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CUSIP No. 007786106 | | SCHEDULE 13D | | Page 8 of 12 Pages |
(collectively, the “Subject Shares”) free and clear of all encumbrances other than permitted encumbrances and no later than ten (10) business days after the commencement of the Offer. Each Supporting Stockholder has agreed that, once such Supporting Stockholder’s Subject Shares are tendered, such Supporting Stockholder shall not withdraw or cause to be withdrawn any of such Subject Shares from the Offer, unless and until the Merger Agreement shall have been terminated.
The Supporting Stockholders have also agreed that at any meeting of the holders of Shares held while the Support Agreement is in effect, the Supporting Stockholders will vote their Subject Shares (i) in favor of (A) approval and adoption of the Merger Agreement and the transactions contemplated thereunder and (B) approval of any proposal to adjourn or postpone the meeting to a later date, if there are not sufficient votes for the approval of the Merger Agreement, (ii) against any action or agreement which would reasonably be expected to impede, delay, postpone, interfere with, nullify or prevent, in each case in any material respect the Offer or the Merger, including but not limited to, (A) any other extraordinary corporate transaction, (B) any competing proposal and any action in furtherance of any competing proposal, (C) any amendment to the certificate of incorporation or bylaws of Aerohive, (D) any material change to the capitalization of Aerohive, (E) any change in a majority of the members of Aerohive Board of Directors or (F) any action, proposal, transaction or agreement that would reasonably be expected to result in the occurrence of any condition set forth inAnnex I to the Merger Agreement or result in a breach of any covenant, representation or warranty or any other obligation or agreement of such Supporting Stockholder under this Agreement. In furtherance of the Supporting Stockholders’ covenants under the Support Agreement, the Supporting Stockholders agreed to appoint Extreme as theirattorney-in-fact and proxy to attend all meetings of the holder of Shares and to vote their Subject Shares in connection with the actions described in the immediately preceding sentence.
The Support Agreement limits the ability of the Supporting Stockholders to sell or otherwise transfer any equity interests in Aerohive, including the Subject Shares or to grant any proxy,power-of-attorney or other authorization or consent in or with respect to such Supporting Stockholder’s Subject Shares. However, a Supporting Stockholder may transfer its Subject Shares as Extreme may agree in writing in its sole discretion.
The Support Agreement will terminate automatically, without any notice or action, upon the first to occur of (a) the termination of the Merger Agreement in accordance with its terms (b) the Effective Time, (c) the entry, without the prior written consent of the Supporting Stockholders, into any amendment, waiver or modification to the Merger Agreement or the terms of, or conditions to, the Offer, that could or does (i) decrease the Offer Price, (ii) change the form of consideration payable in the Offer (other than adding consideration), or (iii) otherwise amend the Offer in any manner that is adverse to the Supporting Stockholders, or (d) the mutual written consent of Extreme and the Supporting Stockholders.
Based upon information provided by Aerohive and the Supporting Stockholders, excluding options to purchase Shares, the Supporting Stockholders beneficially owned, in the aggregate 2,501,226 Shares (representing approximately 4.4% of all outstanding Shares) as of June 21, 2019. Including 1,914,340 options to purchase Shares exercisable on June 21, 2019 or becoming exercisable within 60 days thereafter, the Supporting Stockholders beneficially owned, in the aggregate, 4,415,566 Shares (representing approximately 7.7% of all outstanding Shares after giving effect to the exercise of such options) as of June 21, 2019.