o In summary, the Court does not provide sufficient clarity on the enforceability of compensation conceived as recovery of the consideration for the merger. For buyers, this lack of a clear path to enforceability with respect to claims for compensation can be costly, especially in the context of settlement discussions, given other barriers, such as. B substantive disputes, which often make it difficult for claimants to recover these claims. 9.5 Entire Agreement; Modification. This Agreement, the Agent and any other documents provided by the parties in this regard constitute the entire agreement between the parties with respect to the subject matter of this Agreement and its subject matter and supersede all prior written or oral agreements and understandings between the parties in this regard. No modification or modification of any provision of this Agreement shall be binding on either party except in writing and signed by all parties. There is no agreement, arrangement or understanding of any kind between the parent company and the shareholder with respect to the subject matter of this Agreement, unless this Agreement has been duly and validly signed on behalf of all parties. (h) a person is deemed to have made a „transfer“ of a security if the person sells, directly or indirectly: (i) sells, pledges, encumbers, transfers, transfers or assigns such security or interest in the security to a person other than the parent company; (ii) enter into an agreement or obligation providing for the sale, pledge, charge, grant of an option, transfer or assignment of that security or an interest therein to a person other than the parent undertaking; or (iii) reduces that person`s beneficial ownership, interest or risk in respect of that security. 4In the year in which Article 251(h) contained a restriction for interested parties, commentators noted that Article 203 of the DGCL, from which the definition of interested shareholders in Article 251(h) was derived, defines the `ownership` of 15% of the outstanding shares of a company to such an extent that a support agreement could provide a purchaser with ownership of the shares of a counterparty shareholder. This violates the then applicable restriction 251(h). (flashback) Review of what constitutes a merger review.

Requiring target shareholders to sign a letter of transmittal with obligations as a condition of receiving their merger consideration is not the only technique to address the discrepancy between the structure of the merger and the imposition of post-closing obligations on the acquirer on target shareholders. Another solution is to try to incorporate these obligations into the merger agreement itself and thus into the merger consideration itself. In other words, the right to counterparty to the concentration goes hand in hand with the restrictions arising from the obligations. The Court examines this concept in detail and concludes that this approach is justified in certain cases. While the Court does not provide quite specific guidance, the following principles emerge: In the era of Section 251(h), the three pillars of Omnicare`s ownership – voting rights agreements that guarantee a majority vote in favor of a transaction, a voting force disposition and not a trustee – remain essential to understanding the limits of the support that buyers of Delaware`s corporate objectives can obtain through the through support agreements. Given these three factors, practitioners appear to have relied on fiduciary defaults in conjunction with a tightening of tendering obligations to avoid an undue fait accompli in two-stage mergers with controlling shareholders and support agreements. Of the agreements discussed here, only one agreement, the Liberty-Zulily merger, contained what could be considered a supply force provision or a provision conceptually equivalent to the voting force provision in Omnicare, while providing for a tightening of tendering obligations. Buyers who subsequently consider a provision of strength of the offer should consider how such a provision could be formulated more aggressively in order to formulate a clear referendum for shareholders on a buyer`s proposed deal (and perhaps provide an additional deterrent to intruders facing a longer potential follow-up period).

Ultimately, the combination of certain transaction protections that a buyer or seller can obtain is not only what the law allows (including in terms of market controls over transaction considerations, which might require separate fiduciary exits in Delaware), but also the relative leverage of negotiation between the parties. Tension between the merger structure and the private M&A commitments of target shareholders. The effectiveness of the merger agreement structure, as it is able to displace the uninitiated without their consent or participation, has a tension with the acquisition of the usual protection after the closing granted to a purchaser of a private target company. Although state merger laws provide that with the consent of the target board of directors and the required shareholder approval, all shares can be automatically converted in consideration for the merger, although many shareholders may not have approved the merger, there is no legal mechanism that automatically binds all target shareholders to post-closing obligations, as provided for in the provisions on the release and remuneration of a share purchase agreement. are. without the individual consent of each of these owners. 2.2 Restriction of transfer of voting rights. During the support period, the shareholder shall ensure that: (a) none of the securities concerned are deposited in a voting trust; and (b) no proxy is granted in respect of the securities concerned and no voting rights agreement or similar arrangement is entered into. Finally, one target shareholder stated, „No thanks, I am sending the signature of this incriminating letter of transmittal that would impose obligations on me that are not provided for in the Merger Act, but I would like to see my balancing of mergers required as required by the Merger Act.“ Or in other words, „Keep the commitments, but I`ll take the money.“ The Court of Chancery agreed and issued a statement that could deal the fatal blow to the use of the letter of transmittal as a means of resolving the tension between a merger law and the desire to bind target shareholders to obligations in the style of share purchase agreements.

The structure of the merger should continue to provide acquirers with an efficient way to move quickly and confidentially to a definitive acquisition agreement with private targets that set the target of selling 100% of equity, particularly if those targets include many non-internal shareholders. A well-advised acquirer should be able to design an approach to the merger agreement and ancillary support agreements so that he or she does not face the dark choice between a merger agreement structure that offers insufficient protection after closing and a share purchase agreement structure characterised by unacceptable risks of not acquiring 100 % of equity; as well as barriers in terms of timeliness and confidentiality. (c) „Office“ means liens, pledges, pledges, security interests, options, pre-emptive rights, proxies, voting rights, trusts or arrangements or other encumbrances (except as created by this Agreement or transfer restrictions under the U.S. Securities Act of 1933, as amended). o Conditional rights to the merger audit, and not to set aside after completion. Amounts intended to be released in the future to target shareholders under escrow, retention and earn-out provisions should be described as amounts in which target shareholders have conditional rights that are part of their merger consideration, as opposed to amounts set aside or withdrawn at some point after the determination and profitability of the merger consideration. This letter (this „Support Agreement“) will be delivered by the undersigned (the „Shareholder“) to Newborn Acquisition Corp., an exempt cayman Islands corporation (the „Parent Company“), and to Nuvve Corporation, a Delaware corporation (the „Company“), pursuant to this Merger Agreement, which, at the time of this Agreement, was issued by and between the Parent Company, NB Merger Corp., a Delaware corporation and wholly-owned subsidiary. of the parent company (the „Buyer“). Nuvve Merger Sub Inc., a Delaware corporation and wholly-owned subsidiary of Buyer (the „Merger Sub-Company“), the Company and Ted Smith, an individual, representing the Company`s shareholders whose form is attached as Appendix A (this agreement, the „Merger Agreement“).

Capitalized terms used herein but not defined herein shall have the respective meanings ascribed to such terms in the Merger Agreement. As used herein, unless otherwise specified, the term „section“ refers to the specified section of this Support Agreement. 9.1 Survival of Representations, Warranties and Agreements. All representations, warranties, representations and agreements contained in this Agreement, and all rights and remedies therein, shall survive the expiration date of the Power of Attorney. o Time limit. Acquirers should consider including time limits for all obligations of target shareholders that create recovery rights against the counterparty to the merger, even if they are only reformulations of the applicable limitation period. The more challenges the acquirer faces in obtaining contractual commitments from target shareholders, the more desirable it is to allow significant time frames to increase the likelihood of enforceability without these separate obligations. o Commitments and mergers, not just resolutions. Ensure that at least all initiated shareholders make explicit commitments and connections regarding authorizations, confidentiality, cooperation, remuneration, the appointment of a shareholder representative and any other matter that may go beyond the express terms of the consideration for the merger at the same time as they expressly accept the merger agreement. .