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This VOTING AGREEMENT (this "Agreement"), dated as of January 28, 2025, is by and among Zimmer, Inc., a Delaware corporation ("Parent"),
Gazelle Merger Sub I, Inc., a Delaware corporation and a wholly owned subsidiary of Parent ("Merger Sub"), and each of the undersigned stockholders (each, a "Stockholder", and together the "Stockholders") of the Company.
WHEREAS, as of the date hereof, each
Stockholder is the record or beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of (i) the number of shares of common stock, par value $0.01 per share ("Company
Common Stock"), of the Company (as defined below) indicated opposite such Stockholder's name on Schedule 1 attached hereto (such shares, together with any shares of Company Common Stock described in Section 4.4, the "Subject Shares" of such Stockholder), and (ii) the Equity-Based Awards, and any other securities or
rights to acquire beneficial ownership of the number of shares of Company Common Stock indicated opposite such Stockholder's name on Schedule 2 attached hereto ("Subject Equity
Awards" of such Stockholder);
WHEREAS, concurrently with the execution
hereof, Parent, Merger Sub and Paragon 28, Inc., a Delaware corporation (the "Company"), are entering into an Agreement and Plan of Merger, dated as of the date hereof
and as it may be amended from time to time (the "Merger Agreement"), which provides, among other things, for Merger Sub to be merged with and into the Company (the "Merger") with the Company surviving the Merger as the surviving corporation in the Merger and as a wholly owned Subsidiary of Parent, upon the terms and subject to the
conditions set forth in the Merger Agreement (capitalized terms used but not otherwise defined herein shall have the respective meanings ascribed to such terms in the Merger Agreement); and
WHEREAS, as a condition to their
willingness to enter into the Merger Agreement, Parent and Merger Sub have required that each Stockholder, and as a material inducement and in consideration therefor, each Stockholder (in such Stockholder's capacity as a beneficial owner of the
Subject Shares and Subject Equity Awards) has agreed to, enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the respective representations, warranties, covenants and agreements set forth below and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, do hereby agree as follows:
Section 1.1 Agreement to Vote. Subject to the terms of this Agreement, each Stockholder hereby irrevocably and unconditionally agrees that, during the time this Agreement is in effect,
at any annual or special meeting of the stockholders of the Company, however called, including any adjournment or postponement thereof, and in connection with any action proposed to be taken by written consent of the stockholders of the Company,
such Stockholder shall, in each case to the fullest extent that the Subject Shares are entitled to vote (or to give consent) thereon: (a) cause all of the Subject Shares to be counted as present at any such annual or special meeting or
adjournment or postponement thereof for purposes of determining a quorum; and (b) be present (in person or by proxy) and vote (or cause to be voted if another Person is the holder of record of any Subject Shares beneficially owned by such
Stockholder) at any such
annual or special meeting or adjournment or postponement thereof, or deliver (or cause to be delivered) a written consent with respect to, all of such
Stockholder's Subject Shares (i) in favor of the adoption and approval of the Merger Agreement and the approval of the Merger, (ii) against any Takeover Proposal and (iii) against any other action that is intended or would reasonably be expected to
materially impede, interfere with or delay the consummation of the Merger or any of the other transactions contemplated by the Merger Agreement. Until the Effective Time, each Stockholder shall retain at all times the right to vote the Subject
Shares in such Stockholder's sole discretion, and without any other limitation, on any matters other than those set forth in this Section 1.1 that are at any time or from
time to time presented for consideration to the Company's stockholders generally.
Section 1.2 Irrevocable Proxy. In furtherance and not in limitation of the foregoing, but only in the event and in each case that any Stockholder fails to be counted as present or
fails to vote all of the Subject Shares at the Company Stockholder Meeting in accordance with Section 1.1, until the termination of this Agreement in accordance with Section 5.2 hereof, each Stockholder hereby appoints Parent, or any designee thereof, and each of them individually, as such Stockholder's proxy and attorney-in-fact, with
full power of substitution and resubstitution, to vote or act by written consent (and to instruct nominees or record holders to vote or act by written consent) during the time this Agreement is in effect with respect to any and all of the Subject
Shares in accordance with this Section 1.2. This proxy and power of attorney are given to secure the performance of the duties of the Stockholder under this
Agreement. The Stockholder hereby agrees that this proxy and power of attorney granted by the Stockholder shall be irrevocable until the termination of this Agreement pursuant to Section
5.2, shall be deemed to be coupled with an interest sufficient under applicable Law to support an irrevocable proxy and shall revoke any and all prior proxies granted by the Stockholder with respect to any Shares regarding the
matters set forth in this Section 1.2. The power of attorney granted by the Stockholder herein is a durable power of attorney and shall survive the bankruptcy, death
or incapacity of the Stockholder.
REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS
Each Stockholder, severally and not jointly, represents and warrants to Parent and Merger Sub that:
Section 2.1 Organization and Good Standing. Each Stockholder that is an entity is duly organized, validly existing and in good standing under the laws of its jurisdiction of
organization. Each Stockholder has full power and authority, and each Stockholder that is an entity is duly authorized, to make, enter into and carry out the terms of this Agreement and to perform its obligations hereunder.
Section 2.2 Authority; Binding Agreement. Each Stockholder has all requisite legal right, power, authority and capacity to execute, deliver and perform such Stockholder's obligations under this Agreement and to consummate the transactions
contemplated hereby. This Agreement has been duly and validly executed and delivered by each Stockholder, and constitutes a legal, valid and binding obligation of such Stockholder enforceable against such Stockholder in accordance with its
terms and, no other action is necessary to authorize the execution and delivery by the Stockholder or the performance of the Stockholder's obligations hereunder, subject to the Bankruptcy and Equity Exception.
Section 2.3 Non-Contravention. The execution and delivery of this Agreement by each Stockholder does not, and the performance by such Stockholder of such Stockholder's obligations hereunder and the consummation by such Stockholder of the
transactions contemplated hereby will not (a) conflict with or violate any Law or Judgment applicable to such Stockholder or the Subject Shares or Subject
Equity Awards of such Stockholder, (b) except as may be required by applicable U.S. Federal
securities Laws, require any consent, approval, order, authorization or other action by, or filing with or notice to, any Person (including any
Governmental Authority) under, violate or constitute a default (with or without the giving of notice or the lapse of time or both) under, or give rise to any right of termination, cancellation or acceleration under, or result in the creation of any
Encumbrances on such Stockholder's properties or assets (including the Subject Shares or Subject Equity Awards of such Stockholder) pursuant to, any (i) Contract, agreement, trust, commitment, order, judgment, writ, stipulation, settlement, award,
decree or other instrument binding on such Stockholder or the Subject Shares or Subject Equity Awards of such Stockholder or (ii) any applicable Law or (iii) any provision of the organizational or governing documents with respect to each
Stockholder that is an entity, or (c) render any Takeover Law applicable to the Merger or any other transaction involving Parent, Merger Sub or any Affiliate thereof, in the case of each of clauses (a) and (b), except as would not, individually or in the aggregate, reasonably be expected to prevent or materially delay the ability of
such Stockholder to perform such Stockholder's obligations under this Agreement in any material respect or to consummate the transactions contemplated hereby in a timely manner.
Section 2.4 Ownership of Subject Shares; Subject Equity Awards; Total Shares. Each Stockholder is the record or beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of
the Subject Shares and Subject Equity Awards of such Stockholder and has good and valid title to such Subject Shares free and clear of any Encumbrances, except for Encumbrances as may be imposed pursuant to (a) this Agreement (b) the
organizational documents of the Company, or (c) the Securities Act or other applicable securities Laws; provided, that any Encumbrances imposed pursuant to the organizational documents of the Company do not limit the ability of Parent to enjoy
full rights of ownership of the capital stock of the Surviving Corporation. Except pursuant to this Agreement, no Person has any contractual or other right or obligation to purchase or otherwise acquire record or beneficial ownership of all or
any portion of the Subject Shares or Subject Equity Awards. Except for the Subject Shares and Subject Equity Awards of each Stockholder, none of the Stockholders is a record or beneficial owner of any (i) Company Common Stock or voting securities
of the Company or (ii) options, warrants or other rights to acquire, or securities convertible into or exchangeable for (in each case, whether currently, upon lapse of time, following the satisfaction of any conditions, upon the occurrence of any
event or any combination of the foregoing), any capital stock, voting securities or securities convertible into or exchangeable for Company Common Stock or voting securities of the Company.
Section 2.5 Voting Power. Other than as provided in this Agreement, each Stockholder has investment and voting decision control with respect to all of the Subject Shares of such
Stockholder, and investment and voting decision control of disposition, full power to issue instructions with respect to the matters set forth herein and full power to agree to all of the matters set forth in this Agreement, in each case with
respect to all of the Subject Shares and Subject Equity Awards of such Stockholder. None of the Subject Shares of any Stockholder are subject to any stockholders' agreement, proxy, voting trust or other agreement or arrangement with respect to
the voting of the Subject Shares, except as provided hereunder.
Section 2.6 Reliance. Each Stockholder has been represented by or had the opportunity to be represented by independent counsel of such Stockholder's own choosing and has had the right
and opportunity to consult with such Stockholder's attorney, and to the extent, if any, that each Stockholder desired, each Stockholder availed itself of such right and opportunity. Each Stockholder understands and acknowledges that Parent and
Merger Sub are entering into the Merger Agreement in reliance upon the Stockholder's execution, delivery and performance of this Agreement.
Section 2.7 Absence of Litigation. With respect to each Stockholder, as of the date hereof, there is no Action pending against, or, to the knowledge of such Stockholder, threatened in writing against, and there is no Judgment imposed upon, such Stockholder or any of such Stockholder's properties or assets
(including the Subject Shares and Subject Equity Awards) except as would not, individually or in the aggregate, be reasonably expected to prevent or
materially delay or impair the consummation by such Stockholder of the transactions contemplated by this Agreement or otherwise adversely impact such Stockholder's ability to perform such Stockholder's obligations hereunder in any material respect.
Section 2.8 Brokers. No broker, finder, financial advisor, investment banker or other Person is entitled to any brokerage, finder's, financial advisor's or other similar fee or
commission in connection with the transactions contemplated hereby based upon arrangements made by or, to the knowledge of any Stockholder, on behalf of any such Stockholder in its capacity as a stockholder of the Company.
REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB
Each of Parent and Merger Sub represent and warrant to the Stockholders, jointly and severally, that:
Section 3.1 Organization; Authorization. Each of Parent and Merger Sub is duly organized or formed, as applicable, validly existing and in good standing under the laws of the
jurisdiction in which it is organized (in the case of good standing, to the extent the concept is recognized by such jurisdiction). The consummation of the transactions contemplated hereby are within each of Parent's and Merger Sub's corporate
powers and have been duly authorized by all necessary corporate actions on the part of Parent and Merger Sub. Each of Parent and Merger Sub has all requisite corporate power and authority to execute, deliver and perform their respective
obligations under this Agreement and to consummate the transactions contemplated hereby.
Section 3.2 Binding Agreement. Each of Parent and Merger Sub has duly executed and delivered this Agreement, and this Agreement constitutes a legal, valid and binding obligation of Parent and Merger Sub, enforceable against Parent and Merger Sub in
accordance with its terms, subject to the Bankruptcy and Equity Exception.
ADDITIONAL COVENANTS OF THE STOCKHOLDERS
Each Stockholder hereby covenants and agrees that until the valid termination of this Agreement in accordance with Section 5.2:
Section 4.1 No Transfer; No Inconsistent Arrangements. Except as provided hereunder or under the Merger Agreement, from and after the date hereof and until this Agreement is validly
terminated in accordance with Section 5.2, no Stockholder shall, directly or indirectly, (a) create or permit to exist any Encumbrances, other than Encumbrances as may
be applicable under the Securities Act or other applicable securities Laws or as expressly contemplated by the Merger Agreement and the terms of the organizational documents of the Company and that do not limit the ability of Parent to enjoy full
rights of ownership of the capital stock of the Surviving Corporation, on all or any portion of the Subject Shares or Subject Equity Awards, (b) transfer, sell, assign, gift, hedge, pledge or otherwise dispose of (whether by sale, liquidation,
dissolution, dividend or distribution), or enter into any derivative arrangement with respect to (collectively, "Transfer"), all or any portion of the Subject Shares or
Subject Equity Awards, or any right or interest
therein (or consent to any of the foregoing), (c) enter into any Contract with respect to any Transfer of the Subject Shares or Subject Equity Awards,
or any interest therein, (d) grant or permit the grant of any proxy, power-of-attorney or other authorization or consent in or with respect to all or any portion of the Subject Shares, (e) deposit or permit the deposit of all or any portion of the
Subject Shares into a voting trust or enter into a voting agreement or arrangement with respect to all or any portion of the Subject Shares or (f) take or permit any other action that would in any way restrict, limit or interfere with the
performance of such Stockholder's obligations hereunder or the transactions contemplated hereby or otherwise make any representation or warranty of such Stockholder herein untrue or incorrect in any material respect or seek to do or solicit any of
the foregoing actions, or cause or permit any other Person to take any of the foregoing actions. From and after the date hereof until this Agreement is validly terminated in accordance with Section 5.2, no Stockholder shall tender, agree to tender or cause or permit to be tendered all or any portion of the Subject Shares into or otherwise in connection with any tender or exchange offer. Any action taken in
violation of the foregoing sentences of this Section 4.1 shall be null and void ab
initio and each Stockholder agrees that any such prohibited action may and should be enjoined. If any involuntary Transfer of all or any portion of the Subject Shares or Subject Equity Awards of such Stockholder shall occur (including, if
applicable, a sale by a Stockholder's trustee in any bankruptcy, or a sale to a Merger Sub at any creditor's or court sale), the transferee (which term, as used herein, shall include any and all transferees and subsequent transferees of the initial
transferee) shall take and hold such Subject Shares subject to all of the restrictions, liabilities and rights under this Agreement, which shall continue in full force and effect until valid termination of this Agreement in accordance with Section 5.2. From and after the date hereof until this Agreement is validly terminated in accordance with Section
5.2, each Stockholder agrees that it shall not, and shall cause each of such Stockholder's Affiliates not to, become a member of a "group" (as defined under Section 13(d) of the Exchange Act) with respect to any securities in the
Company for the purpose of opposing or competing with or taking any actions inconsistent with the transactions contemplated by the Merger Agreement. Notwithstanding the foregoing, each Stockholder may make Transfers of Subject Shares and Subject
Equity Awards of such Stockholder (i) to any "Permitted Transferee" (as defined below), in which case any such transferred Subject Shares or Subject Equity Awards shall continue to be bound by this Agreement and provided that any such Permitted
Transferee agrees in writing to be bound by the terms and conditions of this Agreement prior to the consummation of any such Transfer, or (ii) as Parent may otherwise agree in writing in its sole discretion. A "Permitted Transferee" means, with respect to any Stockholder, (A) a spouse, lineal descendant or antecedent, brother or sister, adopted child or grandchild or the spouse of any child, adopted child,
grandchild or adopted grandchild of such Stockholder, (B) any charitable organization described in Section 170(c) of the Code, (C) any trust, the beneficiaries of which include only the Persons named in clause (A) or (B) of this definition, or (D) any corporation, limited liability company or partnership, the stockholders, members and
general or limited partners of which include only the Persons named in clause (A) or (B) of