-vi- SCHEDULES AND EXHIBITS Schedule I: List of Voting Company Stockholders Schedule II: Schedule III: List of Certain Voting Company Stockholders List of Certain Holders of Company Options Exhibit A: Definitions Exhibit B: Written Consent Exhibit C: Support Agreement Exhibit D: Option Acknowledgment Agreement Exhibit E: Illustrative Estimated Closing Statement Exhibit F: Illustrative Working Capital Calculation Exhibit G: Form of Non-Disclosure Agreement Exhibit H: Management Incentive Plan Exhibit I: Company Tax Representation Letter Exhibit J: Parent Tax Representation Letter Exhibit K: Selling Stockholder Questionnaire
-11- (b) Access to Information. From and after delivery of the Post-Closing Statement until the determination of the Final Closing Statement, Parent shall, upon reasonable prior notice by the Stockholder Representative to Parent, (A) provide the Stockholder Representative and its Representatives (including accounting and legal advisors) with reasonable access during normal business hours to the facilities, books and records and work papers of the Subsequent Surviving Company or such copies thereof as may be reasonably requested by the Stockholder Representative (subject to Stockholder Representative and each of Stockholder Representative’s advisors being granted access entering into a non-disclosure agreement with the Subsequent Surviving Company in the form attached hereto as Exhibit G); provided that, following the determination of the Final Closing Statement and upon Parent’s written request, all such copies must be returned
to the Subsequent Surviving Company or destroyed within fifteen (15) Business Days of such written request (and, if destroyed, with such destruction certified in writing to Parent and the Subsequent Surviving Company by the Stockholder Representative or the Stockholder Representative’s advisors, as applicable) and (B) cooperate with and assist the Stockholder Representative and its Representatives (including accounting and legal advisors) in connection with the review of such materials, including by making available its employees, accountants and other personnel to the extent reasonably requested. (c) Dispute Resolution. (i) Notice of Objection. If the Stockholder Representative has any objections to the Post-Closing Statement or any of the amounts included in the calculation of the Merger Cash Consideration set forth therein, it shall deliver to Parent a written statement (a “Notice of Objection”) setting forth in reasonable detail the particulars
of such disagreement (including the specific items in the Post-Closing Statement that are in dispute and the nature and amount of any disagreement so identified) not later than thirty (30) days after its receipt of the Post-Closing Statement (such thirty (30) day period, the “Review Period”). If the Stockholder Representative fails to deliver a Notice of Objection within the Review Period, the Post-Closing Statement and the amounts set forth therein shall be deemed to have been accepted by the Stockholder Representative and shall be deemed final and binding upon all of the Parties, and shall be deemed the Final Closing Statement. If the Stockholder Representative delivers a Notice of Objection to Parent within the Review Period, (i) any items set forth in the Post-Closing Statement that are not objected to by the Stockholder Representative in such Notice of Objection shall be deemed to have been accepted by the Stockholder Representative and shall
be deemed final and binding upon all of the Parties and (ii) the Stockholder Representative and Parent shall work in good faith to resolve the Stockholder Representative’s objections set forth in such Notice of Objection within the thirty (30) day period following Parent’s receipt thereof. (ii) Selection of the Accountant. In the event that Parent and the Stockholder Representative are unable to resolve in writing all of the Stockholder Representative’s objections in the Notice of Objection within the thirty (30) day period (or such other period as may be agreed by Parent and the Stockholder Representative) following Parent’s receipt of such Notice of Objection, the resolution of all such unresolved items (“Disputed Items”) shall be submitted to a nationally recognized firm of independent certified public accountants mutually selected by Parent and the Stockholder Representative to resolve any remaining disagreements and determine the Final Merger Cash
Consideration. If a mutually selected independent accountant is not appointed within thirty-five (35) Business Days from the date on which a Notice of Objection is delivered (or such longer period as may be agreed by Parent and the Stockholder Representative), Parent and Stockholder Representative shall draw lots to determine the independent accountant; provided that it shall be the New York main office of one of the “big four” accounting firms (such firm as is ultimately selected pursuant to the aforementioned procedures being the “Accountant”). The Stockholder Representative and Parent shall execute any agreement reasonably required by the Accountant for its engagement hereunder.
-14- appropriate Governmental Entity in accordance with applicable Tax Law, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the Person in respect of which such deduction and withholding was made. 2.9 No Interest. Notwithstanding anything to the contrary contained herein, no interest shall accumulate on any Per Share Merger Consideration. 2.10 Treatment of Equity Awards. (a) Treatment of Options. At the Initial Effective Time, each outstanding option to purchase shares of Common Stock (a “Company Option”) under the JackPocket, Inc. 2013 Equity Incentive Plan (as amended, the “Stock Plan”), whether vested or unvested (other than Company Performance Options that are Unvested Company Options, which shall be cancelled in accordance with Section 2.10(b)), shall, by virtue of the Initial Merger and without any further action on the part of the holders thereof or the Parties
hereto, shall be treated as follows: (i) In-the-Money Options: Each Company Option that is outstanding and unexercised immediately prior to the Initial Effective Time that has a per share exercise price that is less than the Per Share Closing Consideration (each, an “In-the-Money Option”) shall cease to represent an option to purchase shares of Common Stock and shall be converted into an option to purchase a number of shares of Parent Common Stock equal to the product (rounded down to the nearest whole number) of (x) the number of shares of Common Stock subject to such In-the-Money Option immediately prior to the Initial Effective Time and (y) the Equity Award Conversion Amount, at an exercise price per share (rounded up to the nearest whole cent) equal to (A) the exercise price per share of Common Stock of such In-the-Money Option immediately prior to the Initial Effective Time divided by (B) the Equity Award Conversion Amount; provided, however, that
the exercise price and the number of shares of Parent Common Stock purchasable pursuant to the In-the-Money Options shall be determined in a manner consistent with the requirements of Section 409A of the Code; provided, further, that in the case of any In-the-Money Option to which Section 422 of the Code applies, the exercise price and the number of shares of Parent Common Stock purchasable pursuant to such option shall be determined in accordance with the foregoing, subject to such adjustments as are necessary in order to satisfy the requirements of Section 424(a) of the Code; provided, further, that except as specifically provided above, following the Initial Effective Time, each In-the-Money Option (other than Company Performance Options that are Unvested Company Options, which shall be cancelled in accordance with Section 2.10(b)) shall continue to be governed by the same terms and conditions (including vesting and exercisability terms) as were applicable
to such In-the-Money Option immediately prior to the Initial Effective Time. (ii) Underwater Options: Each Company Option that is outstanding and unexercised immediately prior to the Initial Effective Time that has a per share exercise price that is equal to or greater than the Per Share Closing Consideration (each, an “Underwater Option”) shall no longer be outstanding and shall be cancelled at the Initial Effective Time for no consideration or payment, without further action by the holder of such Underwater Option, and no payment shall be made in respect of any Underwater Option following the Initial Effective Time. (b) Treatment of Unvested Company Performance Options. Each Unvested Company Option that is a Company Performance Option shall no longer be outstanding and shall be cancelled at the Initial Effective Time for no consideration or payment, without further action by the holder of such Company Performance Option, and no payment shall be made
in respect of any Company Performance Option following the Initial Effective Time.