Seller” has the meaning set forth in the Preamble to this Agreement.

 

(y)       “Seller Related Parties” means with respect to Seller any and all of its past, present or future direct or indirect Affiliates, and their respective partners, members, shareholders, directors and/or managers, officers, employees, agents, attorneys-in-fact, trustees and advisors, and each Runa Entity and any Affiliates, partners, members, shareholders, directors and/or managers, officers, employees, agents, attorneys-in-fact, trustees and advisors of such Runa Entity and each of their respective successors and assigns; provided, that, in no event shall Seller Related Parties include (i) Issuer or any of its Subsidiaries, Smartfin Management BV, Smartfin Capital NV, Smartfin Capital II Commv, Open Ocean Opportunity Fund I Ky, or Open Ocean Fund Two Ky or (ii) any of their Affiliates, investment or other advisors, employees, officers, directors, managers, agents, counsels or other representatives, except, in each case with respect to this clause (ii), unless such Person is a Runa Entity or a general partner, member, shareholder, director, manager, officer, employee, attorney-in-fact, trustee or advisor of Seller or such Runa Entity.

 

(z)       “Seller Excluded Information” has the meaning set forth in Section 1(b)(vi) of Schedule C hereto.

 

(aa)    “Successor Agent” has the meaning set forth in the Preamble to this Agreement.

 

 

(bb)    “Transferred Interests” means any and all of Seller’s obligations, liabilities, right, title, and interest, in, to and under the Note and any other documents or instruments delivered pursuant thereto to the extent related, including any other Note Document, in each case solely in its capacity as Agent, a Holder and/or a Note Holder under the Note Documents, and to the extent permitted to be assigned under applicable law, all claims, suits, causes of action and any other right of the Seller (in its capacity as Agent, a Holder and/or a Note Holder) against any Person (including the Issuer or any of its Subsidiaries or any of their Affiliates but, notwithstanding anything to the contrary, excluding Seller and the Seller Related Parties), whether known or unknown, contingent or absolute, arising under or in connection with the Note, any other documents or instruments delivered pursuant thereto (including any Note Document) or the credit transactions governed thereby or in any way based on or related to any of the foregoing, including contract claims, tort claims, malpractice claims, statutory claims and all other claims at law or in equity related to the rights and obligations sold and assigned referenced above and if applicable, the following: (a) all amounts payable and all Obligations owed to Seller under (or in relation to) the Note or any other Note Documents; (b) the Note and the Note Documents; (c) all Judgments, if any; (d) the Proofs of Claim, if any; (e) all guaranties, rights to Collateral and any security of any kind for or in respect of the foregoing and any proceeds related thereto; and (f) all cash, securities, notes or other property, and all setoffs and recoupments received, applied or effected by or for the account of Seller, in each case, on or after Closing from the Issuer or any of its Subsidiaries, in each case in respect of the Note. Notwithstanding anything to the contrary, the following shall not constitute Transferred Interests, shall be excluded from the definition of “Transferred Interests” and shall be retained by the Seller and Seller Related Parties, as applicable: (i) any equity interests of Issuer owned by Seller or the Seller Related Parties, (ii) any rights of Seller under this Agreement, the Agency Transfer Documents or any other related documents executed in connection herewith and therewith, and (iii) all interest, fees and other expenses paid or reimbursed (including any application of cash collateral to such expenses to the extent disclosed in writing to Purchaser prior to Closing) by the Note Parties to Seller or the Seller Related Parties prior to the Closing.

 

 

SCHEDULE B

 

Note Documents

 

1.

Senior Secured Promissory Note dated October 10, 2023 by Issuer and the other Note Parties party thereto and Seller as Holder and Agent.

 

2.

First Amendment to Senior Secured Promissory Note dated January 10, 2024 by Issuer and the other Note Parties party thereto and Seller as Holder and Agent.

 

3.

Forbearance Agreement dated as of February 5, 2024 by Issuer and the other Note Parties party thereto and Seller as Holder and Agent.

 

4.

Guarantee and Collateral Agreement dated October 10, 2023 by Issuer and the other Note Parties party thereto and Seller as Agent.

 

5.

Patent Security Agreement dated as of October 10, 2023 by MariaDB USA, Inc. in favor of Seller as Agent.

 

6.

Debenture, dated as of October 10, 2023 between Issuer and Seller as Agent.

 

7.

Deposit Account Control Agreement dated as of December 12, 2023 by and among MariaDB USA, Inc., Seller as Agent and Bank of America, N.A.

 

8.

Amended and Restated Deposit Account Control Agreement dated as of February 23, 2024 by and among MariaDB USA, Inc., Seller as Agent and Bank of America, N.A.

 

 

SCHEDULE C

 

Representations and Warranties

 

SECTION 1. Representations and Warranties of Seller and Purchaser.

 

(a)           General Representations of Purchaser. Purchaser (including in its capacity as Successor Agent) hereby represents and warrants to Seller that, as of the date hereof:

 

(i)       Organization and Authority. Purchaser is a Delaware limited liability company duly organized, validly existing and in good standing under the laws of the jurisdiction of its formation. Purchaser has the right and the requisite power and authority to enter into this Agreement and to perform its obligations hereunder, and its representatives executing this Agreement on its behalf are duly authorized to do so. Purchaser has taken all limited liability company action necessary to execute this Agreement and to perform its obligations hereunder, and no other limited liability company action on the part of Purchaser is necessary to authorize the execution and performance of this Agreement by Purchaser.

 

(ii)      Due Execution. None of the execution, delivery and performance of this Agreement by Purchaser or the consummation of the transactions contemplated by this Agreement by Purchaser will: (A) violate or conflict with any provision of the organizational or governing documents of Purchaser or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material agreement or other instrument to which Purchaser is a party, or (B) to Purchaser’s actual knowledge, constitute a violation by Purchaser of any statute, law or regulation that is applicable to Purchaser.

 

(iii)     Binding Agreement. This Agreement, assuming due authorization, execution and delivery by Seller and each Runa Entity, is a legal, valid and binding obligation of Purchaser enforceable against Purchaser in accordance with its terms (except (1) as such enforcement may be limited by bankruptcy, insolvency, reorganization, receivership, moratorium or other laws or equitable principles limiting the rights of creditors generally and (2) as limited by laws relating to the availability of specific performance, injunctive relief or other equitable remedies or by general equity principles).

 

(iv)     Independent Parties. Purchaser (i) is a sophisticated party with respect to the purchase of the Transferred Interests, (ii) has adequate information concerning the business and financial condition of the Issuer and Seller to make an informed decision regarding the purchase of the Transferred Interests and (iii) has independently and without reliance upon Seller or any Seller Related Party (other than, for the avoidance of doubt, the representations and warranties set forth herein), and based on such information as Purchaser has deemed appropriate, made its own analysis and decision to enter into this Agreement. Purchaser acknowledges that none of the Issuer, any of its Related Parties, Seller or any of the Seller Related Parties has given Purchaser any investment advice, credit information or opinion on whether the purchase of the Transferred Interests is prudent. Purchaser acknowledges that the Transferred Interests may have limited or no liquidity and Purchaser shall bear the economic risks of, including a complete loss of its investment in, the Transferred Interests.

 

 

(v)     Purchaser Excluded Information. Purchaser acknowledges that (i) Seller and the Seller Related Parties currently may have, and later may come into possession of, information with respect to the Transferred Interests, Issuer or any of their respective Affiliates that is not known to Purchaser and that may be material to a decision to purchase the Transferred Interests (“Purchaser Excluded Information”), (ii) Purchaser has determined to purchase the Transferred Interests notwithstanding its lack of knowledge of Purchaser Excluded Information and (iii) Seller and the Seller Related Parties shall have no liability to Purchaser or any of its Related Parties with respect to the nondisclosure of Purchaser Excluded Information in connection with the transactions contemplated hereby.

 

(vi)    No Brokers. Except as set forth in any disclosure schedules delivered by Purchaser with this Agreement, Purchaser hereby represents and warrants to Seller as of the date hereof that none of Purchaser or any of its Affiliates has dealt with any broker, investment broker or agent in connection with the purchase of the Transferred Interests and that no commissions, finder’s fees or other such payments are due any broker from the Purchaser or any of its Affiliates by reason of the actions (or alleged actions) of Purchaser or any of its Affiliates. Purchaser hereby indemnifies and agrees to hold Seller and the Seller Related Parties harmless from and against any and all loss, liability, cost or expense (including without limitation, court costs and reasonable attorneys’ fees and expenses) that Seller or any of the Seller Related Parties may suffer or sustain should the representation and warranty in this Section 1(a)(vi) prove inaccurate. The foregoing indemnity shall survive the Closing.

 

(b)           General Representations of Seller. Seller hereby represents and warrants to Purchaser that, as of the date hereof:

 

(i)       Organization and Authority. The Seller is a Delaware limited liability company duly organized, validly existing and in good standing under the laws of the jurisdiction of its formation. Seller has the right and the requisite organizational power and authority to enter into this Agreement and to perform its obligations hereunder, and its representatives executing this Agreement on its behalf are duly authorized to do so. Seller has taken all limited liability company action necessary to execute this Agreement and to perform its obligations hereunder, and no other limited liability company action on the part of Seller is necessary to authorize the execution and performance of this Agreement by Seller.

 

(ii)      Due Execution. None of the execution, delivery and performance of this Agreement by Seller or the consummation of the transactions contemplated by this Agreement by Seller will: (A) violate or conflict with any provision of the organizational or governing documents of Seller or constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, or result in the breach of, any material agreement or other instrument to which Seller is a party, (B) violate any judgment, order, injunction, decree or award of any court or arbitrator, or, to Seller’s actual knowledge, any order, regulation or demand of any Governmental Authority, in each case, which violation, in Seller’s good faith and reasonable judgment, is likely to materially and adversely affect the ability of Seller to perform or delay the performance of its obligations under this Agreement or (C) to Seller’s actual knowledge, constitute a violation by Seller of any statute, law or regulation that is applicable to Seller.

 

 

(iii)     No Relevant Securities. Neither Seller nor any Seller Related Party is a shareholder or intending shareholder of the Issuer, or of any Person interested in Relevant Securities of the Issuer, except as set forth in the Schedule 13D/A of the Runa Entities as filed with the Securities and Exchange Commission on or about April 1, 2024 (the “13D/A”). Other than that certain Term Sheet for Convertible Preferred Shares Financing, executed February 5, 2024, by and between the Issuer, Seller and Hale Capital Partners (the “Hale Term Sheet”) or as disclosed on the 13D/A, neither Seller nor any Seller Related Party has entered into any commitment letter, subscription agreement or term sheet in respect of the issuance or potential issuance of any equity securities by the Issuer or any of its Subsidiaries that has not expired or been terminated as of immediately prior to Closing.

 

(iv)     Binding Agreement. This Agreement, assuming due authorization, execution and delivery by Purchaser, is a legal, valid and binding obligation of Seller enforceable against Seller in accordance with its terms (except (1) as such enforcement may be limited by bankruptcy, insolvency, reorganization, receivership, moratorium or other laws or equitable principles limiting the rights of creditors generally and (2) as limited by laws relating to the availability of specific performance, injunctive relief or other equitable remedies or by general equity principles).

 

(v)      Independent Parties. Seller (i) is a sophisticated party with respect to the sale of the Transferred Interests, (ii) has adequate information concerning the business and financial condition of the Issuer and Purchaser to make an informed decision regarding the sale of the Transferred Interests and (iii) has independently and without reliance upon Purchaser or any of its Related Parties (other than, for the avoidance of doubt, the representations and warranties set forth herein), and based on such information as Seller has deemed appropriate, made its own analysis and decision to enter into this Agreement. Seller acknowledges that none of the Issuer, Purchaser nor any of their respective Related Parties has given Seller any investment advice, credit information or opinion on whether the sale of the Transferred Interests is prudent.

 

(vi)    Seller Excluded Information. Seller acknowledges that (i) Purchaser and its Related Parties currently may have, and later may come into possession of, information with respect to the Transferred Interests, Issuer or any of their respective Affiliates that is not known to Seller and that may be material to a decision to sell the Transferred Interests (“Seller Excluded Information”), (ii) Seller has determined to sell the Transferred Interests notwithstanding its lack of knowledge of Seller Excluded Information and (iii) Purchaser and its Related Parties shall have no liability to Seller or any Seller Related Parties with respect to the nondisclosure of Seller Excluded Information in connection with the transactions contemplated hereby.

 

 

(vii)   Solvency. Seller has not (A) made a general assignment for the benefit of creditors, (B) filed any voluntary petition in bankruptcy or suffered the filing of any involuntary petition by Seller’s creditors, (C) suffered the appointment of a receiver to take possession of all, or substantially all, of Seller’s assets or (D) suffered the attachment or other judicial seizure of all, or substantially all, of Seller’s assets. The sale of the Transferred Interests is not intended by Seller to hinder, delay or defraud any of its creditors.

 

(viii)  Relationships. Except for any contract or agreement that has been delivered to Purchaser or made available to Purchaser or its representatives in the MariaDB SharePoint Dataroom, is set forth in the Articles of Association of the Issuer or is disclosed in Issuer’s Annual Report on Form 10-K for the year ended June 30, 2023 or the 13D/A, (a) no Covered Person is a party to or otherwise covered by or entitled to enforce (including as a third party beneficiary) any agreement with the Issuer or any of its Subsidiaries providing for indemnification, advancement of expenses or exculpation from liability in connection with such Covered Person’s role as a director or officer of the Issuer or any of its Subsidiaries, or otherwise and (b) neither Seller nor any Seller Related Party, nor any Runa Entity nor any Related Party of any Runa Entity, is party to any contract or agreement with the Issuer or any of its Subsidiaries.

 

(c)           Representations of Seller With Respect to the Note. Seller hereby represents and warrants to Purchaser that as of the date hereof:

 

(i)       Seller is the sole holder of the Note and the Note Documents, owning 100% of the Obligations owed under such agreements. The Seller’s right, title, and interest in, to and under the Note and the Note Documents is free and clear of any Liens. Other than the Transferred Interests being transferred by this Agreement, the Seller does not and nor do any of its Seller Related Parties own or have, nor have they entered into, any other debt instrument, debt agreement, debt arrangement with or debt security of the Issuer or any of its Subsidiaries (including any commitment letter, subscription agreement or term sheet in respect of the issuance or potential issuance of any debt securities by the Issuer or any of its Subsidiaries that has not expired or been terminated as of immediately prior to Closing).

 

(ii)      The current amounts of advanced and unpaid principal owing by the Issuer on the Note as of the date hereof are as set forth on Exhibit A to this Agreement. All accrued and unpaid interest (including any default interest) and any other reimbursable fees and expenses on the Note as of the date hereof is set forth on Exhibit A.

 

(iii)    Seller has not transferred, assigned, or hypothecated, and there is no presently effective agreement to transfer, assign or hypothecate, all or any part of Seller’s interest in the Transferred Interests other than this Agreement.

 

 

(iv)    Schedule B to this Agreement constitutes a true, correct and complete list, as of the date hereof, of all material Note Documents and other material documents evidencing or relating to the Transferred Interests (the “Material Note Documents”). As of the date hereof, Seller has made available to Purchaser a true, correct and complete copy of each document listed on Schedule B. Except as disclosed on Schedule B, as of the date hereof, the Seller has not entered into, and does not otherwise have knowledge of, any side letters or other agreements, contracts or arrangements relating to the Note or any other Note Document except as set forth in the 13D/A.

 

(v)     Since the date that Seller purchased the Note and except for any applicable documents listed on Schedule B to this Agreement, Seller has not modified or amended any of the Material Note Documents and there are otherwise no material modifications or amendments thereto, except as set forth on Schedule B to this Agreement.

 

(vi)    Other than Issuer and its representatives acting on Issuer’s behalf, Seller has not received any written notice (excluding for clarity any statements published or otherwise disseminated to the general public) challenging the enforceability of the Note or alleging any defenses or offsets thereto.

 

(vii)   No litigation is pending, or to Seller’s actual knowledge, has been threatened in writing (other than by Issuer and its representatives acting on Issuer’s behalf), against Seller by the Issuer, any of its Subsidiaries or any of their Affiliates relating to the Note.

 

(viii)  As of the date hereof, the Seller is not in breach of any term of the Note or any other Note Document in any material respect, and no event has occurred which, with notice or lapse of time, or both, would constitute such a breach.

 

(ix)     Except for the Hale Term Sheet or as disclosed in the 13D/A, neither Seller nor any Seller Related Party has entered into any agreement, term sheet or other document, or has any other arrangement or understanding, written or oral, and in each case, whether binding in whole, in part or wholly non-binding, with Hale Capital Partners or any Related Party thereof, or any other third party, in relation to the Note or the replacement or amendment thereof requiring payment by Issuer, Seller or any of their respective Related Parties or otherwise pursuant to which Issuer or any of its Subsidiaries has any liability or obligation, contingent or otherwise. To the Seller’s actual knowledge, no more than $40,000 is or may become due and payable by the Issuer or any of its Subsidiaries after the date hereof to Hale Capital Partners in connection with the Hale Term Sheet. Seller has (1) irrevocably waived all of its rights under the Hale Term Sheet, or (2) the Hale Term Sheet has otherwise been terminated with respect to all of Seller’s rights thereunder. Neither the Issuer nor any of its Subsidiaries owe Seller or any Seller Related Party any amount (whether contingent or otherwise) pursuant to the Hale Term Sheet.

 

 

SECTION 2. No Brokers. Seller hereby represents and warrants to Purchaser as of the date hereof that none of Seller or any of its Affiliates has dealt with any broker, investment broker or agent in connection with the sale of the Transferred Interests and that no commissions, finder’s fees or other such payments are due any broker from the Seller or any of its Affiliates by reason of the actions (or alleged actions) of Seller or any of its Affiliates. Seller hereby indemnifies and agrees to hold Purchaser and its Related Parties harmless from and against any and all loss, liability, cost or expense (including without limitation, court costs and reasonable attorneys’ fees and expenses) that Purchaser or any of its Related Parties may suffer or sustain should the representation and warranty in this Section 2 prove inaccurate. The foregoing indemnity shall survive the Closing.

 

 

EXHIBIT A

 

Note Amounts

 

Note	Advanced and Unpaid Principal as of the date hereof	Accrued and Unpaid Interest, as of the date hereof	Accrued and Unpaid Reimbursable Fees and Expenses, as of the date hereof
Senior Secured Promissory Note dated October 10, 2023 by Issuer and the other Note Parties party thereto and Seller as Holder and Agent.	$26,500,000.00	$970,194.44	$3,500,000

 

 

EXHIBIT B

 

FORM OF TERMINATION AGREEMENT (WIDENIUS)

 

[*]

 

 

EXHIBIT C

 

WIRE INSTRUCTIONS

 

[*]

 

 

Exhibit (d)(3)

 

DEED OF IRREVOCABLE UNDERTAKING

 

To:

K1 Investment Management, LLC,

K5 Private Investors L.P.,

Meridian Topco LLC. and

Meridian Bidco LLC

875 Manhattan Beach Blvd.

Manhattan Beach, CA 90266

United States of America

 

 

__________________ 2024

 

Dear Sirs

 

PROPOSED ACQUISITION OF MARIADB PLC BY K1 INVESTMENT MANAGEMENT, LLC

 

I refer to the proposed acquisition of MariaDB plc (the Company) by K1 Investment Management, LLC (K1).

 

Under the proposed transaction, Meridian Bidco LLC (BidCo), a wholly owned Affiliate of K1, proposes to acquire the entire issued and to be issued share capital of the Company pursuant to the Takeover Offer or Scheme, substantially on the terms and subject to the conditions set out in the draft Rule 2.7 Announcement a copy of which is attached at Schedule 2 hereto (save for any amendments approved by or on behalf of K1), which terms may be revised on no less favourable terms pursuant to a revised Rule 2.7 Announcement published after the date of this Undertaking (the Proposed Transaction).

 

I understand that the Proposed Transaction is currently expected to be implemented by way of the Takeover Offer and that it is proposed that the terms of the Takeover Offer will be contained in an offer document addressed, inter alia, to the shareholders of the Company that would be an offer document for the purpose of the Rules and the Act (the Offer Document).

 

This Undertaking sets out the terms and conditions on which I will accept (or procure acceptance) in favour of the Proposed Transaction and the Takeover Offer or, if applicable, vote (or procure a vote) in favour of the Scheme, in respect of the Subject Shares.

 

Capitalised terms used in this Undertaking shall have the meaning given to such terms in paragraph 13 below unless otherwise defined.

 

1.

Shareholdings

 

I hereby irrevocably and unconditionally represent and warrant to you that:

 

1.1

set out in part 1 of Schedule 1 are true, complete and accurate details of the ordinary shares of $0.01 each in the share capital of the Company of which I am the registered and/or beneficial owner or am otherwise authorised to control the exercise of all rights attaching to such shares and I confirm that such shares are owned free of any encumbrances or third party rights of any kind (the Company Shares);

 

1.2

I have all necessary power and authority to direct the actions of any nominee or custodian who holds legal title to the Subject Shares on my behalf (the Nominee) to enable me to comply with the Obligations;

 

1.3

set out in part 2 of Schedule 1 are true, complete and accurate details of all options, warrants or other rights to subscribe for, purchase, convert into, exchange or exercise for or otherwise acquire or call for delivery of any shares of the Company, including, without limitation, any company options, (together with any further such options, warrants and other such rights which I, or the Nominee, may become entitled to and/or receive at any time after the date of this Undertaking (the Convertible Securities);

 

 

1.4

other than as set out in Schedule 1 and save for any rights provided for in the articles of association of the Company and/or pursuant to company law in favour of the holders of the Company shares generally, I do not have any interest (as defined in the Rules) in any shares of the Company or any direct or indirect right to subscribe for, purchase, convert into, exchange or exercise for or otherwise acquire or call for delivery of any such shares; and

 

1.5

I have full power and authority, and the right (free from any legal or other restrictions), and will at all times continue to have all relevant power and authority and the right, to enter into and perform the Obligations.

 

2.

Dealings and undertakings

 

2.1

I hereby unconditionally and irrevocably agree and undertake to you that (other than in connection with the Proposed Transaction) before this Undertaking lapses in accordance with paragraph 9, I shall not and shall procure that the Nominee shall not, directly or indirectly:

 

2.1.1

sell, transfer, assign, tender in any tender or exchange offer, dispose of, charge, pledge or otherwise encumber or grant any option or award or other right over or otherwise deal with any of the Subject Shares or any interest in any of them (whether conditionally or unconditionally), except pursuant to the Takeover Offer or the Scheme (as applicable);

 

2.1.2

vote in favour of any resolution to approve, or otherwise in connection with (i) an acquisition of any shares in the Company by any person other than BidCo (or any member of the K1 Group), or (ii) any other transaction which is proposed by any person other than BidCo (or any member of the K1 Group) which relates to the shares of the Company or which could otherwise hinder or impede the Takeover Offer or Scheme (as applicable);

 

2.1.3

withdraw the acceptance(s) in favour of the Takeover Offer (or the vote(s) in favour of the Scheme referred to in paragraph 7) in respect of all or any of the Subject Shares notwithstanding that I may have become entitled to effect such withdrawal by virtue of the Rules or otherwise by the terms of the Proposed Transaction or applicable law, and shall procure that any acceptance in favour of the Takeover Offer (or any vote in the case of a Scheme) in respect of the Subject Shares is not withdrawn;

 

2.1.4

deposit any Subject Shares into a voting trust or enter into a voting agreement or arrangement or grant any proxy or power of attorney with respect thereto that is inconsistent with this Undertaking;

 

2.1.5

without the consent of the K1 Group, take any step, including voting the Subject Shares, requisitioning, or joining in requisitioning of, any general or class meeting of the Company, or taking any other action, that would or might reasonably be expected to restrict or impede the Takeover Offer becoming unconditional or, as the case may be, the Scheme becoming effective;

 

2.1.6

accept or give any undertaking to accept any offer made or proposed to be made in respect of any shares in the Company (by whatever means the same is to be implemented) by any person other than BidCo (or any member of the K1 Group); or

 

2.1.7

enter into any agreement or arrangement (whether or not legally binding) with any person, whether conditionally or unconditionally, or give any public indication of intent which is in any way inconsistent with this paragraph 2.1 or which would or might reasonably be expected to restrict the acquisition of the Subject Shares by BidCo (or any member of the K1 Group) under the Proposed Transaction.

 

2.2

I further undertake to you that I shall not, until this Undertaking lapses in accordance with paragraph 9, acquire any interests (as defined in the Rules) or otherwise deal or undertake any dealing (also as defined in the Rules) in any Relevant Securities of the Company (including, for the avoidance of doubt, the exercising, exchange or conversion of any Convertible Securities), except pursuant to the Takeover Offer or the Scheme (as applicable).

 

 

3.

Undertaking to accept the Takeover Offer

 

3.1

I hereby irrevocably and unconditionally agree and undertake to you that I shall, or shall procure that the Nominee shall, no later than 5.00 p.m. (New York Time) on the date which is five days after the posting of the Offer Document to the Company’s shareholders, accept (or procure the acceptance of) the Takeover Offer in respect of the Subject Shares by:

 

3.1.1

completing or procuring the completion and delivery to you or your agent of the form(s) of acceptance of the Takeover Offer; or

 

3.1.2

taking such other steps (or procuring the taking of such other steps) as may be set out in the Offer Document, insofar as such steps are reasonably required, to effect acceptance of the Takeover Offer (in each case in accordance with the terms of the Offer Document); or

 

3.1.3

if so required by you, execute or procure the execution of all such other documents as may be reasonably necessary to give you the full benefit of this Undertaking,

 

(the Acceptance).

 

4.

Election

 

(If making an election when returning this Undertaking, recipient to include either paragraph 4.1(a) or (b) (as appropriate) and delete paragraph 4.2. If recipient intends to reserve its right to elect until formally accepting the Offer, please include paragraph 4.2 and delete paragraph 4.1))

 

4.1

[I hereby irrevocably and unconditionally agree and undertake to you that I shall, or shall procure that the Nominee shall, by way of the Acceptance:

 

4.1.1

elect in respect of the Subject Shares:

 

(a)

[the Cash Offer];

 

OR

 

(b)

[the Unlisted Unit Alternative (as defined in the Rule 2.7 Announcement),]

 

4.1.2

not withdraw, revoke or vary such election without the prior written consent of BidCo and/or the K1 Group.]

 

4.2

[This Undertaking does not constitute an election for either the Cash Offer or the Unlisted Unit Alternative (as defined in the Rule 2.7 Announcement) and I reserve the right to make, in due course and by way of the Acceptance, an election for the Cash Offer or for the Unlisted Unit Alternative in respect of the Subject Shares.]

 

5.

Documentation

 

5.1

I consent to:

 

5.1.1

this Undertaking being disclosed to the Panel;

 

5.1.2

the inclusion of references to me and particulars of this Undertaking and my holdings of relevant securities of the Company being included in the Rule 2.7 Announcement, and any Offer Document, and any other announcement made, or document issued, by or on behalf of the Company and/or the K1 Group in connection with the Proposed Transaction; and

 

5.1.3

this Undertaking being available for inspection as required by the Rules.

 

 

5.2

I shall promptly give you all such information with respect to my holding of Subject Shares and any assistance as you may reasonably require for the preparation of the Rule 2.7 Announcement, any Offer Document and any other announcement to be made, or document to be issued, by or on behalf of BidCo, the K1 Group or the Company in connection with the Proposed Transaction in order to comply with the requirements of the Rules, the Panel, or any other applicable legal or regulatory requirement and I shall notify you promptly if any such information changes.

 

6.

Confidentiality

 

I shall keep the possibility, terms and conditions of the Proposed Transaction and the existence of this Undertaking confidential until the Rule 2.7 Announcement is released, provided that I may disclose the same to the Company and its advisers in which case I shall procure that they observe confidentiality in the same terms. The Obligations in this paragraph 6 shall survive termination or lapse of this Undertaking.

 

7.

Implementation by way of Scheme

 

7.1

I acknowledge that BidCo and/or the K1 Group shall have the right and may elect at any time (with the consent of the Panel (if required) and whether or not the Offer Document has then been despatched) to implement the Proposed Transaction by way of a scheme of arrangement under Chapter 1 of Part 9 of the Act (a Scheme), as opposed to by way of the Takeover Offer.

 

7.2

If BidCo and/or the K1 Group was to implement the Proposed Transaction by way of a Scheme, I undertake and warrant that, notwithstanding any other provision of this Undertaking, any undertakings, agreements, warranties, appointments, consents and waivers in this Undertaking shall apply mutatis mutandis to such Scheme and, in particular, I hereby irrevocably and unconditionally agree and undertake to you that I shall, or shall procure that the Nominee shall:

 

7.2.1

exercise, or (as appropriate) procure the exercise of, all voting rights attaching to the Subject Shares to vote in favour of all resolutions (including a Relevant Resolution) to approve the Proposed Transaction, the Scheme and any related matters proposed at any general or class meeting or postponed meeting of the Company in connection with the Scheme (the EGM) and any meeting or class meeting or postponed meeting of the Company convened pursuant to section 450 of the Act to approve the Scheme (a Scheme Meeting) or at any postponement of any such meeting and to vote against any adjournment of the EGM or Scheme Meeting (all such resolutions collectively, the Scheme Resolutions);

 

7.2.2

execute, or (as appropriate) procure the execution of, any forms of proxy in respect of the Subject Shares required by BidCo and/or the K1 Group validly appointing any person nominated by BidCo and/or the K1 Group to attend and vote at any EGM and/or Scheme Meeting (or any adjournment or postponement thereof) in favour of the Scheme Resolutions, and shall ensure that any such executed forms of proxy are received by the Company’s registrars not later than 5:00 p.m. (New York Time) on the tenth Business Day after the Company sends the Scheme Document to the Company’s shareholders (or, in respect of any Further Company Shares, within five days of acquiring an interest in such shares, if later);

 

7.2.3

not revoke (or seek to cause the revocation of) the terms of any proxy submitted in accordance with paragraph 7.2, either in writing or by attendance at any EGM or Scheme Meeting (or any adjournment or postponement thereof) or otherwise; and

 

7.2.4

not exercise any voting rights attaching to the Subject Shares to vote in favour of any competing scheme of arrangement or any action which may frustrate the implementation of the Proposed Transaction.

 

 

7.3

A Relevant Resolution means:

 

7.3.1

any Scheme Resolution;

 

7.3.2

any other resolution (whether or not amended) proposed at a general or class meeting of the Company, or at an adjourned meeting, the passing of which is necessary to implement the Scheme; and

 

7.3.3

a resolution to adjourn a general or class meeting of the Company whose business includes the consideration of any Scheme Resolution and which is recommended by the board of directors of the Company.

 

7.4

References in this Undertaking to:

 

7.4.1

the Takeover Offer becoming or being declared unconditional shall be read as references to the Scheme becoming effective;

 

7.4.2

the Takeover Offer lapsing or withdrawn shall be read as references to the Scheme lapsing or being withdrawn;

 

7.4.3

the Offer Document shall be read as references to the Scheme Document; and

 

7.4.4

the Takeover Offer shall be read as references to the Scheme.

 

8.

Time of the essence

 

Any time, date or period mentioned in this Undertaking may be extended by mutual agreement but as regards to any time, date or period originally fixed or as extended, time shall be of the essence.

 

9.

Lapse of undertaking

 

9.1

Notwithstanding any other provision of this Undertaking, this Undertaking (and all of my Obligations) shall lapse and cease to have any effect on and from the earliest of the following occurrences:

 

9.1.1

the Rule 2.7 Announcement is not released by 5.00 p.m. (New York Time) on 22 April 2024 (or such later time as the Panel may permit in accordance with Rule 2.6 of the Rules);

 

9.1.2

BidCo and/or the K1 Group publicly announces that it does not intend to make or proceed with the Proposed Transaction and no new, revised or replacement offer or scheme is announced in accordance with Rule 2.7 of the Rules, either at the same time or within two days of such announcement;

 

9.1.3

the Takeover Offer lapses, closes or is withdrawn (which, for the avoidance of doubt, will not be deemed to have occurred only by reason of BidCo and/or the K1 Group electing to switch from the Takeover Offer to a Scheme in accordance with paragraph 7); and

 

9.1.4

the Takeover Offer becomes or is declared unconditional in all respects or the Scheme becomes effective.

 

9.2

For the avoidance of doubt and subject to paragraphs 9.1.2 – 9.1.4, this Undertaking shall continue in full force and effect in circumstances where BidCo and/or the K1 Group publicly announces a revised Rule 2.7 Announcement at any time after the date of this Undertaking, on terms no less favourable to those contained in the Rule 2.7 Announcement published on or around the date of this Undertaking, and any such revision shall not cause the Undertaking to lapse.

 

10.

Governing law

 

This Undertaking and any suit, action or proceedings that may arise out of or in connection with it shall be governed by and construed in accordance with the laws of Ireland and I agree that the courts of Ireland are to have exclusive jurisdiction to hear and determine any suit, action or proceedings that may arise out of or in connection with this Undertaking and, for such purposes, I irrevocably submit to the jurisdiction of such courts.

 

 

11.

Specific performance

 

Without prejudice to any other rights or remedies which you may have, I acknowledge and agree that damages may not be an adequate remedy for any breach by me of any of the Obligations and BidCo and/or the K1 Group shall be entitled to the remedies of injunction, specific performance and other equitable relief for any threatened or actual breach of any of the Obligations and no proof of special damages shall be necessary for the enforcement by you of your rights.

 

12.

Severability

 

The covenants and undertakings contained in this Agreement and each part of them are entirely severable and separately enforceable so that each covenant and undertaking and each part of them shall be deemed to be a separate covenant and undertaking.

 

13.

Interpretation

 

13.1

In this Undertaking, the following words and expressions shall have the meaning set opposite them:

 

Act means the Companies Act 2014, all enactments which are to be read as one with, or construed or read together with the Companies Act 2014 and every statutory modification and re-enactment thereof for the time being in force;

 

Affiliate of any Person means (a) any other Person which, directly or indirectly, controls or is controlled by or is under common control with such Person and (b) any officer or director of such Person. A Person shall be deemed to be “controlled by” any other Person if such Person possesses, directly or indirectly, power to vote 10% or more of the securities (on a fully diluted basis) having ordinary voting power for the election of directors or managers or power to direct or cause the direction of the management and policies of such Person whether by contract or otherwise;

 

Applicable Requirements means the requirements of the Act, the Rules and the requirements of any other applicable law or regulation or the requirements of any court or governmental or regulatory authority;

 

Business Day means any day, other than a Saturday, Sunday or public holiday in Dublin, Ireland;

 

Cash Offer means $0.55 in respect of each Company Share;

 

Further Company Shares means (i) any further shares in the share capital of the Company in respect of which I acquire an interest and in respect of which I am entitled to exercise, or direct the manner of exercise of, the voting of such shares and (ii) any other shares in the share capital of the Company that are attributable to or derived from any such further shares mentioned in limb (i) of this definition;

 

Interest and interested have the meanings given to those terms in the Rules;

 

K1 Group, means K1, K5, Meridian Topco LLC, BidCo and each of their respective Affiliates;

 

K5 means K5 Private Investors, L.P., a limited partnership organised and existing under the laws of Delaware with a registered address at 1209 Orange Street, Wilmington, Delaware 19801;

 

Obligations means my undertakings, agreements, warranties, appointments, consents and waivers set out in this Undertaking;

 

Panel means the Irish Takeover Panel;

 

Person means any natural person, corporation, partnership, trust, limited liability company, association, governmental authority or unit, or any other entity, whether acting in an individual, fiduciary or other capacity;

 

Relevant Securities has the meaning given to that term in the Rules;

 

 

Rules means The Irish Takeover Panel Act 1997, Takeover Rules 2022;

 

Rule 2.7 Announcement means the relevant Rule 2.7 Announcement in respect of the Proposed Transaction which sets out the terms and conditions upon which BidCo proposes to acquire the entire issued and to be issued share capital of the Company pursuant to the Takeover Offer or Scheme;

 

Subject Shares means Company Shares, Convertible Securities or Further Company Shares;

 

Takeover Offer means the proposed acquisition of the Company by BidCo pursuant to an “offer”, as that term is defined under the Rules; and

 

Undertaking means this deed of irrevocable undertaking.

 

13.2

Unless otherwise defined, capitalised terms shall have the meaning given to them by the Rules.

 

14.

Power of Attorney

 

14.1

In order to secure the performance of the Obligations, for so long as this Undertaking has not lapsed in accordance with paragraph 9, I hereby irrevocably appoint individually or collectively each and every one of the investment committee of K1 (each, an Attorney) to be my attorney in my name and on my behalf to execute any form or forms of acceptance and/or such other documents and do such other acts or things (if any) as may be reasonably necessary to accept and/or vote in favour of the Takeover Offer or Scheme (as applicable) and/or to otherwise satisfy the Obligations in respect of my Subject Shares.

 

14.2

The power of attorney granted under this paragraph 14 shall at any time take effect as if it had individually named the persons who are at that time on the investment committee of K1.

 

14.3

Any action authorised under this power of attorney may be taken by any Attorney acting alone.

 

14.4

I hereby irrevocably undertake to ratify any such act committed in exercise of this power, if called upon to do so. I also acknowledge that this power of attorney is irrevocable until this Undertaking lapses in accordance with its terms.

 

15.

Acknowledgments and undertaking

 

15.1

I hereby accept and acknowledge that, subject to paragraph 9, the Obligations assumed pursuant to this Undertaking are irrevocable.

 

15.2

I hereby accept and acknowledge that I have not entered into this Undertaking relying on any statement or representation, whether or not made by any member of the K1 Group (or any of their respective directors, officers, employees or agents) or any other person and that nothing in this Undertaking obliges any member of the K1 Group to announce or proceed with the Takeover Offer or despatch the Offer Document in the event that it is not required to do so by the Rules.

 

15.3

I undertake to give such directions to the Nominee to take such acts and do such things as are necessary to give each member of the K1 Group the full benefit of this Undertaking. References in this Undertaking to Obligations on my part shall be construed to include obligations, wherever relevant, to procure that equivalent actions be taken by the Nominee.

 

15.4

The obligations and provisions set out in this Undertaking apply equally to the persons, if any, from whom I am to procure acceptance of the Takeover Offer pursuant to the terms of paragraph 3 above or votes in favour of the resolutions to implement the Scheme pursuant to paragraph 7 above (as the case may be) in respect of the Subject Shares held by those individuals (or, in the case of paragraph 2.2, any Relevant Securities in which I will acquire an interest), and I shall procure the observance by such persons of the terms hereof as if they were each specifically a party hereto.

 

 

Schedule 1

 

Part 1 - Company Share Details

 

Class	Number	Registered Holder	Ultimate Beneficial Owner
Ordinary	[  ●  ]	[  ●  ]	[  ●  ]

 

Part 2 - Convertible Share Details

 

Date of grant	Number of shares under option/ award	Exercise Period	Exercise price
[  ●  ]	[  ●  ]	[  ●  ]	[  ●  ]

 

 

Schedule 2

 

Draft Rule 2.7 Announcement

 

 

In witness whereof this Deed has been duly executed and delivered as a deed poll on the date shown at the beginning of this document

 

EXECUTED AND DELIVERED as a deed By [ ● ]
		Signature
Witness to Signature of [  ●  ]
Witness
Print Name of Witness
Print Address of Witness
Occupation of Witness

 

---

 Exhibit (d)(4)

 

DEED OF IRREVOCABLE UNDERTAKING

 

To:

K1 Investment Management, LLC,

K5 Private Investors L.P.,

Meridian Topco LLC. and

Meridian Bidco LLC

875 Manhattan Beach Blvd.

Manhattan Beach, CA 90266

United States of America

 

2024

 

Dear Sirs

 

PROPOSED ACQUISITION OF MARIADB PLC BY K1 INVESTMENT MANAGEMENT, LLC

 

I refer to the Rule 2.7 announcement published by K1 Investment Management, LLC (K1) on 24 April 2024 in relation to the proposed acquisition of MariaDB plc (the Company).

 

Under the proposed transaction, Meridian Bidco LLC (BidCo), a wholly owned Affiliate of K1, proposes to acquire the entire issued and to be issued share capital of the Company pursuant to the Takeover Offer or Scheme, substantially on the terms and subject to the conditions set out in the Rule 2.7 Announcement published on 24 April 2024, a copy of which is attached at Schedule 2 hereto, which terms may be revised on no less favourable terms (including as to price) pursuant to a revised Rule 2.7 Announcement or Offer published after the date of the Rule 2.7 Announcement (the Proposed Transaction).

 

I understand that the Proposed Transaction is currently expected to be implemented by way of the Takeover Offer and that it is proposed that the terms of the Takeover Offer will be contained in an offer document addressed, inter alia, to the shareholders of the Company that would be an offer document for the purpose of the Rules and the Act (the Offer Document).

 

This Undertaking sets out the terms and conditions on which I will accept (or procure acceptance) in favour of the Proposed Transaction and the Takeover Offer or, if applicable, vote (or procure a vote) in favour of the Scheme, in respect of the Subject Shares.

 

Capitalised terms used in this Undertaking shall have the meaning given to such terms in paragraph 12 below unless otherwise defined.

 

1.

Shareholdings

 

I hereby irrevocably and unconditionally represent and warrant to you that:

 

1.1

set out in part 1 of Schedule 1 are true, complete and accurate details of the ordinary shares of $0.01 each in the share capital of the Company of which I am the registered and/or beneficial owner or am otherwise authorised to control the exercise of all rights attaching to such shares and I confirm that such shares are owned free of any encumbrances or third party rights of any kind (the Company Shares);

 

1.2

I have all necessary power and authority to direct the actions of any nominee or custodian who holds legal title to the Subject Shares on my behalf (the Nominee) to enable me to comply with the Obligations;

 

1.3

set out in part 2 of Schedule 1 are true, complete and accurate details of all options, warrants or other rights to subscribe for, purchase, convert into, exchange or exercise for or otherwise acquire or call for delivery of any shares of the Company, including, without limitation, any company options, (together with any further such options, warrants and other such rights which I, or the Nominee, may become entitled to and/or receive at any time after the date of this Undertaking (the Convertible Securities);

1.4

other than as set out in Schedule 1 and save for any rights provided for in the articles of association of the Company and/or pursuant to company law in favour of the holders of the Company shares generally, I do not have any interest (as defined in the Rules) in any shares of the Company or any direct or indirect right to subscribe for, purchase, convert into, exchange or exercise for or otherwise acquire or call for delivery of any such shares; and

 

1.5

I have full power and authority, and the right (free from any legal or other restrictions), and will at all times continue to have all relevant power and authority and the right, to enter into and perform the Obligations.

 

2.

Dealings and undertakings

 

2.1

I hereby unconditionally and irrevocably agree and undertake to you that (other than in connection with the Proposed Transaction) before this Undertaking lapses in accordance with paragraph 9, I shall not and shall procure that the Nominee shall not, directly or indirectly:

 

2.1.1

sell, transfer, assign, tender in any tender or exchange offer, dispose of, charge, pledge or otherwise encumber or grant any option or award or other right over or otherwise deal with any of the Subject Shares or any interest in any of them (whether conditionally or unconditionally), except pursuant to the Takeover Offer or the Scheme (as applicable);

 

2.1.2

vote in favour of any resolution to approve, or otherwise in connection with (i) an acquisition of any shares in the Company by any person other than BidCo (or any member of the K1 Group), or (ii) any other transaction which is proposed by any person other than BidCo (or any member of the K1 Group) which relates to the shares of the Company or which could otherwise hinder or impede the Takeover Offer or Scheme (as applicable);

 

2.1.3

withdraw the acceptance(s) in favour of the Takeover Offer (or the vote(s) in favour of the Scheme referred to in paragraph 7) in respect of all or any of the Subject Shares notwithstanding that I may have become entitled to effect such withdrawal by virtue of the Rules or otherwise by the terms of the Proposed Transaction or applicable law, and shall procure that any acceptance in favour of the Takeover Offer (or any vote in the case of a Scheme) in respect of the Subject Shares is not withdrawn;

 

2.1.4

deposit any Subject Shares into a voting trust or enter into a voting agreement or arrangement or grant any proxy or power of attorney with respect thereto that is inconsistent with this Undertaking;

 

2.1.5

without the consent of the K1 Group, take any step, including voting the Subject Shares, requisitioning, or joining in requisitioning of, any general or class meeting of the Company, or taking any other action, that would or might reasonably be expected to restrict or impede the Takeover Offer becoming unconditional or, as the case may be, the Scheme becoming effective;

 

2.1.6

accept or give any undertaking to accept any offer made or proposed to be made in respect of any shares in the Company (by whatever means the same is to be implemented) by any person other than BidCo (or any member of the K1 Group); or

 

2.1.7

enter into any agreement or arrangement (whether or not legally binding) with any person, whether conditionally or unconditionally, or give any public indication of intent which is in any way inconsistent with this paragraph 2.1 or which would or might reasonably be expected to restrict the acquisition of the Subject Shares by BidCo (or any member of the K1 Group) under the Proposed Transaction.

 

2.2

I further undertake to you that I shall not, until this Undertaking lapses in accordance with paragraph 9, acquire any interests (as defined in the Rules) or otherwise deal or undertake any dealing (also as defined in the Rules) in any Relevant Securities of the Company (including, for the avoidance of doubt, the exercising, exchange or conversion of any Convertible Securities), except pursuant to the Takeover Offer or the Scheme (as applicable).

3.

Undertaking to accept the Takeover Offer

 

3.1

I hereby irrevocably and unconditionally agree and undertake to you that I shall, or shall procure that the Nominee shall, no later than 5.00 p.m. (New York Time) on the date which is five days after the posting of the Offer Document to the Company’s shareholders, accept (or procure the acceptance of) the Takeover Offer in respect of the Subject Shares by:

 

3.1.1

completing or procuring the completion and delivery to you or your agent of the form(s) of acceptance of the Takeover Offer; or

 

3.1.2

taking such other steps (or procuring the taking of such other steps) as may be set out in the Offer Document, insofar as such steps are reasonably required, to effect acceptance of the Takeover Offer (in each case in accordance with the terms of the Offer Document); or

 

3.1.3

if so required by you, execute or procure the execution of all such other documents as may be reasonably necessary to give you the full benefit of this Undertaking,

 

(the Acceptance).

 

4.

Election

 

(If making an election when returning this Undertaking, recipient to include either paragraph 4.1(a) or (b) (as appropriate) and delete paragraph 4.2. If recipient intends to reserve its right to elect until formally accepting the Offer, please include paragraph 4.2 and delete paragraph 4.1))

 

4.1

[I hereby irrevocably and unconditionally agree and undertake to you that I shall, or shall procure that the Nominee shall, by way of the Acceptance:

 

4.1.1

elect in respect of the Subject Shares:

 

(a)

[the Cash Offer];

 

OR

 

(b)

[the Unlisted Unit Alternative (as defined in the Rule 2.7 Announcement),]

 

4.1.2

not withdraw, revoke or vary such election without the prior written consent of BidCo and/or the K1 Group.]

 

4.2

[This Undertaking does not constitute an election for either the Cash Offer or the Unlisted Unit Alternative (as defined in the Rule 2.7 Announcement) and I reserve the right to make, in due course and by way of the Acceptance, an election for the Cash Offer or for the Unlisted Unit Alternative in respect of the Subject Shares.]

 

5.

Documentation

 

5.1

I consent to:

 

5.1.1

this Undertaking being disclosed to the Panel;

 

5.1.2

the inclusion of references to me and particulars of this Undertaking and my holdings of relevant securities of the Company being included in any Offer Document and any announcement made, or document issued, by or on behalf of the Company and/or the K1 Group in connection with the Proposed Transaction; and

 

 

5.1.3

this Undertaking being available for inspection as required by the Rules.

 

5.2

I shall promptly give you all such information with respect to my holding of Subject Shares and any assistance as you may reasonably require for the preparation of the Rule 2.7 Announcement, any Offer Document and any other announcement to be made, or document to be issued, by or on behalf of BidCo, the K1 Group or the Company in connection with the Proposed Transaction in order to comply with the requirements of the Rules, the Panel, or any other applicable legal or regulatory requirement and I shall notify you promptly if any such information changes.

 

6.

Implementation by way of Scheme

 

6.1

I acknowledge that BidCo and/or the K1 Group shall have the right and may elect at any time (with the consent of the Panel (if required) and whether or not the Offer Document has then been despatched) to implement the Proposed Transaction by way of a scheme of arrangement under Chapter 1 of Part 9 of the Act (a Scheme), as opposed to by way of the Takeover Offer.

 

6.2

If BidCo and/or the K1 Group was to implement the Proposed Transaction by way of a Scheme, I undertake and warrant that, notwithstanding any other provision of this Undertaking, any undertakings, agreements, warranties, appointments, consents and waivers in this Undertaking shall apply mutatis mutandis to such Scheme and, in particular, I hereby irrevocably and unconditionally agree and undertake to you that I shall, or shall procure that the Nominee shall:

 

6.2.1

exercise, or (as appropriate) procure the exercise of, all voting rights attaching to the Subject Shares to vote in favour of all resolutions (including a Relevant Resolution) to approve the Proposed Transaction, the Scheme and any related matters proposed at any general or class meeting or postponed meeting of the Company in connection with the Scheme (the EGM) and any meeting or class meeting or postponed meeting of the Company convened pursuant to section 450 of the Act to approve the Scheme (a Scheme Meeting) or at any postponement of any such meeting and to vote against any adjournment of the EGM or Scheme Meeting (all such resolutions collectively, the Scheme Resolutions);

 

6.2.2

execute, or (as appropriate) procure the execution of, any forms of proxy in respect of the Subject Shares required by BidCo and/or the K1 Group validly appointing any person nominated by BidCo and/or the K1 Group to attend and vote at any EGM and/or Scheme Meeting (or any adjournment or postponement thereof) in favour of the Scheme Resolutions, and shall ensure that any such executed forms of proxy are received by the Company’s registrars not later than 5:00 p.m. (New York Time) on the tenth Business Day after the Company sends the Scheme Document to the Company’s shareholders (or, in respect of any Further Company Shares, within five days of acquiring an interest in such shares, if later);

 

6.2.3

not revoke (or seek to cause the revocation of) the terms of any proxy submitted in accordance with paragraph 6.2, either in writing or by attendance at any EGM or Scheme Meeting (or any adjournment or postponement thereof) or otherwise; and

 

6.2.4

not exercise any voting rights attaching to the Subject Shares to vote in favour of any competing scheme of arrangement or any action which may frustrate the implementation of the Proposed Transaction.

 

6.3

A Relevant Resolution means:

 

6.3.1

any Scheme Resolution;

 

6.3.2

any other resolution (whether or not amended) proposed at a general or class meeting of the Company, or at an adjourned meeting, the passing of which is necessary to implement the Scheme; and

6.3.3

a resolution to adjourn a general or class meeting of the Company whose business includes the consideration of any Scheme Resolution and which is recommended by the board of directors of the Company.

 

6.4

References in this Undertaking to:

 

6.4.1

the Takeover Offer becoming or being declared unconditional shall be read as references to the Scheme becoming effective;

 

6.4.2

the Takeover Offer lapsing or withdrawn shall be read as references to the Scheme lapsing or being withdrawn;

 

6.4.3

the Offer Document shall be read as references to the Scheme Document; and

 

6.4.4

the Takeover Offer shall be read as references to the Scheme.

 

7.

Time of the essence

 

Any time, date or period mentioned in this Undertaking may be extended by mutual agreement but as regards to any time, date or period originally fixed or as extended, time shall be of the essence.

 

8.

Lapse of undertaking

 

8.1

Notwithstanding any other provision of this Undertaking, this Undertaking (and all of my Obligations) shall lapse and cease to have any effect on and from the earliest of the following occurrences:

 

8.1.1

BidCo and/or the K1 Group publicly announces that it does not intend to make or proceed with the Proposed Transaction and no new, revised or replacement offer or scheme is announced in accordance with Rule 2.7 of the Rules, either at the same time or within two days of such announcement;

 

8.1.2

the Takeover Offer lapses, closes or is withdrawn (which, for the avoidance of doubt, will not be deemed to have occurred only by reason of BidCo and/or the K1 Group electing to switch from the Takeover Offer to a Scheme in accordance with paragraph 7); and

 

8.1.3

the Takeover Offer becomes or is declared unconditional in all respects or the Scheme becomes effective.

 

8.2

For the avoidance of doubt and subject to paragraphs 8.1.2 – 8.1.3, this Undertaking shall continue in full force and effect in circumstances where BidCo and/or the K1 Group publicly announces a revised Rule 2.7 Announcement or Offer at any time after the date of this Undertaking, on terms no less favourable (including as to price) to those contained in the Rule 2.7 Announcement published on 24 April 2024, and any such revision shall not cause the Undertaking to lapse.

 

9.

Governing law

 

This Undertaking and any suit, action or proceedings that may arise out of or in connection with it shall be governed by and construed in accordance with the laws of Ireland and I agree that the courts of Ireland are to have exclusive jurisdiction to hear and determine any suit, action or proceedings that may arise out of or in connection with this Undertaking and, for such purposes, I irrevocably submit to the jurisdiction of such courts.

 

10.

Specific performance

 

Without prejudice to any other rights or remedies which you may have, I acknowledge and agree that damages may not be an adequate remedy for any breach by me of any of the Obligations and BidCo and/or the K1 Group shall be entitled to the remedies of injunction, specific performance and other equitable relief for any threatened or actual breach of any of the Obligations and no proof of special damages shall be necessary for the enforcement by you of your rights.

11.

Severability

 

The covenants and undertakings contained in this Agreement and each part of them are entirely severable and separately enforceable so that each covenant and undertaking and each part of them shall be deemed to be a separate covenant and undertaking.

 

12.

Interpretation

 

12.1

In this Undertaking, the following words and expressions shall have the meaning set opposite them:

 

Act means the Companies Act 2014, all enactments which are to be read as one with, or construed or read together with the Companies Act 2014 and every statutory modification and re-enactment thereof for the time being in force;

 

Affiliate of any Person means (a) any other Person which, directly or indirectly, controls or is controlled by or is under common control with such Person and (b) any officer or director of such Person. A Person shall be deemed to be “controlled by” any other Person if such Person possesses, directly or indirectly, power to vote 10% or more of the securities (on a fully diluted basis) having ordinary voting power for the election of directors or managers or power to direct or cause the direction of the management and policies of such Person whether by contract or otherwise;

 

Applicable Requirements means the requirements of the Act, the Rules and the requirements of any other applicable law or regulation or the requirements of any court or governmental or regulatory authority;

 

Business Day means any day, other than a Saturday, Sunday or public holiday in Dublin, Ireland;

 

Cash Offer means $0.55 in respect of each Company Share;

 

Further Company Shares means (i) any further shares in the share capital of the Company in respect of which I acquire an interest and in respect of which I am entitled to exercise, or direct the manner of exercise of, the voting of such shares and (ii) any other shares in the share capital of the Company that are attributable to or derived from any such further shares mentioned in limb (i) of this definition;

 

Interest and interested have the meanings given to those terms in the Rules;

 

K1 Group, means K1, K5, Meridian Topco LLC, BidCo and each of their respective Affiliates;

 

K5 means K5 Private Investors, L.P., a limited partnership organised and existing under the laws of Delaware with a registered address at 1209 Orange Street, Wilmington, Delaware 19801;

 

Obligations means my undertakings, agreements, warranties, appointments, consents and waivers set out in this Undertaking;

 

Offer means the Takeover Offer or the Scheme;

 

Panel means the Irish Takeover Panel;

 

Person means any natural person, corporation, partnership, trust, limited liability company, association, governmental authority or unit, or any other entity, whether acting in an individual, fiduciary or other capacity;

 

Relevant Securities has the meaning given to that term in the Rules;

 

Rules means The Irish Takeover Panel Act 1997, Takeover Rules 2022;

 

Rule 2.7 Announcement means the Rule 2.7 Announcement published on 24 April 2024, in respect of the Proposed Transaction which sets out the terms and conditions upon which BidCo proposes to acquire the entire issued and to be issued share capital of the Company pursuant to the Takeover Offer or Scheme;

Subject Shares means Company Shares, Convertible Securities or Further Company Shares;

 

Takeover Offer means the proposed acquisition of the Company by BidCo pursuant to an “offer”, as that term is defined under the Rules; and

 

Undertaking means this deed of irrevocable undertaking.

 

12.2

Unless otherwise defined, capitalised terms shall have the meaning given to them by the Rules.

 

13.

Power of Attorney

 

13.1

In order to secure the performance of the Obligations, for so long as this Undertaking has not lapsed in accordance with paragraph 8, I hereby irrevocably appoint individually or collectively each and every one of the investment committee of K1 (each, an Attorney) to be my attorney in my name and on my behalf to execute any form or forms of acceptance and/or such other documents and do such other acts or things (if any) as may be reasonably necessary to accept and/or vote in favour of the Takeover Offer or Scheme (as applicable) and/or to otherwise satisfy the Obligations in respect of my Subject Shares.

 

13.2

The power of attorney granted under this paragraph 13 shall at any time take effect as if it had individually named the persons who are at that time on the investment committee of K1.

 

13.3

Any action authorised under this power of attorney may be taken by any Attorney acting alone.

 

13.4

I hereby irrevocably undertake to ratify any such act committed in exercise of this power, if called upon to do so. I also acknowledge that this power of attorney is irrevocable until this Undertaking lapses in accordance with its terms.

 

14.

Acknowledgments and undertaking

 

14.1

I hereby accept and acknowledge that, subject to paragraph 8, the Obligations assumed pursuant to this Undertaking are irrevocable.

 

14.2

I hereby accept and acknowledge that I have not entered into this Undertaking relying on any statement or representation, whether or not made by any member of the K1 Group (or any of their respective directors, officers, employees or agents) or any other person and that nothing in this Undertaking obliges any member of the K1 Group to announce or proceed with the Takeover Offer or despatch the Offer Document in the event that it is not required to do so by the Rules.

 

14.3

I undertake to give such directions to the Nominee to take such acts and do such things as are necessary to give each member of the K1 Group the full benefit of this Undertaking. References in this Undertaking to Obligations on my part shall be construed to include obligations, wherever relevant, to procure that equivalent actions be taken by the Nominee.

 

14.4

The obligations and provisions set out in this Undertaking apply equally to the persons, if any, from whom I am to procure acceptance of the Takeover Offer pursuant to the terms of paragraph 3 above or votes in favour of the resolutions to implement the Scheme pursuant to paragraph 6 above (as the case may be) in respect of the Subject Shares held by those individuals (or, in the case of paragraph 2.2, any Relevant Securities in which I will acquire an interest), and I shall procure the observance by such persons of the terms hereof as if they were each specifically a party hereto.

Schedule 1

 

Part 1 - Company Share Details

 

Class	Number	Registered Holder	Ultimate Beneficial Owner
Ordinary	[  ●  ]	[  ●  ]	[  ●  ]

 

Part 2 - Convertible Share Details

 

Date of grant	Number of shares under option/ award	Exercise Period	Exercise price
[  ●  ]	[  ●  ]	[  ●  ]	[  ●  ]

 

Schedule 2

 

Rule 2.7 Announcement

 

In witness whereof this Deed has been duly executed and delivered as a deed poll on the date shown at the beginning of this document

 

EXECUTED AND DELIVERED as a deed By [ ● ]
		Signature
Witness to Signature of [  ●  ]
Witness
Print Name of Witness
Print Address of Witness
Occupation of Witness

 

 

Exhibit (d)(6)

 

 

 

 

 MERIDIAN TOPCO LLC

 

 

AMENDED AND RESTATED  

 

LIMITED LIABILITY COMPANY AGREEMENT

Dated [●], 2024

 

 

  

Table of Contents

 

Page

Article I CERTAIN DEFINITIONS	1
Article II ORGANIZATIONAL MATTERS	5
2.1         Limited Liability Company Agreement	5
2.2         Name	5
2.3         Purpose	5
2.4         Principal Office; Registered Agent and Office	5
2.5         Term	6
2.6         No State Law Partnership	6
2.7         Title to Company Assets	6
Article III UNITS AND CAPITAL CONTRIBUTIONS	6
3.1         Units	6
3.2         No Withdrawal	6
3.3         Loans from Members	6
Article IV DISTRIBUTIONS	7
4.1         Distributions	7
4.2         Offset	7
Article V MANAGEMENT	7
5.1         Authority of Board	7
5.2         Composition of the Board	8
5.3         Quorum; Board Actions; Meetings	10
5.4         Delegation of Authority	10
5.5         Officers	10
5.6         Standard of Care	11
5.7         Exculpation of Managers	11
5.8         Right to Indemnification	12
5.9         Observance of Formalities	13
Article VI MEMBERS	13
6.1         Admission and Withdrawal of Members.	13
6.2         Lack of Authority	14
6.3         Members Actions	14
6.4         Waiver of Duties	14
6.5         Limitation of Liability	14
6.6         Return of Distributions	14
6.7         No Right of Partition	15
6.8         Investment Opportunities and Conflicts of Interest	15
6.9         Transactions with the Company	15
6.10       Confidentiality	15
6.11       Information Rights	16
Article VII TAX MATTERS	16
7.1         Preparation of Tax Returns	16
7.2         Tax Elections	17

 

 

7.3         Tax Administration	17
Article VIII TRANSFERS, TAG-ALONG RIGHTS AND SALE TRANSACTION	18
8.1         Transfer Restrictions	18
8.2         Tag-Along Rights	18
8.3         Approved Sale	19
8.4         Transfer Fees and Expenses	21
Article IX REPURCHASE	21
9.1         Repurchase Provisions	21
9.2         Restrictions and Remedies	22
Article X DISSOLUTION AND LIQUIDATION	22
10.1        Dissolution	22
10.2        Liquidation and Termination	23
10.3        Liability of Liquidators	24
10.4        Hart-Scott-Rodino	24
Article XI GENERAL PROVISIONS	24
11.1        Power of Attorney	24
11.2        Amendments	24
11.3        Third Party Beneficiaries; Creditors; Successors and Assigns	25
11.4        Remedies	25
11.5        Severability	25
11.6        Descriptive Headings; Interpretation	25
11.7        Governing Law; Choice of Law; Dispute Resolution	26
11.8        Addresses and Notices	26
11.9        Waiver	27
11.10       Entire Agreement; Further Action; Counterparts and Delivery	27
11.11       Legal Representation	27
11.12       Certain Waivers	27
11.13       Certain Administrative Expenses	28

MERIDIAN TOPCO LLC

AMENDED AND RESTATED 

LIMITED LIABILITY COMPANY AGREEMENT

 

The Members of the Company hereby enter into this Agreement on this [●], 2024 and hereby agree as follows.

 

Pursuant to the filing of the Certificate of Formation of the Company with the office of the Delaware Secretary of State, the Company was formed on March 28, 2024 as a limited liability company in accordance with the Delaware Limited Liability Company Act (“Delaware Act”).

 

The affairs of the Company have been governed by that certain Limited Liability Company Agreement, dated as of March 28, 2024 (the “Original Agreement”). In connection with the consummation of the Tender Offer, the Members desire to amend and restate the Original Agreement in order to set forth certain agreements regarding the management and affairs of the Company.

 

Article I
CERTAIN DEFINITIONS

 

Capitalized terms used but not otherwise defined herein have the meanings set forth below, in any Equity Plan or in the Delaware Act:

 

“Affiliate” of any particular Person means any other Person controlling, controlled by or under common control with such particular Person, where “control” means the possession, directly or indirectly, of the power to direct the management and policies of a Person whether through the ownership of voting securities, by contract or otherwise.

 

“Agreement” means this amended and restated limited liability company agreement.

 

“Board” means the board of managers of the Company established and constituted pursuant to Section 5.2, which shall have the power and authority described in this Agreement.

 

“Business” means the business carried on by the Company Group.

 

“Capital Contributions” means any cash, property, services rendered or promissory note or other obligation to contribute cash or property or to perform services which a Person contributes or is deemed to contribute to the Company in its capacity as a Member.

 

“Cause” means (a) in respect of a Management Investor that is not party to an employment, consulting, change in control, severance or similar written agreement between such Management Investor and the Company Group (or where there is such an agreement but it does not define “cause”) that such Management Investor: (i) has failed or refused to comply with a material directive from the Board or the person to whom such Management Investor reports; (ii) has reported to work under the influence of alcohol or has abused alcohol in a manner that impairs such Management Investor’s ability to perform Management Investor’s duties; (iii) has used illegal drugs (whether or not at the workplace); (iv) has violated a material written policy of the Company Group and, if curable, such violation is not cured to the Board’s reasonable satisfaction within 14 days after written notice thereof to Management Investor; (v) has engaged in misconduct that could be injurious to the business or reputation of the Company Group or has engaged in other conduct causing the Company Group substantial public disgrace, disrepute or economic harm; (vi) has committed a felony, an indictable offence or other crime involving moral turpitude or any other act or omission involving misappropriation, embezzlement, dishonesty, disloyalty, theft or fraud with respect to the Company Group or any of its customers, suppliers or other business relations; (vii) has breached any fiduciary duty or engaged in conduct that is grossly negligent or constitutes willful misconduct with respect to the Company Group; (viii) has aided or abetted a competitor, supplier, customer or other business relation of the Company Group to the disadvantage or detriment of the Company Group; (ix) has engaged in sexual relations or a romantic relationship with an employee that is not such Management Investor’s spouse, domestic Member or fiancé or has otherwise engaged in any other inappropriate social interactions with any employee of the Company Group; (x) has engaged (or prepared to engage) in any activities competitive with the business of the Company Group; or (xi) has breached any material agreement between Management Investor and the Company Group which, if curable, is not cured to the Board’s reasonable satisfaction within 14 days after written notice thereof to Management Investor; or (b) in respect of a Management Investor that is party to an employment, consulting, change in control, severance or similar agreement between such Management Investor and the Company Group that defines “cause,” “cause” as defined under such agreement.

 

 

“Class A Unit” means a Unit having the rights, powers and duties specified with respect to a Class A Unit in this Agreement.

 

“Class B Unit” means a Unit having the rights, powers and duties specified with respect to a Class B Unit in this Agreement.

 

“Code” means the United States Internal Revenue Code of 1986.

 

“Company” means Meridian TopCo LLC, a Delaware limited liability company.

 

“Company Group” means the Company, the Operating Companies and any entity that is or becomes a subsidiary of the foregoing, and, where applicable herein, any of the Company, any Operating Company or any entity that is or becomes a subsidiary of the foregoing.

 

“Company Group Persons” means the Company Group, its Affiliates and its and their direct and indirect equityholders, directors, managers, officers, members, Members, employees, agents and representatives.

 

“Distribution” means a distribution made by the Company to a Member with respect to such Member’s Units, whether in cash, property or securities and whether by liquidating distribution, redemption, repurchase or otherwise; provided that none of the following shall be a Distribution: (a) any redemption or repurchase by the Company of any securities of the Company, including in connection with the termination of employment of an employee or any service provider of the Company or any of its subsidiaries, (b) any recapitalization, conversion or exchange of securities of the Company, and (c) any subdivision (by Unit split or otherwise) or any combination (by reverse Unit split or otherwise) of any outstanding Units.

 

“Equity Plan” means any incentive plan that may be hereafter adopted by the Board that governs any Units.

 

“Exempt Transfer” means a sale or transfer of Units by the K1 Investor to one of its Affiliates or any other sale or transfer of Units (i) among the K1 Group or (ii) to any equityholder, Member, member or other indirect equityholder of the K1 Group.

 

 

 

“Family Group” means, with respect to a natural person, (i) such natural person’s heirs, executors, administrators or personal representatives, (ii) any revocable trust, the sole trustee of which is such natural person or such natural person’s executor or personal representative and which at all times is and remains solely for the benefit of such natural person or such natural person’s relatives, or any trust that is created under such person’s will and (iii) any S-corporation, partnership, limited liability company or other tax flow-through entity the governing instruments of which provide that such natural person or such natural person’s executor or personal representative shall have the exclusive, nontransferable power to direct the management and policies of such entity and of which the sole record and beneficial owners of stock, partnership interests, limited liability company interests or other equity interests are limited to such natural person, such natural person’s spouse or descendants or the trusts described in clause (ii) above.

 

“FATCA” means (i) Sections 1471 through 1474 of the Code, any successor legislation, any U.S. Department of Treasury Regulations, forms, instructions or other guidance issued pursuant thereto, (ii) any intergovernmental agreement entered into pursuant to such authorities, and (iii) any current or future legislation, regulations or guidance promulgated by any jurisdiction giving effect to any item described in clause (i) or (ii).

 

“Foreign Account Reporting Requirements” means FATCA and any similar law, intergovernmental agreement or other legal or administrative requirement promulgated or agreed to by any jurisdiction, including the Standard for Automatic Exchange of Financial Account Information (Common Reporting Standard) of the Organisation for Economic Co-operation and Development.

 

“Grant Agreement” has the meaning set forth in an Equity Plan.

 

“K1 Group” means K1 Investment Management, its Affiliates and any of their respective managed investment funds and portfolio companies (including K5, but excluding the Company and its subsidiaries) and their respective Members, members, directors, managers, employees, stockholders, agents, any successor by operation of law (including by merger or otherwise) of any such Person, and any entity that is an Affiliate of K1 Group that acquires all or substantially all of the assets of any such Person in a single transaction or series of related transactions.

 

“K1 Investment Management” means K1 Investment Management, LLC, a Delaware limited liability company.

 

“K1 Investor” means K5 Private Investors, L.P., a Delaware limited partnership (“K5”), and any of its Affiliates that becomes a Member after the date hereof. If at any time there is more than one Person comprising the K1 Investor, then any determination, appointment, designation, consent or approval to be made, given or withheld by the K1 Investor under this Agreement shall be made, given or withheld by Persons holding a majority of the K1 Investor Equity.

 

“K1 Investor Equity” means, (i) the Class A Units issued to the K1 Investor on the date hereof, (ii) any other Units of the Company or any equity securities of the Company’s subsidiaries issued to or acquired by the K1 Investor and (iii) any securities issued to the K1 Investor with respect to the foregoing securities.

 

"LLC Interest” means, in respect of a Member, such Member's limited liability company interest in the Company, including such Member's rights based on the Units held thereby, to a distributive share of profits, losses and other items of income, gain, loss, deduction and credits of the Company, to Distributions pursuant to Section 4.1 and to a distributive share of the assets of the Company pursuant to Section 10.2.

 

 

 

“Management Investor” means (i) each Member that is designated as a “Management Investor” by the Board from time to time and (ii) unless otherwise determined by the Board, each manager, director, officer or employee of, or consultant, advisor or other provider of services to, the Company Group who, in each case pursuant to an Equity Agreement acquires Units after the date hereof and becomes a Member pursuant to the terms hereof.

 

“Manager” means each Person who is appointed as a manager to the Board pursuant to Section 5.2(a).

 

“Member” means each Person that is admitted to the Company as a Member on the date hereof and each Person that is admitted to the Company as a Member after the date hereof, in each case, pursuant to Section 6.1.

 

"Membership Interest" means, in respect of a Member, the rights, powers and duties of such Member set forth in this Agreement and the Delaware Act.

 

“Operating Companies” means (i) MariaDB plc and its direct and indirect subsidiaries, (ii) MariaDB USA Inc. and its direct and indirect subsidiaries, (iii) any direct or indirect subsidiary of the Company designated as an Operating Company by the Board from time to time and (iv) any successor of any of the foregoing.

 

“Permitted Transferee” means, in respect of a Management Investor, a member of such Management Investor’s Family Group.

 

“Person” means any individual, sole proprietorship, partnership, joint venture, trust, unincorporated association, corporation, limited liability company, entity or governmental entity (whether federal, state, county, city or otherwise and including any instrumentality, division, agency or department thereof).

 

“Pro Rata Basis” means, with respect to each Member, and as determined with respect to any particular expense, liability or obligation incurred (or amount of proceeds withheld) in connection with any Approved Sale or any sale contemplated by Section 8.2, the amount that such Member’s proceeds would be reduced as a percentage of the aggregate reduction in proceeds to all Members assuming the Total Equity Value implied by such Approved Sale or sale contemplated by Section 8.2 was being distributed to the Members in accordance with Section 4.1 and as if such expense, liability or obligation were incurred and satisfied by the Company (or such amount of proceeds were withheld) prior to such distribution.

 

“Pro Rata Share” means with respect to each Unit, the aggregate amount such Unit would receive if an amount equal to the Total Equity Value was distributed to all Units in accordance with the distribution provisions of Section 4.1.

 

“Restricted Investor” means each Member other than the K1 Investor.

 

“Sale Transaction” means, unless otherwise determined by the Board, (a) a transaction or series of transactions (including by way of merger, recapitalization, reorganization, sale of Units or sale of the limited liability company interests or other equity securities of any subsidiary of the Company) with any unaffiliated third party the result of which is that (i) the K1 Investor is no longer, in the aggregate, the beneficial owner, directly or indirectly through one or more intermediaries, of Units representing more than 50% of the Total Equity Value; (ii) the Company is no longer, in the aggregate, the beneficial owner directly or indirectly through one or more intermediaries, of the issued and outstanding equity interests of MariaDB USA Inc. (or its successor-in-interest), representing more than 50% of the aggregate equity value thereof; or (iii) the K1 Managers no longer hold a majority of the total votes of the Board or (b) the sale, in one transaction or a series of related transactions, of all or substantially all of the assets of the Company Group, taken as a whole, to an unaffiliated third party.

 

 

“Securities Act” means the United States Securities Act of 1933.

 

“Substituted Member” means a Person that is admitted as a Member of the Company pursuant to Section 6.1 after the date hereof.

 

“Tender Offer” means an offer for the entire issued and to be issued share capital of MariaDB plc pursuant to a Tender Offer Statement on Schedule TO filed with the Securities and Exchange Commission by Meridian Bidco LLC, a wholly owned subsidiary of the Company.

 

“Total Equity Value” means, as of any date of determination, the aggregate fair market value of all Units outstanding as of such date.

 

“Transfer” means any sale, transfer, assignment, exchange, pledge, hypothecation, mortgage, grant of a participation interest, grant of a security interest or other direct or indirect disposition or encumbrance.

 

“Treasury Regulations” means the Federal income tax regulations, including any temporary or proposed regulations, promulgated under the Code.

 

“Units” means the Class A Units and the Class B Units and any other class of Units created and authorized by the Board after the date hereof.

 

Article II
ORGANIZATIONAL MATTERS

 

2.1         Limited Liability Company Agreement. During the Term, the rights, powers and duties of the Members with respect to the Company will be as set forth (x) in this Agreement and (y) except where the Delaware Act provides that such rights, powers and duties specified in the Delaware Act shall apply “unless otherwise provided in a limited liability company agreement” or words of similar effect and such rights, powers and duties are set forth in this Agreement, the Delaware Act.

 

2.2         Name. The name of the Company, as set forth in the Certificate of Formation of the Company, is Meridian TopCo LLC. The Board may change the name of the Company at any time. The Company’s business may be conducted under its name or any other name deemed advisable by the Board.

 

2.3         Purpose. The purpose and business of the Company shall be to manage and direct the business operations and affairs of the Company Group and to engage in any other lawful acts or activities for which limited liability companies may be organized under the Delaware Act.

 

2.4         Principal Office; Registered Agent and Office. The initial principal office of the Company will be 875 Manhattan Beach Blvd, Manhattan Beach, California 90266 and all business and activities of the Company will be deemed to have occurred at its principal office. The initial address of the registered office of the Company in the State of Delaware will be the office of the initial registered agent named in the Certificate of Formation of the Company and the initial registered agent for service of process on the Company in the State of Delaware at such registered office shall be the registered agent named in the Certificate of Formation of the Company.

 

 

2.5           Term. The term of the Company commenced on the filing of the Certificate of Formation of the Company in accordance with the Delaware Act and shall continue in existence until the Company is terminated and dissolved in accordance with the provisions of Article X (“Term”).

 

2.6           No State Law Partnership. The Members intend that the Company not be a partnership or joint venture and that no Member be a partner or joint venturer of any other Member by virtue of this Agreement, and neither this Agreement nor any other instrument entered into by the Company or any Member relating to the subject matter hereof shall be construed to suggest otherwise.

 

2.7           Title to Company Assets. The Company’s assets shall be deemed to be owned by the Company as an entity and no Member, individually or together with other Members, shall have any ownership interest in such assets. All the Company assets shall be recorded as the property of the Company on its books and records, irrespective of the name in which legal title to such assets is held. Legal title to any asset may be held in the name of the Company or one or more nominees, as the Board may determine. Any of the Company assets for which legal title is held in the name of any nominee shall be held in trust by such nominee for the use and benefit of the Company in accordance with the provisions of this Agreement.

 

Article III
UNITS AND CAPITAL CONTRIBUTIONS

 

3.1           Units.

 

(a)           Units. LLC Interests shall be represented by “Units,” and shall include Class A Units, which shall have the right to vote on any action, approval or consent by the holders of Class A Units to the extent such right is expressly granted pursuant to this Agreement, Class B Units which, except for non-waivable rights (if any) expressly granted to the holders of such Units pursuant to Delaware law, shall have no voting rights, and any other series of Units created and authorized by the Board after the date hereof; provided that any such class of Units shall have the relative rights, powers and duties set forth in this Agreement and any applicable Equity Plan.

 

(b)          Unit Ownership Ledger. The Company has created and will maintain a “Unit Ownership Ledger” setting forth the name of each Member, the number of each class of Units held of record by such Member, the amount of the Capital Contributions made by such Member with respect to each class of Units, and any other information deemed relevant by the Board. Absent manifest error, the Unit Ownership Ledger shall be the conclusive record of the information set forth thereon. The Board shall amend the Unit Ownership Ledger to reflect any issuance, sale, transfer, forfeiture or cancelation of Units, or any applicable modification to any other information set forth thereon, which amendment shall not require the consent or approval of any Person other than the Board. Any reference in this Agreement to the Unit Ownership Ledger shall be deemed a reference to the Unit Ownership Ledger as amended and updated at such time.

 

3.2         No Withdrawal. No Member shall be entitled to withdraw any part of such Member’s Capital Contributions or receive any Distribution from the Company, except as expressly provided herein.

 

3.3         Loans from Members. Loans by Members to the Company shall be a debt of the Company to such Member, shall be payable or collectible in accordance with the terms on which such loans are made and shall not be deemed Capital Contributions.

 

 

Article IV
DISTRIBUTIONS

 

4.1         Distributions. Except as set forth in this Agreement and subject to the terms of any Equity Plan, Distributions shall be made to the holders of Class A Units and Class B Units ratably among such holders based on the number of Class A Units and Class B Units held by each such holder immediately prior to such Distribution.

 

4.2         Offset. Whenever the Company is to make a Distribution or pay any sum to any Member or any Affiliate or related Person thereof, (a) any amounts that such Member or such Affiliate or related Person owes to the Company Group, (b) any fees, costs, expenses or other amounts that the Company Group or any Affiliate thereof has paid on behalf of a Member or any Affiliate or related Person thereof and (c) any amounts the Board determines could result in a lien or encumbrance against any Units held by a Member, in each case, may be offset or deducted from that sum before such Distribution or payment.

 

Article V
MANAGEMENT

 

5.1           Authority of Board.

 

(a)           Exclusive Authority and Power. Subject to the terms of this Agreement and except for the actions that pursuant to this Agreement expressly require the approval or consent of the K1 Investor or of the Members, notwithstanding anything to the contrary in the Delaware Act, without any vote, consent or approval of any Member, class or group of Members or other Person, the Board shall have the exclusive authority and power to:

 

(i)         conduct, direct and exercise full control over all activities of the Company, including all decisions relating to the issuance, voting, sale and Transfer of, and the exercise of other rights with respect to, securities of the Company’s subsidiaries;

 

(ii)        manage the business and affairs of the Company, including matters concerning (A) distribution of net profits, net losses and investment proceeds, including the taxes thereon, and (B) accounting procedures and determinations, tax determinations and elections;

 

(iii)       (A) bind or take any action on behalf of the Company and (B) exercise any rights and powers (including the rights and powers to take certain actions, give or withhold certain consents or approvals, or make certain determinations, opinions, judgments or other decisions) granted to the Company under this Agreement or any other contract, instrument or other agreement to which the Company is a party, including any Equity Agreement;

 

 

 

(iv)       (A) approve on behalf of the Company and all of the Members, a Sale Transaction in which the Company or any of its subsidiaries is the seller or any merger, consolidation or other transaction involving the Company, any of its subsidiaries or any of their assets (it being understood that no approval of any Members or class or group of Members shall be required for any such transaction, including under Section 18-209 of the Delaware Act) and to cause the Company to enter into any agreement regarding any Sale Transaction in which the Company or any of its subsidiaries is the seller or any merger, consolidation or other transaction involving the Company, any of its subsidiaries or any of their assets, (B) approve and structure an initial public offering and determine all necessary, customary or advisable actions to be taken by the Company in connection therewith, (C) in accordance with the Delaware Act, determine the location of the principal and any other office of the Company and the registered agent and registered office of the Company, (D) cause the Company to transfer to, or domesticate or continue in any jurisdiction, and, in connection therewith, elect to continue its existence as a limited liability company, in the State of Delaware, (E) cause the Company to convert to a corporation or other entity, (F) cause the Company to create and issue Units (including other classes of Units having such relative rights, powers or duties as may from time to time be established by the Board, including rights, powers or duties different from, senior to or more favorable than existing classes of Units) and to determine the consideration payable in connection with the issuance of Units, if any, and, in connection therewith, amend (and restate) this Agreement and the Unit Ownership Ledger to reflect such issuances and to make such other amendments as the Board deems necessary or desirable to reflect such issuances (including amending this Agreement to add the terms of such new classes of Units, including economic and governance rights which may be different from, senior to or more favorable than those of existing Units), (G) cause the Company to repurchase, redeem or otherwise acquire Units, (H) determine the fair market value of any Unit and the fair value of any assets of the Company, including any equity or debt securities of any subsidiary of the Company, in each case, taking into account all factors determinative of value that the Board deems relevant, (I) determine, as of any applicable time, the Total Equity Value, Pro Rata Basis, Pro Rata Share and any other amounts contemplated to be determined or calculated herein, (J) admit any Person as a Member, (K) amend (and restate) this Agreement, (L) permit a Person to continue as a Member notwithstanding the happening of the events described in Section 18-304 of the Delaware Act and (M) cause the Company to dissolve and wind up its affairs;

 

(v)        cause the Company to make Distributions and determine (A) the allocation and amount of such Distributions pursuant to Section 4.1 and (B) whether funds of the Company are available for distribution by the Company;

 

(vi)       determine the timing, amount and other terms of any investment in the Company and to effect amendments to this Agreement necessary in order to effectuate such investments and to determine on whose behalf expenses were incurred and the attribution of fees and expenses to the investment made directly or indirectly by the Company, its subsidiaries and Affiliates; and

 

(vii)      make such other determinations and interpretations not provided for by the terms of this Agreement, taking into account any interests and factors the Board deems appropriate.

 

(b)          Certain Actions. Notwithstanding anything in this Agreement to the contrary, without the prior written consent of the K1 Investor in its capacity as a Member, the Company shall not, and shall not permit any of its subsidiaries to, and no Manager shall vote to cause the Company Group to, (i) dispose of, divest, exchange or sell any material assets of the Company or any material assets, equity interests or securities of any of the Company’s subsidiaries or (ii) enter into or initiate any process in respect of a Sale Transaction, public offering, merger, combination, conversion, consolidation, amalgamation, recapitalization, reorganization, joint venture, partnership or similar transaction.

 

5.2         Composition of the Board.

 

(a)           Number and Appointment. Subject to the terms of this Section 5.2, the Board shall consist of three Managers appointed by the K1 Investor, each of whom shall be entitled to three votes (collectively, the “K1 Managers”), and such other Managers who shall from time to time be appointed by the K1 Investor, each of whom shall be entitled to one vote; provided that the K1 Managers shall at all times hold a majority of the total votes of the Board; provided further that the K1 Investor may at any time, in lieu of appointing all of the K1 Managers that the K1 Investor is entitled to appoint pursuant to this Section 5.2(a), elect to vest any appointed K1 Manager with the vote or votes of any such unappointed K1 Manager(s).

 

 

(b)          Term. Each Manager shall serve until a successor is appointed in accordance with the terms hereof or such Manager’s earlier resignation, death or removal. A person shall become a Manager effective on receipt by the Company of a written notice (or at such later time or on the happening of some other event specified in such notice) of such person’s appointment from the K1 Investor. A Manager may resign at any time by delivering written notice to the Company. Such resignation shall be effective on receipt by the Company unless it is specified to be effective at some other time or on the happening of some other event.

 

(c)           Removal. A Manager may be removed from the Board or any committee thereof only by the K1 Investor.

 

(d)          Vacancies. A vacancy on the Board because of resignation, death or removal of a Manager will be filled in accordance with Section 5.2(a); provided that, if the K1 Investor fails to appoint a person to fill a vacancy in respect of a Manager, then such Board seat shall remain vacant until filled by the K1 Investor pursuant to this Section 5.2(d) or the vote(s) of such Manager may be vested in another Manager pursuant to Section 5.2(a). A vacancy on the Board because of any increase in the size of the Board will be filled by the K1 Investor. For purposes of clarity, no vacancy with respect to the K1 Managers appointed to the Board shall be deemed to exist in the event that the K1 Investor vests in another K1 Manager the vote of any unappointed K1 Manager(s).

 

(e)           Reimbursement. The Company shall pay, or shall cause one of its subsidiaries to pay, the reasonable out-of-pocket costs and expenses incurred by each Manager and any observer of the Board in the course of such Person’s service hereunder, including in connection with attending regular and special meetings of the Board or any committee thereof, in each case, subject to the Company’s or such subsidiary’s policies and procedures with respect thereto (including the requirement of reasonable documentation thereof) and any other limitations or conditions thereto as may be determined by the Board.

 

(f)           Board Observer Right. The Board or the K1 Investor may approve one or more observers that shall (i) be entitled to attend the meetings of the Board, but who shall not be entitled to vote and (ii) be entitled to receive all notices, information and reports as determined by the Board that are generally furnished by the Company to the Board at the same time and in the same manner as the same is furnished to the Board; provided that, such observer may be required to leave, or not be allowed to attend, any meeting and information or reports may be withheld if the K1 Managers reasonably believe a conflict of interest or privilege arises or may arise in connection with the issues being discussed at such meeting or contained in such information or report. Such observer may be removed for any reason at any time by the Board or the K1 Investor.

 

 

 

5.3         Quorum; Board Actions; Meetings. At every meeting of the Board, the presence of the Managers holding at least a majority of the votes of all Managers then serving on the Board (i.e., excluding any vacancies on the Board, the votes of which have not been vested in other Managers) shall constitute a quorum. Unless a Manager has been vested with more than one vote pursuant to Section 5.2(a), each Manager shall have one vote on all matters submitted to the Board or any committee thereof (whether the consideration of such matter is taken at a meeting, by written consent or otherwise). The affirmative vote (whether by proxy or otherwise) of the Managers holding at least a majority of the votes of all Managers then serving on the Board (i.e., excluding any vacancies on the Board, the votes of which have not been vested in other Managers) shall be the act of the Board. Except as otherwise provided by the Board when establishing any committee, the affirmative vote (whether by proxy or otherwise) of the Managers then serving on such committee holding at least a majority of the votes of all Managers then serving on such committee shall be the act of such committee. Meetings of the Board and any committee thereof shall be held at the principal office of the Company or at such other place as may be determined by the Board or such committee. Regular meetings of the Board shall be held on such dates and at such times as shall be determined by the Board. Special meetings of the Board may be called by any Manager and special meetings of any committee may be called by any Manager on such committee. Notice of each special meeting of the Board or any committee thereof stating the date, place and time of such meeting shall be given to each Manager (in the case of a Board meeting) or each Manager on such committee (in the case of a committee meeting) by hand, telephone, email, overnight courier or the U.S. mail at least 24 hours prior to such meeting; provided, that such notice need not be delivered to any Manager who is not a K1 Manager if the presence of such Manager at such meeting would present a conflict of interest in respect of the matters to be considered or actions to be taken at such meeting. Notice may be waived before or after a meeting and shall be deemed waived by attendance without protest at such meeting. The actions taken by the Board or any committee thereof at any meeting (as opposed to by written consent), however called and noticed, shall be as valid as though taken at a meeting duly held after regular call and notice if (but not until), either before, at or after the meeting, the Managers as to whom it was improperly held waive notice or consent to the holding of such meeting. The actions by the Board or any committee thereof may be taken by vote of the Board or such committee at a meeting thereof or by written consent (without a meeting, without notice and without a vote) so long as such consent is signed by the Managers holding at least the number of votes that would be necessary to authorize or take such action at a meeting of the Board or such committee in which all Managers then serving on the Board or such committee, as the case may be, were present. Notice of any action so taken without a meeting shall be given to those Managers who have not consented in writing. A meeting of the Board or any committee thereof may be held (and at the request of any Manager, shall also be held) by telephone conference or similar communications equipment by means of which all individuals participating in the meeting can be heard. The Board and each committee thereof may adopt such other procedures governing meetings and the conduct of business at such meetings as the Board or such committee, as applicable, shall deem appropriate. Whenever the approval or consent of the Board is sought or required hereunder or otherwise, such approval or consent shall be valid only if such approval or consent is approved by the affirmative vote (whether by proxy or otherwise) of the Managers holding at least a majority of the votes of all Managers then serving on the Board (i.e., excluding any vacancies on the Board, the votes of which have not been vested in other Managers) pursuant to this Section 5.3.

 

5.4         Delegation of Authority. The Board may, from time to time, delegate to one or more Persons (including any Manager, Member or officer and including through the creation of one or more other committees) such authority and duties (including solely administrative or ministerial duties) as the Board may deem advisable. Any delegation pursuant to this Section 5.4 may be revoked for any reason at any time by the Board. The members and observers of any committee of the Board shall be determined by the Board.

 

5.5         Officers. From time to time the Board may appoint persons to serve as officers of the Company. An officer shall have only such title, authority and duties that the Board may provide from time to time. Each officer shall hold office until such officer’s successor is appointed or until such officer dies, resigns or is removed. An officer may resign at any time by delivering written notice to the Board and such resignation shall be effective on receipt by the Board unless it is specified to be effective at some other time or on the happening of some other event. An officer may be removed as an officer for any reason by the Board at any time. Appointment of an officer shall not of itself create contract rights. Any vacancy occurring in any office of the Company shall remain vacant until filled by the Board. Unless otherwise determined by the Board in writing, each officer shall, in the performance of such officer’s duties, owe to the Company and the Members duties of the type owed by the officers of a corporation to such corporation and its stockholders under the laws of the State of Delaware.

 

 

5.6         Standard of Care. To the maximum extent permitted under the Delaware Act and any other applicable law, neither the Board nor any Manager shall owe any fiduciary duties to the Company, any other Manager or the Members, any and all such fiduciary duties being hereby eliminated in all respects. Whenever in this Agreement or any other agreement contemplated herein or to which the Company is a party the Board (or any committee thereof) is permitted or required to take any action or to make a decision or determination, the Board (or such committee) may take such action or make such decision or determination in its sole discretion and shall not be subject to any other standard. The resolution, action or terms so made, taken or provided by the Board (or any committee thereof) shall be final, conclusive and binding on the Company and the Members. Whenever in this Agreement or any other agreement contemplated herein the Board is permitted or required to take any action or to make a decision or determination, each K1 Manager shall be entitled to consider such interests and factors as such K1 Manager desires (including the interests of such K1 Manager’s Affiliates (including in their capacity as Members), employers, Members and their respective Affiliates) and, consistent with the elimination of any and all fiduciary duties, shall have no duty or obligation (whether express or implied) to take into consideration any other interests or factors. With respect to any action taken or decision, determination or omission made by any Manager or the Board (or any committee thereof), it shall be presumed that each Manager and the Board (or any committee thereof) acted in good faith and in compliance with this Agreement and the Delaware Act and any Person bringing, pleading or prosecuting any claim with respect to any action taken or decision, determination or omission made by the Board (or any committee thereof) shall have the burden of overcoming such presumption by clear and convincing evidence; provided that this sentence shall not be deemed to impose any duties on the Board or any Manager.

 

5.7         Exculpation of Managers. No Manager shall be personally liable to any other Manager, the Company or to any Member for any loss suffered by the Company or any monetary damages for any breach of contract, breach of any duty (including any fiduciary duties, any and all such fiduciary duties having been eliminated pursuant to Section 5.6), error in judgment or reliance on information or advice provided by counsel, accountants or other advisors or professionals or any Member, Manager, officer, employee or committee of the Company Group in respect of the affairs of the Company. If the Delaware Act is hereafter amended or interpreted to permit further limitation of the liability of a Manager beyond the foregoing, then this Section 5.7 shall be interpreted to limit the personal liability of such Managers to the fullest extent permitted by the Delaware Act, as amended (but, in the case of any such amendment, only to the extent that such amendment permits the Company to limit the personal liability of the Managers to a greater extent than that permitted by said law prior to such amendment). No Manager shall be (a) personally liable for the debts, obligations or liabilities of the Company, including any such debts, obligations or liabilities arising under a judgment or order of a court, (b) required to return any Capital Contribution or (c) required to lend any funds to the Company.

 

 

 

5.8          Right to Indemnification.

 

(a)           Generally. Each Person who was or is made a party or is threatened to be made a party to or is or could reasonably expect to be involved in any threatened, pending or completed charge, suit or other proceeding, whether civil, criminal, administrative or arbitrative (hereinafter, a “Proceeding”), or any appeal in such a Proceeding or any audit or investigation that could lead to such a Proceeding, by reason of the fact that such Person, or a Person of whom such Person is the legal representative, is or was a Manager or officer of the Company or while a Manager or officer of the Company is or was serving at the request of the Company as a manager, director, officer, trustee, agent or similar functionary of another entity, enterprise, trust or employee benefit plan shall be indemnified by the Company to the fullest extent permitted by the Delaware Act, as the same exists or may hereafter be amended (but, in the case of any such amendment, only to the extent that such amendment permits the Company to provide broader indemnification rights than the Delaware Act permitted the Company to provide prior to such amendment) against judgments, penalties (including excise and similar taxes and punitive damages), fines, settlements and reasonable expenses (including attorneys’ fees and expenses) incurred by such Person in connection with such Proceeding, and indemnification under this Section 5.8 shall continue as to a Person who has ceased to serve in the capacity that initially entitled such Person to indemnity hereunder; provided that, unless such officer’s appointment the Board specifies otherwise, no officer shall be entitled to indemnification pursuant to this Section 5.8 (i) to the extent attributable to such officer’s gross negligence, willful misconduct, criminal conduct, bad faith acts or omissions or negligent violation of law, (ii) for any breach of any fiduciary duty of such officer, (iii) for any breach of any representations and warranties or covenants or other obligations by such officer contained in this Agreement or any other agreement with the Company Group or (iv) in any suit (except a suit to enforce the indemnification rights set forth in this Section 5.8) brought by such officer or such officer’s legal representative. The Members hereby acknowledge that the indemnification rights provided in this Section 5.8 could involve indemnification for negligence or under theories of strict liability. The indemnification rights conferred in this Section 5.8 shall include the right to require the Company to advance, pay on behalf of or reimburse the reasonable fees, costs and expenses incurred by a Manager or officer who is, or is threatened to be made, a party to, or is, or could reasonably be expected to become, involved in, a Proceeding in advance of the final disposition of such Proceeding; provided that the Company’s obligation to pay, or cause to be paid, such fees, costs and expenses shall be conditioned on such officer’s written affirmation by such officer that such officer believes in good faith that such officer has met the standard of conduct necessary for indemnification under this Section 5.8 and undertaking by such officer to repay all amounts so advanced if it is ultimately determined that such officer is not entitled to indemnification under this Section 5.8 or otherwise. The Board may elect to have the Company advance, pay on behalf of or reimburse the reasonable fees, costs and expenses incurred by a Manager or officer in connection with the appearance as a witness or other participation in a Proceeding at a time when such Manager or officer is not a party to such Proceeding. To the extent necessary to satisfy its obligations hereunder, the Company shall cause its subsidiaries to pay amounts it is required to pay hereunder. The indemnification obligations set forth in this Section 5.8 are referred to as “Company Indemnification Obligations” and the Persons entitled to such indemnification, “Indemnified Persons.”

 

(b)          Contract with the Company. The rights granted pursuant to this Section 5.8 shall be deemed contract rights, and no amendment, modification or repeal of this Section 5.8 shall have the effect of limiting any such rights with respect to actions taken, decisions, determinations or omissions made, circumstances, situations or Proceedings arising or relating to time periods, in all cases, prior to any amendment, modification or repeal.

 

(c)           Primacy of Obligations; Nonexclusive Rights.  The Company and the Members hereby acknowledge and agree that (v) certain Indemnified Persons may have rights to indemnification, advancement of expenses or insurance provided by Persons other than the Company Group (“Outside Indemnitors”), (w) the Company Indemnification Obligations are not exclusive of any rights which such Indemnified Persons may have against Outside Indemnitors or may hereafter acquire under any agreement, law, action by the Board or otherwise (collectively, “Supplemental Indemnification Rights”), (x) the Company Indemnification Obligations shall be primary and any Supplemental Indemnification Rights shall be secondary and shall not limit or otherwise affect the Company Indemnification Obligations, (y) the advancement payment by the Outside Indemnitors on behalf of any such Indemnified Person with respect to any claim for which such Indemnified Person has sought indemnification from the Company shall not affect the Company Indemnification Obligations and, in such event, the Outside Indemnitors shall have a right of contribution or be subrogated to the extent of any such advancement or payment to all of the rights of recovery of such Indemnified Person against the Company, and (z) neither the Company nor any provider of insurance to the Company Group shall be entitled to any right to subrogation, contribution or other recovery from any Outside Indemnitor.  The Company and the Members hereby voluntarily, knowingly and irrevocably waive and release the Outside Indemnitors from any claim against the Outside Indemnitors for contribution, subrogation or any other recovery from any Outside Indemnitor.

 

 

(d)          Indemnification of Employees, Agents or Other Persons. The Board may grant any rights comparable to those set forth in Section 5.8(a) to any employee, agent or representative of the Company or such other Persons as the Board may determine, including any employees or agents of the Company who are not or were not Managers or officers of the Company but who are or were serving at the request of the Company as a manager, director, officer, trustee, agent or similar functionary of an entity, enterprise or employee benefit plan.

 

(e)           Insurance. Unless otherwise determined by the Board, the Company shall maintain, or cause to be maintained, insurance, at its or its subsidiaries’ expense, to protect any Indemnified Person against any expense, liability or loss of the nature described in Section 5.8(a) above whether or not the Company would have the power to indemnify such Indemnified Person against such expense, liability or loss under the provisions of this Section 5.8. Each Manager shall be entitled to the same benefits under such insurance as each other Manager. The Company shall ensure that any such insurance policies comply with Section 5.8(f) and Section 5.8(c), including that there be no right of contribution against any provider of Supplemental Indemnification Rights and that providers of Supplemental Indemnification Rights are subrogated to an Indemnified Person’s rights under such insurance policies.

 

(f)           Savings Clause. If this Section 5.8 or any portion hereof shall be invalidated on any ground by any court of competent jurisdiction, then the Company shall nevertheless indemnify and hold harmless each Indemnified Person pursuant to this Section 5.8 to the fullest extent permitted by any applicable portion of this Section 5.8 that shall not have been invalidated and to the fullest extent permitted by applicable law.

 

5.9         Observance of Formalities. Notwithstanding anything contained herein or the Delaware Act to the contrary, the failure of the Company, or any Manager, Member or officer to observe any formalities or procedural or other requirements relating to the exercise of its powers or management of the Company’s business and affairs under this Agreement or the Delaware Act shall not be grounds for imposing personal liability on any of the Members.

 

Article VI
MEMBERS

 

6.1         Admission and Withdrawal of Members.

 

(a)         The K1 Investor and each Person whose name is set forth on the Unit Ownership Ledger that has signed and delivered to the Company a counterpart signature page to this Agreement is hereby admitted to the Company as a Member. After the date hereof, unless otherwise determined by the Board, no Person may be admitted to the Company as a Member unless the Board approves such admission, such Person signs and delivers to the Company a joinder agreeing to be bound by all terms hereof, a unit purchase agreement, in form and substance acceptable to the Board and such other documents, instruments and agreements as the Board may require (together with any Grant Agreement entered into after the date hereof, each an “Equity Agreement”). The admission of a Member shall become effective on the date the Board approves such admission and amends and updates the Unit Ownership Ledger to reflect the same.

 

(b)         Except as otherwise expressly permitted by this Agreement, no Member may withdraw from the Company prior to the dissolution and winding up of the Company without the prior written consent of the Board.

 

 

6.2         Lack of Authority. Except for rights expressly granted hereunder to the K1 Investor, no Member in its capacity as such has the authority or power to act for or on behalf of the Company, to bind the Company, or to take any action that would or could be construed as binding on the Company, or to make any expenditures on behalf of the Company, unless such authority and power has been expressly granted to and not revoked from such Member by the Board or pursuant to this Agreement. The Members hereby consent to the exercise by the Board of the authority and powers conferred on the Board by the Delaware Act and this Agreement.

 

6.3         Members Actions. Except as expressly and specifically provided in this Agreement (e.g., the consent of any Member required under Section 11.2 and the rights of the K1 Investor to approve certain transactions pursuant to Section 5.1(b) or in respect of an Approved Sale pursuant to Section 8.3(a)), the Members hereby waive any right to vote on, consent to or approve any matter or action to the greatest extent permitted by the Delaware Act such that wherever the Delaware Act permits actions to be taken with the vote, consent or approval of Members, any group of Members or class of Members, this Agreement shall be construed to have otherwise provided that such vote, consent or approval may be made by the Board without the vote, consent or approval of any Members, group of Members or class of Members. Any action, approval or consent by the Members (or a subset of Members) expressly required or permitted by this Agreement may be taken (a) at a meeting called by the Board or by Members holding at least a majority of the Units entitled to approve or consent on such matter on at least 24 hours prior written notice to each Member entitled to approve or consent to such matter, which notice shall state the purpose or purposes for which such meeting is being called, or (b) by written consent without a meeting so long as such consent is signed by Members holding at least a majority of all Units entitled to approve or consent to such matter. Any defect in providing notice of any meeting or of any action by written consent may be cured if the affected Members waive such defect. Notwithstanding anything in this Section 6.3 to the contrary, the K1 Investor (to the exclusion of all other Members) shall have the exclusive right to vote on any approval of “parachute payments” pursuant to the shareholder approval exceptions contemplated by §280G and §4999 of the Code in any circumstance under which the income tax regulations promulgated under the Code require such approval to be made by a vote of the Company’s Members.

 

6.4         Waiver of Duties. Each Member hereby acknowledges the elimination of any and all fiduciary duties pursuant to Section 5.6 and hereby waives any right to make a claim or demand or bring a suit or action, and hereby agrees not to make any claim or demand or bring any suit or action, against the Board or any Manager that such Member may have been entitled to make or bring if such fiduciary duties were not so eliminated. To the maximum extent permitted by the Delaware Act and any other applicable law, the K1 Investor shall not owe any fiduciary duties to any other Members, any and all such fiduciary duties being hereby eliminated. Each Member hereby acknowledges the elimination of any and all fiduciary duties pursuant to the immediately preceding sentence and hereby waives and agrees not to make any claim or demand or bring any suit or action against The K1 Investor (or any of its Affiliates, employees, representatives or agents), the Board or any Manager (or any of their respective Affiliates, employees, representatives or agents).

 

6.5         Limitation of Liability. Except as otherwise required by applicable law, the debts, liabilities, commitments and other obligations of the Company, whether arising in contract, tort or otherwise, shall be solely the debts, obligations and liabilities of the Company and no Member shall have any personal liability whatsoever in its capacity as a Member, whether to the Company, to any of the other Members, to the creditors of the Company or to any other Person, for the debts, liabilities, commitments or any other obligations of the Company or for any losses of the Company.

 

6.6         Return of Distributions. The payment or distribution of money or property to a Member shall be deemed to be a compromise within the meaning of the Delaware Act and, unless otherwise agreed in writing by such Member in connection with such payment or distribution, the Member receiving any such money or property shall not be required to return to any Person any such money or property. However, if any court of competent jurisdiction holds that, notwithstanding the provisions of this Agreement, any Member is obligated to return such money or property, such obligation shall be the obligation solely of such Member and not of any other Member or Manager. Notwithstanding the foregoing, a Member will be required to return to the Company any distribution to the extent the Board determines there was a clear and manifest accounting, clerical or other similar error.

 

 

 

6.7         No Right of Partition. The Members hereby knowingly, voluntarily and irrevocably waive any right to seek or obtain partition by court decree or operation of law of any Company assets or property.

 

6.8         Investment Opportunities and Conflicts of Interest. Unless otherwise determined by the Board in writing, each Management Investor shall bring all investment or business opportunities to the Company of which such Management Investor becomes aware and which are, or may reasonably be expected to be (x) within the scope and investment objectives related to the Business or (y) otherwise competitive with the Business. The Members expressly acknowledge and agree that (a) the K1 Investor and its Affiliates (but excluding the Company Group from the definition of “Affiliates” for purposes of this Section 6.8) and its and their respective managers, directors, officers, shareholders, Members, members, employees, representatives and agents (including any representative of the K1 Investor serving on the Board, collectively, the “Specified Persons”) are permitted (i) to have, develop and engage in, and may presently or in the future have, develop and engage in, investments, transactions, business ventures, contractual, strategic or other business relationships, prospective economic advantages or other opportunities (the “Business Opportunities”) in the Business (other than through the Company Group) or in businesses that are and may be competitive or complementary with or to the Company Group, for their own account or for the account of any Person other than the Company Group or any other Member, and (ii) to direct any such Business Opportunities to any other Person, in each case, regardless of whether such Business Opportunities are presented to a Specified Person in such Specified Person’s capacity as a Manager or otherwise, (b) none of the Specified Persons will be prohibited by virtue of their investments in the Company Group or their service as a Manager or service on the Board or otherwise from pursuing and engaging in any such activities or consummating transactions related thereto, (c) none of the Specified Persons will be obligated to inform or present the Company Group or the Board or any other Member of or with any such Business Opportunity and (d) neither the Company Group nor any other Member will have or acquire or be entitled to any interest or expectancy or participation in any Business Opportunity as a result of the involvement therein of any of the Specified Persons. This Section 6.8 shall not in any way affect, limit or modify any liabilities, obligations, duties or responsibilities of any Person under any employment agreement, consulting agreement, confidentiality agreement, restrictive covenant agreement, non-competition agreement, non-solicitation agreement or any similar agreement with the Company Group.

 

6.9         Transactions with the Company. The Company may transact business with any Manager, Member or officer or any Affiliate thereof; provided, that the Company shall not enter into any agreement with any such Person that is not on arms’-length terms without the prior written consent of the Board.

 

 

 

6.10        Confidentiality.

 

(a)           Subject to the last sentence of this Section 6.10(a), each Restricted Investor acknowledges that such Restricted Investor has and may in the future receive certain trade secrets and other confidential or proprietary information of the Company Group (including any predecessors thereof) (collectively, “Confidential Information”). Except as otherwise consented to by the Board in writing, each Restricted Investor (on behalf of itself and, to the extent applicable, its managers, directors, officers, shareholders, Members, employees, agents and members to the extent that such Restricted Investor would be responsible under principles of agency law for the acts of such Persons) agrees that such Restricted Investor shall not, during or after the term of this Agreement, use or disclose to any Person Confidential Information for any reason or purpose, except for disclosure (i) in respect of a Restricted Investor that is an employee of the Company Group, to any other employee, representative or agent of the Company Group and as otherwise may be proper in the course of performing such Restricted Investor’s obligations, or enforcing such Restricted Investor’s rights, under this Agreement or (ii) as is required to be disclosed by order of a court of competent jurisdiction, administrative body or governmental body, or by subpoena, summons or legal process, or by law, provided that the Restricted Investor required to make such disclosure shall (A) provide to the Company prompt written notice of such disclosure to enable the Company to seek an appropriate protective order or confidential treatment and (B) use such Restricted Investor’s commercially reasonable efforts to obtain, at the request and expense of the Company, an order or other assurance that confidential treatment shall be accorded to such portion of the Confidential Information required to be disclosed as the Company shall designate. For purposes of this Section 6.10, the term “Confidential Information” shall not include any information of which at the time of disclosure is in the public domain other than as a result of disclosure directly or indirectly by such Restricted Investor. Nothing in this Section 6.10 shall in any way limit or otherwise modify any other non-disclosure or non-use obligations between a Restricted Investor and the Company Group.

 

(b)          The Management Investors acknowledge and agree that the ownership of Units by a Management Investor is sensitive and constitutes Confidential Information and that information regarding the individual ownership of the Company by Management Investors relates to such Management Investor’s compensation as an employee of the Company Group, including the terms governing such Management Investor’s ownership of Units. Therefore, notwithstanding anything in this Agreement or any Equity Agreement to the contrary, in no event shall any Management Investor have the right, and each Management Investor hereby knowingly, voluntarily and irrevocably waives any right, whether by contract or under applicable law, to the fullest extent of the law, to request, access or receive any information with respect to what Units are, or have been, issued to or held by any other Management Investor or the terms relating to such Units, including the Unit Ownership Ledger and the amount of any Capital Contributions or Distributions made with respect to such Units; provided that nothing in this Section 6.10(b) shall prohibit any Management Investor from receiving a capitalization schedule showing (i) the number of each class of Units held by the K1 Investor or any other Member that is not a Management Investor, (ii) the aggregate number of each class of Units held by the Management Investors and other advisors of the Company Group collectively as a group, (iii) the aggregate number of each class of Units outstanding as of any particular date and (iv) the number and class of Units held by such Management Investor.

 

6.11          Information Rights. The Company shall deliver to Restricted Investors (a) all information deemed by the Board to be reasonably necessary for such Restricted Investors to comply with their respective tax reporting obligations, including any obligations of such Persons set forth in Article VII, and (b) upon written request by any Restricted Investor, within 180 days following such statements being finalized in any fiscal year, a copy in electronic form of the audited, consolidated annual financial statements of the Company and its subsidiaries for the most recently completed fiscal year.

 

Article VII
TAX MATTERS

 

7.1         Preparation of Tax Returns. The Company shall arrange for the preparation and timely filing of all tax returns required to be filed by the Company, including making the elections described in Section 7.2. Each Member shall furnish to the Company all pertinent information in its possession or reasonably available to it relating to Company assets or operations that is necessary to enable the Company’s tax returns to be prepared and filed.

 

 

7.2         Tax Elections. The Members intend for the Company to be treated as a C corporation for federal and, if applicable, state and local income tax purposes (and the Board shall cause the Company to timely file an Internal Revenue Service Form 8832 to that effect), and each Member and the Company shall file all tax returns and shall otherwise take all tax and financial reporting positions in a manner consistent with such treatment. The taxable year shall be the fiscal year unless the Board shall determine otherwise. The Board shall determine whether to make or revoke any available election pursuant to the Code or pursuant to any provision of state, local and foreign tax law. On request by the Company, each Member will promptly provide any information necessary to give proper effect to such election.

 

7.3         Tax Administration.

 

(a)           Notwithstanding anything to the contrary in this Agreement, if the Company or any of its subsidiaries is obligated to pay any amount to a governmental agency or body or any other Person (or otherwise makes a payment) because of a Member's status as such or otherwise specifically attributable to a Member (including any federal, state, local or foreign withholding, personal property, personal property replacement, unincorporated business taxes or other taxes), then such Member (the "Reimbursing Member") shall reimburse the Company in full for the entire amount paid (including any interest, penalties and expenses associated with such payment). Promptly on notification of an obligation to reimburse the Company, the Reimbursing Member shall make a cash payment to the Company equal to the full amount to be reimbursed (and the amount paid shall not be deemed to be a Capital Contribution hereunder). Except to the extent actually reimbursed in cash by a Reimbursing Member pursuant to this Section 7.3, (x) any amount of taxes paid by the Company or any of its subsidiaries, (y) any taxes withheld by the Company and (z) any withholding or similar taxes imposed on amounts payable to the Company shall in each case be treated for purposes of this Agreement as an amount actually distributed to the applicable Members with respect to which such taxes were paid or withheld by the Company or any of its subsidiaries pursuant to Section 4.1 at the time paid or withheld (and the amount of any such tax shall be deemed to have been distributed to such Members as the Board, in its reasonable discretion, may determine). A Reimbursing Member's obligation to make reimbursements to the Company under this provision shall survive the transfer of such Reimbursing Member’s interest in the Company or the dissolution, liquidation, winding-up and termination of the Company, and to the maximum extent not prohibited by applicable law, for purposes of this provision, the Company shall be treated as continuing in existence. The Company may pursue and enforce all rights and remedies it may have against each Member under this provision, including (i) instituting a lawsuit to collect such contribution with interest calculated at an annual compounded rate equal to the variable rate per annum equal to the rate of interest most recently published by The Wall Street Journal as the "prime rate" at large U.S. money center banks plus six hundred basis points per annum (but not in excess of the highest rate per annum permitted by law as determined by the Board) and (ii) offsetting Distributions to which a Member is otherwise entitled under this Agreement against such Member's obligation to reimburse the Company under this Section 7.3(a) or with respect to any other amounts owed by such Member to the Company Group. For purposes of this Section 7.3(a), the terms "Member" and "Reimbursing Member" shall include any prior Members of the Company.

 

(b)          Tax Forms. Each Member shall prepare, sign, acknowledge, file, record, publish and deliver such other information, instruments, documents, tax forms and statements (including any information in relation to any tax or Foreign Account Reporting Requirements) requested by the Board and to take such other actions as may be necessary, advisable or appropriate to enable the Board to effectively carry out the purposes of the Company and this Agreement.

 

 

Article VIII
TRANSFERS, TAG-ALONG RIGHTS AND SALE TRANSACTION

 

8.1         Transfer Restrictions.

 

(a)           Generally. Without the prior written consent of the K1 Investor and the Board, no Restricted Investor may Transfer its Membership Interest, LLC Interest or any of its Units; provided that a Management Investor may Transfer Units to a Permitted Transferee after providing 10 business days’ prior written notice thereof to the Board so long as, in connection therewith, the written documentation evidencing such Transfer is reasonably acceptable to the Company and includes the express agreement by such Permitted Transferee and the Management Investor transferring such Units that if such Permitted Transferee ceases to be a Permitted Transferee of such Management Investor, then such Permitted Transferee will, prior to ceasing to be a Permitted Transferee, Transfer such Units back to such Management Investor; provided further that, notwithstanding the definition of Permitted Transferee, no Management Investor may Transfer any Units to a Person that the Board reasonably determines is a competitor or a potential competitor (or any Person who has any direct or indirect interest in any such competitor or potential competitor) of the Company Group.

 

(b)          No Avoidance through Indirect Transfers. Each Restricted Investor that is not a natural person (i) shall take such action as necessary to prohibit and prevent the direct or indirect Transfer of all or any portion of the direct or indirect equity or beneficial interest in such Restricted Investor or any Person holding an interest in such Restricted Investor (whether through Transfers or issuances of its own equity, whether by operation of law, by merger or consolidation of such holder into another entity or dissolution or liquidation of such Person or otherwise) and (ii) shall not seek to avoid the provisions of this Agreement by issuing, or permitting the issuance of, any direct or indirect equity or beneficial interest in such Member, in the case of the foregoing clauses (i) and (ii), in a manner which would fail to comply with this Article VIII if such Member had Transferred Units directly.

 

(c)           Void Transfers. Any purported Transfer in contravention of this Agreement shall be null and void ab initio and ineffective for all purposes and shall not bind or be recognized by, or recorded on the books of, the Company, and any purported transferee or assignee in such transaction shall not be treated as, or be deemed to be, a Member, a transferee, an assignee or holder of Units for any purpose or have any rights hereunder.

 

(d)          Admission as a Member. Pursuant to a Transfer of Units permitted by and in accordance this Article VIII and any Equity Agreement (if applicable), subject to the satisfaction of the conditions precedent to such Transfer, including the delivery of a duly signed joinder, the transferee shall become a Member on the date on which the Board approves such transferee as a Member and amends and updates the Unit Ownership Ledger to reflect the same.

 

8.2         Tag-Along Rights. If the K1 Investor desires to sell or otherwise dispose of Units at any time (other than pursuant to an Exempt Transfer), and the effect of such sale or other disposal, if completed, would be that the K1 Investor is no longer, in the aggregate, the beneficial owner, directly or indirectly through one or more intermediaries, of Units representing more than 50% of the Total Equity Value, then the K1 Investor shall provide each Restricted Investor with reasonable prior written notice thereof (which notice shall include the estimated per Unit consideration, the date by which such Restricted Investor must elect to participate and other material terms of such sale or other disposal that the K1 Investor deems relevant) and the opportunity (to be exercised by such Restricted Investor in writing delivered to the K1 Investor prior to such date) to participate in and sell or otherwise dispose of such Restricted Investor’s pro rata share of the Units being sold or otherwise disposed of by the K1 Investor (based on the number of Units held by such Restricted Investor relative to the aggregate number of Units held by all Members) for the same amount and kind of consideration received by the K1 Investor. To the extent requested by the K1 Investor in connection with such sale or other disposal, such Restricted Investor shall sign and deliver any customary agreements and other documentation; provided that any indemnity obligations shall be on a Pro Rata Basis and limited in amount to no more than the sale or other disposal proceeds actually received by such Restricted Investor.

 

 

8.3         Approved Sale.

 

(a)           Approved Sale. If either (i) the Board and the K1 Investor or (ii) the K1 Investor (independently of the Board) approve a Sale Transaction (an “Approved Sale”), each Member, in its capacity as such, shall raise no objections against, and not otherwise hinder, impede, delay or take any action that could cause any adverse effect on, such Approved Sale. If the Approved Sale is structured as a (x) merger or consolidation and the waiver by the Members pursuant to Section 11.12 and Section 6.3 of any right to vote on, consent to or otherwise approve any actions that under the Delaware Act such Members would have been entitled to vote on, consent to or otherwise approve in the absence of such waiver, is or becomes invalid or unenforceable under the Delaware Act or is determined by a court of competent jurisdiction to be invalid or unenforceable, then each Member shall vote for, consent to and, to the extent applicable under the laws governing such transaction, waive any dissenters rights, appraisal rights or similar rights in connection with such merger or consolidation or (y) sale of Units, each Member shall agree to Transfer, and shall Transfer, all (or such lesser portion reflecting such Person’s proportionate interest in the aggregate portion of the Total Equity Value being sold in such Approved Sale) of such Member’s Units on the terms of the Sale Transaction approved by the Board and the K1 Investor acting together or the K1 Investor acting alone, as the case may be. Each Member shall take all necessary or customary actions, and the receipt of any proceeds of such Approved Sale shall be conditioned on the taking of such actions, in connection with the consummation of the Approved Sale (whether in such Person’s capacity as a Member, Manager, officer or otherwise) as reasonably requested by the Board and the K1 Investor acting together or the K1 Investor acting alone, as the case may be (including signing and delivering any and all agreements, instruments, consents, waivers and other documents in substantially the same forms signed by the K1 Investor and any other customary agreements and documentation, including any applicable purchase agreement and, solely with respect to Management Investors, attending presentations, cooperating in facilitating the sale process and providing information reasonably requested by potential acquirers, in each case, on the terms of which shall be determined by the Board); provided, that notwithstanding the foregoing, no Member shall be required to make any representations and warranties other than customary “fundamental” representations and warranties relating to such Member’s status as a holder and seller of Units, including in respect of such Member’s unencumbered title to its Units, its power, authority and legal right to Transfer its Units, and the enforceability against such Member of agreements to which such Member is a signatory. In furtherance of the waivers set forth in this Agreement, in connection with any Approved Sale, each Member hereby irrevocably waives all claims, including any claims for breach of any duty arising out of or related to any Approved Sale, including claims relating to the fairness of the Sale Transaction, the price paid for Units or assets of the Company in such Approved Sale, the process or timing of such Sale Transaction or any similar claims arising from the Sale Transaction. Subject to Section 8.3(b), the obligations of the Members pursuant to this Section 8.3(a) shall not in any way be limited or otherwise affected by the amount, nature, form or terms of the consideration to be paid in any Approved Sale, even if such Approved Sale results in no consideration being paid or payable to such Member.

 

(b)          Conditions. The obligations of the Members with respect to an Approved Sale are subject to the satisfaction of the following conditions: (i) the consideration payable on consummation of such Approved Sale to all Members shall be allocated among the Members based on the Pro Rata Share represented by the Units sold by such Member pursuant to such Approved Sale (as determined by the Board treating the Units sold pursuant to the Approved Sale as the only Units outstanding for the purposes of determining each such Unit’s Pro Rata Share) and (ii) on the consummation of the Approved Sale, all of the Members holding a particular class of Unit shall receive (or shall have the option to receive) the same form of consideration for such class of Unit; provided, however, that the condition that each Member is provided with the same option to receive the same form of consideration set forth above shall be deemed satisfied even if (x) any Management Investor receives additional consideration in the form of salary, bonus or other management consideration for entering into employment or similar arrangements in favor of an acquiror, (y) any Management Investor elects to receive securities of the acquiror or any of its Affiliates or (z) certain Members (other than the Management Investors) elect to receive securities of the acquiror or any of its Affiliates, so long as such election is available to all Members holding the same class of Units and so long as each holder of the same class of Units receives the same amount of value, whether in cash or such securities, as of the closing of such Approved Sale with respect to such holder’s Units of such class; provided further, that, in the event that any securities are part of the consideration payable to the Members, if a Member is not an “accredited investor” (as such term is defined under the Securities Act) or the receipt of such securities might have an adverse effect on such Approved Sale, then the Board may cause such Member to receive, and each such Member hereby agrees to accept, in lieu of such securities, cash consideration equal to the fair market value of such securities as of the closing of such Approved Sale.

 

 

(c)           Indemnification; Expenses. The Members shall be obligated to join (severally but not jointly, and on a Pro Rata Basis) in any indemnification obligation the Board and the K1 Investor acting together or the K1 Investor acting alone, as the case may be, have agreed to be bound by in connection with such Approved Sale (including any such obligations that relate specifically to a particular Member, such as indemnification with respect to representations and warranties given by a Member regarding such Member’s title to and ownership of Units); provided that any escrow or holdback of proceeds of any such transaction shall be withheld on a Pro Rata Basis among all Members; provided, further, that (i) in respect of representations that are specific to a Member (e.g., ownership of Units), no Member will be required to make such Member-specific representations about other Members or indemnify a buyer in respect thereof and (ii) no Member shall be obligated in connection with an Approved Sale to agree to indemnify any party with respect to an amount in excess of the cash proceeds actually received by such Member in connection with such Approved Sale. Each Member shall enter into any indemnification or contribution or other agreement reasonably requested by the Board and the K1 Investor acting together or the K1 Investor acting alone, as the case may be, to ensure compliance with this Section 8.3(c). Each Member shall pay its share determined on a Pro Rata Basis of the expenses incurred by the K1 Investor and its Affiliates pursuant to an Approved Sale to the extent such expenses are incurred for the benefit of all Members (including the costs and expenses (including reasonable attorneys’ fees and expenses) incurred in connection with enforcing or implementing the terms and provisions of this Section 8.3(c)). Expenses incurred by any Member on such Member’s own behalf (including the fees and disbursements of counsel, advisors and other Persons retained by such Member in connection with the Approved Sale) will not be considered costs incurred for the benefit of all Members and, to the extent not paid by the Company, will be the responsibility of such Member.

 

(d)          Purchaser Representative. If the Company or the K1 Investor enters into any negotiation or transaction for which Rule 506 (or any similar rule then in effect) promulgated by the Securities and Exchange Commission may be available with respect to such negotiation or transaction (including a merger, consolidation or other reorganization), the other Members shall, at the request of the Company or the K1 Investor, as the case may be, appoint a “purchaser representative” (as such term is defined in Rule 501 promulgated under the Securities Act) designated by the Company and reasonably acceptable to the K1 Investor. If any Member so appoints a purchaser representative, the Company shall pay the fees of such purchaser representative. However, if any Member declines to appoint the purchaser representative designated by the Company, such Member shall appoint another purchaser representative (reasonably acceptable to the Company and the K1 Investor), and such Member shall be responsible for the fees of the purchaser representative so appointed.

 

(e)           No Grant of Dissenters Rights or Appraisal Rights. In no manner shall this Section 8.3 be construed to grant to any Member any dissenters rights or appraisal rights or give any Member any right to vote in any transaction structured as a merger or consolidation (it being understood that the Members have waived any rights under Section 18-210 of the Delaware Act pursuant to Section 11.12). Each Member expressly grants to the Board and the K1 Investor acting together or the K1 Investor acting alone, as the case may be, the sole right to approve or consent to a Sale Transaction (or other merger or consolidation involving the Company) without approval or consent of the Members. The K1 Investor shall, in its sole discretion, decide whether or not to pursue, consummate, postpone or abandon any Approved Sale and the terms thereof. Neither the K1 Investor nor any of its Affiliates shall have any liability to any other Member arising from, relating to or in connection with the pursuit, consummation, postponement, abandonment or terms of any such Approved Sale.

 

 

(f)           Failure to Comply. If any Member fails to comply with the provisions of this Section 8.3, such Person: (i) will not be entitled to the consideration that such Person would otherwise receive in the Approved Sale until such Person cures such failure; provided that, after curing such failure, such Person will be so entitled to such consideration without interest; (ii) will be deemed, for all purposes, no longer to be a Member of the Company; (iii) will not be entitled to any distributions after the Approved Sale with respect to Units held by such Person; (iv) will have no other rights or privileges granted to Members under this Agreement or any future agreement; and (v) in the event of liquidation of the Company, such Person’s rights with respect to any consideration that such Person would have received if such Person had complied with this Section 8.3, if any, will be subordinate to the rights of all other Members.

 

8.4         Transfer Fees and Expenses. Except as provided in Section 8.3 and unless otherwise determined by the Board, the transferor and transferee of any Units shall be jointly and severally obligated to pay all reasonable expenses (including attorneys’ fees and expenses) incurred by the Company or any of its Affiliates in connection with any Transfer or proposed Transfer, whether or not such proposed Transfer is consummated. Nothing contained herein shall relieve any transferor of Units from any liability of such transferor to the Company or the other Members with respect to such Units that may exist on the date such Units are transferred or that is otherwise specified in the Delaware Act and incorporated into this Agreement or for any liability to the Company or any other Person or for any breaches of any representations and warranties or covenants or other obligations by such transferor (in its capacity as a Member) contained herein or in any other agreement with the Company Group or its Affiliates.

 

Article IX
REPURCHASE

 

9.1         Repurchase Provisions. Except as otherwise set forth in any Equity Agreement, any Equity Plan or any other plan governing any certain class of Units, the Units issued to a Management Investor shall be subject to the following repurchase provisions:

 

(a)           Repurchase Right. At any time following the termination of a Management Investor’s employment or engagement for any reason, the Company shall have the right to repurchase all or any portion of the Units issued to such Management Investor.

 

(b)          Repurchase Notice. The Company may elect to exercise its right to repurchase Units issued to Management Investors by notifying such Management Investor in writing of the aggregate number of Units the Company is repurchasing, the aggregate purchase price therefor, the contemplated date of such repurchase and any other material terms of such repurchase, which notification shall be deemed made by delivery to such Management Investor of a repurchase agreement setting forth such terms.

 

(c)           Purchase Price. The purchase price for any Units repurchased pursuant to Section 9.1(a) shall be the fair market value of such Units as of the date of the repurchase notice as conclusively determined by the Board; provided, that in the event (i) a Management Investor’s employment or engagement is terminated for Cause or (ii) the Board determines that such Management Investor has breached any non-disclosure, non-compete, non-solicitation, non-disparagement, confidentiality, invention assignment, work product, work-for-hire, intellectual property protection or assignment or other restrictive covenants between such Management Investor and the Company Group, in addition to and without limiting any other rights, damages or remedies the Company Group may have or be entitled to in connection with such breach, the purchase price for such Units shall be the lower of (x) the original cost thereof as set forth in the Equity Agreement pursuant to which such Units were originally issued and (y) the fair market value thereof as conclusively determined by the Board as of the date of the repurchase notice. The aggregate purchase price of any Units repurchased from a Management Investor pursuant to Section 9.1(a) shall be reduced by any amounts owed by such Management Investor to the Company Group (including any amounts owed under any promissory note issued by such Management Investor to the Company Group and any amounts advanced or loaned to such Management Investor by the Company Group).

 

 

(d)          Documentation. On or prior to the date of the repurchase, the Management Investor shall sign and deliver to the Company documentation effectuating the repurchase as reasonably requested by, and in a form reasonably acceptable to, the Company. Such documentation shall include a repurchase agreement that includes assignment powers, customary representations and warranties in favor of the Company Group, a general release of the Company Group Persons and an acknowledgement of such Management Investor’s continuing obligations under this Agreement, any Equity Plan and any other agreement with the Company Group, in each case, as applicable.

 

(e)           Consideration. In respect of any repurchase pursuant to Section 9.1(a), the Company may pay (or cause to be paid) the net purchase price for the Units being repurchased from a Management Investor by check or wire transfer of immediately available funds or by issuing (or causing a subsidiary to issue) a promissory note bearing simple interest (payable at maturity) at a rate equal to the prime rate, which note shall mature and be payable on the earlier of the consummation of a Sale Transaction and the date that is the third anniversary of the closing of such repurchase (or by any combination of the foregoing). The Company may assign all or any portion of its rights to purchase Units under this Article IX to the K1 Investor or any Person consented to in writing by the K1 Investor and may effectuate the repurchase of Units through any of its subsidiaries (including through a distribution of equity interests in any such subsidiary followed by a repurchase of such equity interests).

 

(f)           Deemed Repurchase. If the Company (or its assignee) shall make available to such Management Investor the consideration for the Units to be purchased in accordance with this Section 9.1 (including by depositing such amount into an escrow account), then from and after such time, such Management Investor shall no longer have any rights as a Member or holder of such Units and such Units shall be deemed purchased in accordance with this Section 9.1 whether or not the documentation required to be signed and delivered by such Management Investor pursuant to Section 9.1(d) has actually been signed or delivered.

 

9.2         Restrictions and Remedies. Any repurchase of Units under Section 9.1 is subject to applicable restrictions and limitations contained in the Delaware Act, the Delaware General Corporation Law or such other applicable governing law and in the Company Group’s debt and equity financing agreements, in each case, at the time of repurchase. The Company and each Management Investor shall be entitled to enforce its rights under this Article IX specifically (without posting a bond or other security) to recover damages by reason of any breach of this Article IX and to exercise all other rights granted by law (and the pursuit of one remedy shall not preclude the pursuit of any other remedy, it being understood that a grant of specific performance or other equitable relief shall not preclude or limit the collection of damages).

 

Article X
DISSOLUTION AND LIQUIDATION

 

10.1          Dissolution. The Company shall continue in existence until the Board determines that the Company shall be dissolved and its affairs be wound up or the Company is dissolved pursuant to Section 18-802 of the Delaware Act. Neither the admission of a new Member nor the death, retirement, resignation, expulsion, bankruptcy or dissolution of a Member, or the occurrence of any other event that terminates the continued membership of a Member in the Company, shall cause a dissolution of the Company.

 

 

10.2          Liquidation and Termination. On the dissolution of the Company, the Board or its designee shall act as liquidator or may appoint one or more representatives, Members or other Persons as liquidators. The liquidators shall proceed diligently to wind up the affairs of the Company and make final distributions as provided herein and in the Delaware Act. The costs of liquidation shall be borne as the Company’s expense. Until final distribution, the liquidators shall continue to operate the Company properties with all of the power and authority of the Board. The steps to be accomplished by the liquidators are as follows:

 

(a)           The liquidators shall pay, satisfy or discharge from the Company’s funds all of the debts, liabilities and obligations of the Company (including all expenses incurred in liquidation) or otherwise make adequate provision for payment and discharge thereof (including the establishment of a cash fund for contingent liabilities in such amount and for such term as the liquidators may reasonably determine).

 

(b)          As promptly as practicable after dissolution, the liquidators shall (i) determine the fair market value (the “Liquidation FMV”) of the Company’s remaining assets (the “Liquidation Assets”), (ii) determine the amounts to be distributed to each Member as set forth below in Section 10.2(c) and (iii) deliver to each Member a statement (the “Liquidation Statement”) setting forth the Liquidation FMV and the amounts and recipients of such Distributions, which Liquidation Statement shall be final and binding on all Members (absent manifest error).

 

(c)           As soon as the Liquidation FMV and the proper amounts of Distributions have been determined in accordance with Section 10.2(b) above, the liquidators shall promptly distribute the Company’s Liquidation Assets to the holders of Units in accordance with Section 4.1. In making such distributions, the liquidators shall allocate each type of Liquidation Asset among the Members ratably based on the aggregate amounts to be distributed with respect to the Units held by each such holder; provided that the liquidators may allocate each type of Liquidation Asset so as to give effect to and take into account any relative priorities of the different Units; provided further that, in the event that any securities are part of the Liquidation Assets, each Member that is not an “accredited investor” as such term is defined under the Securities Act may, in the sole discretion of the liquidators, receive, and agrees to accept, in lieu of such securities, cash consideration with an equivalent value to such securities as determined by the liquidators. The distribution of Liquidation Assets to a Member in accordance with the provisions of this Section 10.2 constitutes a complete return to the Member of its Capital Contributions and a complete distribution to the Member of its LLC Interest in the Company and all the Company property and constitutes a compromise to which all Members have consented within the meaning of the Delaware Act. If a Member returns funds to the Company, then such Member shall have no claim against any other Member for those funds.

 

(d)          To the extent that equity securities of any subsidiary are distributed to any Members, and unless otherwise agreed to by the liquidators and the K1 Investor, such Members hereby agree to enter into a securityholders agreement with such subsidiary and each other Member receiving such securities which contains rights and restrictions in form and substance similar to the provisions and restrictions set forth herein (including in Article V and Article VIII).

 

(e)           On completion of the distribution of the Liquidation Assets as provided herein, the liquidators shall file a certificate of cancellation with the Secretary of State of Delaware, cancel any other filings made pursuant to this Agreement that should be canceled, and take such other actions as may be necessary to terminate the Company.

 

 

(f)           A reasonable time shall be allowed for the orderly winding up of the business and affairs of the Company and the liquidation of its assets pursuant to this Section 10.2 in order to minimize any losses otherwise attendant on such winding up.

 

10.3          Liability of Liquidators. The liquidators shall not be personally liable for the return of Capital Contributions or any portion thereof to the Members (it being understood that any such return shall be made solely from the Company assets).

 

10.4          Hart-Scott-Rodino. In the event the Hart-Scott-Rodino Antitrust Improvements Act of 1976 is applicable to any Member, the dissolution of the Company shall not be consummated until such time as the applicable waiting period (and extensions thereof) thereunder have expired or otherwise been terminated with respect to each such Member.

 

Article XI

GENERAL PROVISIONS

 

11.1          Power of Attorney. Each Member constitutes and appoints the Board and the liquidators (if any), as applicable, and their respective designees, with full power of substitution, as such Member’s true and lawful agent and attorney-in-fact, with full power and authority in such Member’s name, place and stead, to sign, swear to, acknowledge, deliver, file and record in the appropriate public offices (to the same extent such Member could take such action) (a) this Agreement, all certificates and other instruments or documents and all amendments hereof or thereof in accordance with the terms hereof which the Board deems appropriate or necessary to form, qualify or continue the qualification of the Company as a limited liability company in the State of Delaware and in all other jurisdictions in which the Company may conduct business or own property or as otherwise permitted herein; (b) all agreements, certificates and other instruments and documents which the Board deems appropriate or necessary to reflect any amendment, modification or restatement of this Agreement in accordance with its terms; (c) all conveyances and other instruments or documents which the Board or the liquidators deem(s) appropriate or necessary to reflect the dissolution and liquidation of the Company pursuant to the terms of this Agreement, including a certificate of cancellation; (d) all instruments relating to the admission, withdrawal or substitution of any Member; and (e) all agreements and other instruments and documents requested by the Board or the K1 Investor in connection with an Approved Sale pursuant to Section 8.3 or pursuant to 0. The foregoing power of attorney is irrevocable and coupled with an interest, and shall survive the death, disability, incapacity, dissolution, bankruptcy, insolvency or termination of any Member and the Transfer of all or any portion of such Member’s Units and shall extend to such Member’s heirs, successors, assigns and personal representatives.

 

11.2          Amendments. The Board may amend this Agreement without the consent of any Member as provided in this Agreement, and otherwise with the prior written consent of the K1 Investor, and such amendment shall be binding on all Members as if such Members had expressly consented thereto; provided, that if any amendment would materially and adversely affect (a) the economic rights of the Class B Units in a disproportionate manner to the economic rights of the Class A Units or (b) the rights of the Restricted Investors in Section 8.2 (Tag-Along Rights), Section 8.3 (Approved Sale), Article IX (Repurchase), or this Section 11.2 (Amendments), then such amendment shall require the prior written consent of the Restricted Investors holders of a majority of such Class B Units (such consent not to be unreasonably withheld, conditioned or delayed).

 

 

11.3          Third Party Beneficiaries; Creditors; Successors and Assigns. This Agreement is for the benefit of the Members and (except for the K1 Investor, the Managers, the Indemnified Persons and the Outside Indemnitors, each of whom is a third party beneficiary of this Agreement for purposes of enforcing the rights to which such Persons are entitled hereunder) may be enforced only by the Members and the Company (through the Board) and nothing in this Agreement is intended to, nor does it, confer any benefits on, or create any rights or remedies in favor of, any other Person. Without limiting the foregoing, none of the provisions of this Agreement shall be for the benefit of or enforceable by any creditors of the Company Group or any of its Affiliates, and no creditor who makes a loan to the Company Group or any of its Affiliates may have or acquire (except pursuant to the terms of a separate agreement signed by the Company Group or such Affiliate in favor of such creditor) at any time as a result of making the loan any direct or indirect interest in the Company’s profits, losses, distributions, capital or property other than its rights as a secured creditor expressly set forth in such a separate written agreement. This Agreement shall bind and inure to the benefit of the successors, permitted transferees, heirs, executors, administrators and legal representatives of the Members.

 

11.4          Remedies. Subject to Section 11.3, any Person having any rights under this Agreement shall be entitled to enforce such rights specifically (without posting a bond or other security), to recover damages by reason of any breach of this Agreement and to exercise all other rights granted by law.

 

11.5          Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, illegal or unenforceable under any applicable law or rule in any jurisdiction, then such invalidity, illegality or unenforceability will not affect any other provision hereof or the effectiveness or validity of any such provision in any other jurisdiction, and this Agreement will be reformed, construed and enforced in such jurisdiction as if such invalid, illegal or unenforceable provision had never been contained herein or, if such term or provision could be drawn more narrowly so as not to be illegal, invalid, prohibited or unenforceable in such jurisdiction, it shall be so narrowly drawn, as to such jurisdiction, without invalidating the remaining provisions of this Agreement or affecting the legality, validity or enforceability of such provision in any other jurisdiction.

 

11.6          Descriptive Headings; Interpretation. The descriptive headings of this Agreement are inserted for convenience only and do not constitute a substantive part of this Agreement. The use of the word “including” in this Agreement shall be by way of example rather than by limitation. The phrase “at any time” shall be deemed to be followed by the words “and on one or more occasions” and the phrase “from time to time” shall be interpreted to mean “at any time and on one or more occasions.” Reference to any agreement, document or instrument means such agreement, document or instrument as amended or otherwise modified from time to time in accordance with the terms thereof, and if applicable hereof. Where this Agreement states that a Person “shall,” “will” or “must” perform in some manner or otherwise act or omit to act, it means such Person is legally obligated to do so in accordance with this Agreement. The word “breach” means (x) in the context of a breach of a representation and warranty, such representation and warranty was not true and correct when made and (y) in the context of a breach of a covenant or other obligation by a Person, that such Person has not complied with or performed such covenant or other obligation. Any reference to a statute is deemed also to refer to any amendments or successor legislation as in effect at the relevant time and any reference to any law includes the rules and regulations promulgated thereunder. Where specific language is used to clarify by example a general statement contained herein, such specific language shall not be deemed to modify, limit or restrict in any manner the construction of the general statement to which it relates. Whenever required by the context, references to a fiscal year shall refer to a portion thereof. The use of the words “or,” “either” and “any” shall not be exclusive. The parties hereto have participated jointly in the negotiation and drafting of this Agreement. In the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties hereto, and no presumption or burden of proof shall arise favoring or disfavoring any party hereto by virtue of the authorship of any of the provisions of this Agreement. Wherever a conflict exists between this Agreement and any other agreement, this Agreement shall control but solely to the extent of such conflict. Whenever in this Agreement the Board is required or permitted to take any action or to make a decision or determination, the Board shall take such action or make such decision or determination in its sole and absolute discretion and shall not be subject to any other or different standard and such action, decision or determination shall be final, conclusive and binding as to all the Members. Whenever in this Agreement the K1 Investor is permitted or required to take any action or to make a decision or determination, the K1 Investor shall take such action or make such determination in its sole discretion and shall not be subject to any other or different standards. Except as set forth in an Equity Agreement, no Restricted Investor shall have any right to participate in, challenge or reject any determination made by the Board as to the fair market value of any Units or the methodology or process by which such determination was made by the Board. Where a forfeiture, termination, cancellation, removal from the Board or other consequence happens “automatically,” such forfeiture, termination, cancelation, removal from the Board or other consequence shall be effective on the occurrence of the applicable event and shall not require any further action by any Person. When determining the Total Equity Value or fair market value of any Unit for purposes of the repurchase provisions set forth in Article IX of this Agreement or any Equity Agreement, the Board, or any independent third party accounting firm, as applicable, may take into consideration any factors it deems relevant, may rely on customary valuation techniques applicable to private companies, including discounted cash flow analysis, comparable transactions analysis and comparable companies analysis and may engage and rely on third party advisors and firms with experience in valuing private companies.

 

 

11.7          Governing Law; Choice of Law; Dispute Resolution. The law of the state of Delaware shall govern all claims, controversies or matters related to or arising from this Agreement (including any tort or non-contractual claims) and any questions concerning the construction, interpretation, validity and enforceability of this Agreement, and the performance of the obligations imposed by this Agreement, in each case without giving effect to any choice-of-law or conflict-of-law rules or provisions (whether of the state of Delaware or any other jurisdiction) that would cause the application of the law of any jurisdiction other than the state of Delaware. The Company and each Member hereby waives all rights to trial by jury in any action, suit or proceeding brought to resolve any dispute between or among the Members or between the Company and certain Members (whether arising in contract, tort or otherwise) arising out of, connected with, related or incidental to this Agreement, the transactions contemplated hereby or the relationships established among the parties hereto hereunder. Except with respect to claims for specific performance or injunctive or other equitable relief, and except as provided in the last sentence of this Section 11.7, all actions, proceedings, disputes, matters or claims related to or arising from this Agreement shall be heard and determined strictly in accordance with the terms and procedures set forth in Exhibit A as the sole and exclusive procedure for the resolution of any such action, proceeding, dispute, matter or claim, and no action, proceeding, dispute, matter or claim related to or arising from this Agreement may be brought in any court, forum, venue, tribunal or jurisdiction except for such court, forum, venue, tribunal or jurisdiction explicitly provided for in Exhibit A. A final judgment in any proceeding so brought in accordance with the terms and procedures set forth in Exhibit A shall be conclusive and may be enforced by suit on the judgment or in any other manner provided by law or at equity.

 

11.8          Addresses and Notices. All notices, demands or other communications to be given or delivered under or by reason of the provisions of this Agreement shall be in writing and shall be deemed to have been given or made when (a) delivered personally to the recipient, (b) emailed to the recipient (with hard copy sent to the recipient by reputable overnight courier service (charges prepaid) that same day) if emailed before 6:00 p.m. Pacific Time on a business day, and otherwise on the next business day, or (c) one business day after being sent to the recipient by reputable overnight courier service (charges prepaid). Such notices, demands and other communications shall be sent to the address for such recipient set forth in the Company’s books and records, or to such other address or to the attention of such other person as the recipient party has specified by prior written notice to the sending party. Any notice to the Board or the Company shall be deemed given if received by any K1 Manager at the principal office of the Company.

 

 

11.9          Waiver. No failure by any Person to insist on the strict performance of any covenant or other obligation in this Agreement or to exercise any right or remedy in connection therewith shall constitute a waiver of any right or remedy or any other covenant or other obligation. A waiver of any term of this Agreement shall be effective only if set forth in a writing signed by the Person entitled to enforce such term.

 

11.10      Entire Agreement; Further Action; Counterparts and Delivery. This Agreement, those agreements, instruments and documents referred to herein and the agreements, instruments and documents dated the date hereof embody the complete agreement and understanding among the Members and the Company with respect to the subject matter herein and supersede and preempt any prior understandings, agreements or representations by or among such Persons, written or oral, which may have related to the subject matter hereof. The Members agree to execute and deliver all instruments and documents, provide all information and take or refrain from taking such actions as may be necessary or appropriate to achieve the purposes of this Agreement, in each case, as may be requested by the Board. This Agreement may be executed in counterparts and delivered by email.

 

11.11      Legal Representation. Each Member hereby acknowledges and agrees that: (a) the determination of such Member to acquire Units has been made by such Member independent of any other Person and independent of any statements or opinions as to the advisability of such purchase or as to the properties, business, prospects or condition (financial or otherwise) of the Company Group which may have been made or given by any other Member or by any agent or employee of any other Member, (b) no other Member has acted as an agent of such Member in connection with making its investment hereunder and no other Member shall be acting as an agent of such Member in connection with monitoring its investment hereunder, (c) the K1 Investor and the Company have retained Kirkland & Ellis LLP in connection with the transactions contemplated hereby and expect to retain Kirkland & Ellis LLP as legal counsel in connection with the management and operation of the K1 Investor’s investment in the Company Group, (d) Kirkland & Ellis LLP is not representing and will not represent any other Member in connection with the transactions contemplated hereby or any dispute which may arise between the K1 Investor or the Company, on the one hand, and any other Member, on the other hand, (e) such Member has retained its own independent counsel, or voluntarily and knowingly elected to forgo such representation and (f) Kirkland & Ellis LLP may represent the K1 Investor and the Company in connection with any and all matters contemplated hereby (including any dispute between the K1 Investor or the Company, on the one hand, and any other Member, on the other hand) and such Member waives any conflict of interest in connection with such representation by Kirkland & Ellis LLP.

 

11.12      Certain Waivers. As a specifically bargained for inducement for the Members to enter into this Agreement (after having the reasonable opportunity to consult with counsel), each Member hereby agrees that Section 18-210 and Section 18-305(a) of the Delaware Act shall not apply to or be incorporated into this Agreement and each Member knowingly, voluntarily and irrevocably waives any and all rights under such Sections of the Delaware Act.

 

 

11.13      Certain Administrative Expenses. Notwithstanding anything to the contrary contained herein, to the extent that K1 Investment Management, K1 Group, the K1 Investor or any of their respective Affiliates, on behalf of the Company, incurs administrative costs and expenses in respect of the formation, maintenance and operation of the Company Group, including annual filing fees and tax preparation fees, then (x) the Company shall reimburse K1 Investment Management, K1 Group, the K1 Investor or such Affiliate or a designee thereof for such reasonable costs and expenses prior to making any Distributions hereunder or (y) the net proceeds payable to the Members in a Sale Transaction shall be reduced by such amount and paid to K1 Investment Management, K1 Group, the K1 Investor or such applicable Affiliate.

 

*       *       *       *       *

 

Each of the undersigned has executed this Agreement as of the date first above written.

 

	MERIDIAN TOPCO LLC
	By:
	Name: Title:

 

	K5 PRIVATE INVESTORS, L.P.
	By: K5 Capital Advisors, L.P.  Title: General Partner    By: K1 Investment Management, LLC Title: General Partner
	By:
	Name: Title:

 

Signature Page to Amended and Restated

Limited Liability Company Agreement of Meridian TopCo LLC

Each of the undersigned has executed this Agreement as of the date first above written.

 

	[MEMBER]
	By:
	Name: Its:

 

Signature Page to Amended and Restated

Limited Liability Company Agreement of Meridian TopCo LLC

 

Exhibit A

 

DISPUTE RESOLUTION PROCEDURES

 

1.1                 Dispute Resolution. Any and all controversies, disputes or claims arising out of, relating to, or in connection with this Agreement or any related agreement, document or obligation, including any challenge regarding its or their existence, validity, operation or termination (each, a “Dispute”), shall be subject to the dispute resolution procedures set forth in this Section 1.1. Any party to the Dispute (each, a “Party”) may initiate such procedures by delivering written notice to the other Party (the “Dispute Notice”), describing in reasonable detail the facts and circumstances underlying the Dispute and the relief sought.

 

(a)       The Parties shall first attempt to resolve the Dispute through good faith negotiations. All offers, conduct and statements, whether oral or in writing, made in the course of the negotiation by any of the Parties or their respective Affiliates, directors, managers, officers, employees, agents, experts or attorneys (collectively, “Representatives”) shall be deemed confidential, privileged and inadmissible for any purpose, including impeachment, in any arbitration or other proceeding involving the Parties, provided that evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or non-discoverable as a result of its use in the negotiation. In the event the Parties are unable to resolve the Dispute within 20 business days after delivery of the Dispute Notice, then, unless otherwise agreed by the Parties in writing, the Dispute shall be referred to and finally resolved by arbitration before a panel of three arbitrators (the “Panel”). No lawsuit or other proceeding shall be brought by or on behalf of any Party during the negotiation period.

 

(b)       The arbitration shall be administered by the American Arbitration Association (“AAA”), or such other nationally-recognized dispute resolution organization mutually agreed on by the Parties in writing, and shall be conducted in accordance with the applicable commercial arbitration rules and mediation procedures of AAA or such other organization then in effect, as expressly modified pursuant to this Section 1.1, and the Parties hereby elect and consent to the use of any available expedited or fast track rules and procedures (collectively, the “Rules and Procedures”).

 

(c)       The Parties shall use commercially reasonable efforts to select the Panel within 15 business days after expiration of the negotiation period. If an agreement on the composition of the Panel is not reached within such 15 business day period, then the arbitrators shall be selected in accordance with the Rules and Procedures and this Section 1.1(c). In the event of the failure, refusal or inability of any arbitrator to act, a new arbitrator shall be appointed as a replacement, which appointment shall be made in the same manner as set forth above for the appointment of such resigning arbitrator. Each arbitrator must: (i) be a retired Delaware federal or state court judge or a licensed attorney with at least 10 years of active experience in commercial litigation or transactional matters; (ii) be instructed that he or she is a neutral arbitrator; (iii) have had no relationship representing either Party or their respective Affiliates during the immediately preceding one year period prior to selection; and (iv) agree in writing to abide and be bound by this Section 1.1. No arbitrator shall have any ex parte communication with any Party or its Representatives except to confirm availability and potential conflicts.

 

(d)       The arbitration shall be seated in Los Angeles, California and conducted in the English language.

 

 

(e)       Discovery shall be permitted in connection with the arbitration only to the extent, if any, expressly authorized by the Panel on a showing of substantial need by the Party seeking discovery.

 

(f)        The provisions of this Agreement, including this Section 1.1, shall be governed by and construed in accordance with the internal laws of the State of Delaware, without regard to its provisions concerning conflicts of law, and the Panel shall apply such laws in rendering a decision.

 

(g)       The Panel shall resolve the Dispute and shall sign and acknowledge its decision, together with a brief statement describing the rationale for such decision, in writing and simultaneously deliver a copy thereof to each of the Parties personally or by registered or certified mail, return receipt requested. Any such decision shall be rendered promptly, and in case within 60 days after appointment of the Panel. Subject to Section 1.1(j), the determination of the Panel shall be final and binding on the Parties and may be enforced in any court of competent jurisdiction.

 

(h)       The Panel shall have no authority to award incidental, indirect, consequential, punitive, statutory, exemplary, or other special damages, including but not limited to those in respect of claimed reputational harm, and the Parties waive any right to recover any such damages. For the avoidance of doubt, the Panel shall only award direct compensatory damages (if any) in connection with the arbitration.

 

(i)        The Panel shall award to the prevailing Party in the arbitration, if any, the costs, fees and expenses (including attorneys’ fees) reasonably incurred by such Party in connection with the arbitration.

 

(j)        Any Party may appeal an award granted by the Panel by seeking review of the disputed matter before a single neutral arbitrator. Any such appeal shall be conducted in accordance with the Optional Appellate Arbitration Rules of AAA as in effect as of the date hereof, except that the arbitrator shall limit his or her review to the specific matters in dispute and defer to all findings of fact made by the Panel (and not seek any further findings of fact). Any appeal must be initiated within 30 days after receipt of the decision rendered by the Panel by filing a notice of appeal with any AAA office. Following the appeal process, the decision rendered by the neutral arbitrator may be entered in any court of competent jurisdiction.

 

(k)       The Parties acknowledge that this Agreement evidences a transaction involving interstate commerce. Notwithstanding anything to the contrary contained herein, including Section 1.1(f) with respect to governing law, any arbitration conducted pursuant to the terms of this Agreement shall be governed by the Federal Arbitration Act (9 U.S.C. §§ 1-16) (as amended, modified or supplemented from time to time, the “FAA”). For avoidance of doubt, any issue concerning the extent to which any Dispute is subject to arbitration, or concerning the applicability, interpretation, or enforceability of these procedures, including any contention that all or part of these procedures are invalid or unenforceable, shall be governed by the FAA and resolved by the Panel.

 

(l)        All discussions and negotiations pursuant to the arbitration shall be confidential and shall be treated as compromise and settlement negotiations for purposes of the applicable rules of evidence and any additional confidentiality protections afforded by agreement of the Parties or applicable law. Without limiting the foregoing, the Parties (including their respective Representatives), the arbitrators and the dispute resolution organization shall maintain the confidentiality of any information relating to the Dispute and the arbitration and all documents, communications, proceedings and awards provided, produced or exchanged in the arbitration.

 

Unit Ownership Ledger

 

On file with the Company

 

 

Exhibit 107

 

CALCULATION OF FILING FEE TABLES

 

Schedule TO
(Form Type)

 

MariaDB plc
(Name of Subject Company (Issuer))

 

Meridian BidCo LLC
(Offeror)
a wholly owned subsidiary of

 

Meridian TopCo LLC

(Affiliate of Offeror)

a wholly-owned subsidiary of

 

K5 Private Investors, L.P.

(Affiliate of Offeror)

whose general partner is

 

K5 Capital Advisors, L.P.

(Affiliate of Offeror)

whose general partner is

 

K1 Investment Management, LLC
(Affiliate of Offeror)

 

(Name of Filing Persons (identifying status as offeror, issuer or other person))

 

Table 1 - Transaction Valuation

 

	Transaction Valuation*	Fee Rate	Amount of Filing Fee**
Fees to be Paid	$48,773,277.30	0.0001476	$7,198.94
Fees Previously Paid	$0		$0
Total Transaction Valuation	$48,773,277.30
Total Fees Due for Filing			$7,198.94
Total Fees Previously Paid			$0
Total Fee Offsets			$0
Net Fee Due			$7,198.94

 

*

Estimated for purposes of calculating the filing fee only. The transaction valuation was calculated by multiplying the product of (i) $0.55, which is the cash offer price for the MariaDB plc (“MariaDB”) ordinary shares, par value $0.01 per share (the “Ordinary Shares”) by (ii) the sum of (a) 69,025,648 Ordinary Shares issued and outstanding as of May 16, 2024 plus (b) 16,160,755 Ordinary Shares issuable pursuant to outstanding warrants of MariaDB plus (c) 3,492,283 Ordinary Shares underlying MariaDB equity awards that may become exercisable or issuable prior to the consummation of the offer.

 

**

The amount of the filing fee, calculated in accordance with Rule 0-11 of the Exchange Act, was calculated by multiplying $48,773,277.30 by 0.0001476.

 

 

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