Section 3.6 Withholding. Purchaser shall be entitled to deduct and withhold from any payment made pursuant to this
Agreement such amounts as it is required to deduct and withhold with respect to the making of any such payment under any applicable Tax Law; provided, that before making any deduction or withholding pursuant to this Section 3.6
(other than any withholding (x) arising from Seller’s failure to deliver the forms required to be delivered pursuant to Section 2.3(b)(ii) hereof or (y) required in respect of any compensatory payments), Purchaser shall (i)
use commercially reasonable efforts to provide reasonable prior notice to the Person in respect of whom such deduction or withholding is to be made (together with the legal basis therefor), (ii) if practicable, afford such Person with
a reasonable opportunity to provide any forms or other documentation or take such other steps in order to avoid such deduction or withholding, and (iii) reasonably cooperate with such Person in good faith to reduce or eliminate any
amounts that would otherwise be deducted or withheld. To the extent that amounts are withheld and paid to the proper Tax authority pursuant to any applicable Tax Law, such withheld amounts shall be treated for all purposes of this
Agreement as having been paid to such Person in respect of which such deduction and withholding was made.
Section 3.7 Employee Notes Payoff. The Seller hereby
directs the Purchaser to withhold the Aggregate Employee Note Payoff Amount, solely for administrative convenience, pursuant to Section 3.1(b)(i)(iii), in deemed satisfaction of the Employee Note Payoff Amount owed by each
applicable equityholder of Seller that is an obligor under an Employee Note. Prior to Closing, the Seller and Purchaser will reasonably cooperate to ensure the mechanic reflected in this Section 3.7 and the other provisions of this
Agreement concerning the Employee Notes are an appropriate net settlement mechanism for ensuring the repayment of the Employee Notes without any non de minimis adverse consequences to either Seller or Purchaser.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF SELLER
Except as set forth in the Company Disclosure Schedule, Seller hereby represents and warrants to Purchaser:
Section 4.1 Title to Shares. Seller owns and, as of
immediately prior to the Closing, Seller will own of record and beneficially 100% of the Company Shares, free and clear of all Encumbrances, other than restrictions on transfer imposed by applicable securities laws. Upon the
transfer and delivery of the Company Shares being sold hereunder by Seller to Purchaser at the Closing, Purchaser will receive good and valid title to such Company Shares, free and clear of all Encumbrances, except for any
Encumbrances created, directly or indirectly, by or on behalf of Purchaser or its Affiliates and such Company Shares shall not be subject to any voting or transfer restrictions (other than restrictions generally imposed on
securities under U.S. federal, state or foreign securities Laws and restrictions created, directly or indirectly, by or on behalf of Purchaser or its Affiliates).
Section 4.2 Organization and Good Standing. Seller is duly organized, validly existing and in good standing under the Laws
of the jurisdiction of its formation. Seller (a) has all requisite power and authority to own and lease its assets and to operate its business as the same are now being owned, leased and operated and (b) is duly qualified or licensed
to do business as a foreign entity in, and is in good standing in, each jurisdiction in which the nature of its business or its ownership of its properties requires it to be so qualified or licensed, except in each case where the
failure to have such power or authority or be so qualified or licensed would not reasonably be expected to materially impair or delay Seller’s ability to perform its respective obligations under this Agreement and the other
Transaction Agreements or consummate the transactions contemplated hereby or thereby.
Section 4.3 Authority; Execution and Delivery; Enforceability.
Seller possesses all requisite legal right, power and authority to execute, deliver and perform this Agreement and the other Transaction Agreements and to consummate the transactions contemplated herein and therein. The execution,
delivery and performance by Seller of this Agreement and the other Transaction Agreements and the consummation by Seller of the transactions contemplated hereby and thereby have been duly and validly authorized by all requisite
corporate action on the part of Seller and no other proceeding on the part of Seller is necessary to authorize this Agreement and the other Transaction Agreements or to consummate the transactions contemplated hereby and thereby.
This Agreement has been, and the other Transaction Agreements will upon delivery be, duly executed and delivered by Seller and, assuming due authorization, execution and delivery by each of the other parties hereto and thereto,
constitutes, or will upon such delivery constitute, the legal, valid and binding obligation of Seller, enforceable in accordance with its terms, except to the extent such enforcement may be limited by the Enforceability Exceptions.
Section 4.4 No Conflicts; Consents.
(a) Except as set forth in Section 4.4 of the Company Disclosure Schedule and assuming all Governmental Filings and waiting periods
described in or contemplated by Section 5.4(b), Section 4.4(b) and Section 6.3(b) have been obtained or made, or have expired, the execution, delivery and performance of
this Agreement and the other Transaction Agreements by Seller and the consummation by Seller of the transactions contemplated hereby and thereby will not (i) violate any applicable Law or Governmental Order to which Seller is subject,
(ii) with or without notice, lapse of time or both, conflict with, result in a violation or breach of, or constitute a default under, result in the acceleration, termination or cancellation of or create in any party the right to
accelerate, terminate or cancel any Contract to which Seller or any member of the Seller Group is a party or by which any of its material properties, rights or assets is bound, (iii) result in the creation of any Encumbrance (other
than any Permitted Encumbrance) on any properties, rights or assets of Seller or (iv) violate the certificate of incorporation or bylaws or comparable governing documents, each as amended to the date of this Agreement, of Seller,
other than, in the case of clauses (i), (ii) and (iii) above, where any such violations, conflicts, breaches, defaults, accelerations, terminations, cancellations, rights or Encumbrances would not reasonably be expected to materially
impair or delay Seller’s ability to perform its obligations under this Agreement and the other Transaction Agreements or consummate the transactions contemplated hereby or thereby.
(b) No filings or registrations with, notifications to, or authorizations, consents or approvals of, a Governmental Entity
(collectively, “Governmental Filings”) are required to be obtained or made by Seller in connection with the execution, delivery and performance of this Agreement by Seller or the
consummation by Seller of the transactions contemplated hereby, except (i) compliance with and filings under the HSR Act, (ii) Governmental Filings set forth on Section 4.4(b) of the Company Disclosure Schedule and (iii) such other
Governmental Filings, the failure of which to be obtained or made would not materially impair or delay the ability of Seller to consummate the transactions contemplated by this Agreement.
Section 4.5 Brokers and Finders. Seller has not incurred
any obligation or liability, contingent or otherwise, for any commission, brokerage, financial advisor, finder’s fee or other similar fee or compensation in connection with the transactions contemplated by this Agreement for which
the Company or any of its Subsidiaries is liable, other than any commission, brokerage, finder’s fee or other similar fee or compensation which will be included in the calculation of Company Transaction Expenses, and no broker,
finder, financial advisor or investment banker, other than Goldman Sachs & Co. LLC and RBC Capital Markets (whose fees shall be included as Company Transaction Expenses), is entitled to any such commission, brokerage, financial
advisor, finder’s fee or other similar fee or compensation in connection with the transactions contemplated by this Agreement based upon arrangements made by and on behalf of Seller.
Section 4.6 Proceedings. There is no Action of any kind whatsoever, at Law or in equity, pending, or threatened in writing
against Seller or any member of the Seller Group or any of their respective properties or assets, except in each case where any such Action would not reasonably be expected to materially impair or delay Seller’s ability to perform its
obligations under this Agreement and the other Transaction Agreements or consummate the transactions contemplated hereby or thereby. None of Seller nor any other member of the Seller Group or any of their respective properties or
assets is subject to any Governmental Order, except in each case where any such Governmental Order would not reasonably be expected to materially impair or delay Seller’s ability to perform its obligations under this Agreement and the
other Transaction Agreements or consummate the transactions contemplated hereby or thereby.
Section 4.7 Activities of Certain Entities. Each of the
Company and MB Aerospace Intermediate Inc. was formed solely for the purpose of serving as a holding company. Other than its ownership of all of the outstanding equity
securities of MB Aerospace Intermediate Inc., together with activities incident thereto or derived therefrom, the Company has not
engaged in any business activities. The Company has no assets, liabilities or obligations and has not entered into and is not party to any Contract other than (i) those set forth in its certificate of incorporation or bylaws, (ii)
those relating to its direct interest in MB Aerospace Intermediate Inc. and its other indirect Subsidiaries, (iii) those incident to its corporate existence and maintenance thereof, none of which are material, (iv) those under any
contract with the Company listed as a party thereto listed on any section of the Company Disclosure Schedule (but not any liability associated with any breach of contract by the Company or its Subsidiaries), (v) with respect to
Taxes, or (vi) pursuant to this Agreement and the transactions contemplated hereby. Other than its ownership of all of the outstanding equity securities of MB Aerospace Holdings II Corp., MB
Aerospace Intermediate Inc. has not engaged in any business activities, has no assets, liabilities or obligations and has not entered into and is not party to any Contract
other than (i) those set forth in its certificate of incorporation or bylaws, (ii) those relating to its direct interest in MB Aerospace Holdings II Corp. and its other indirect Subsidiaries, (iii) those incident to its corporate
existence and maintenance thereof, none of which are material, (iv) those under any contract with MB Aerospace Intermediate Inc. listed as a party thereto listed on any section of the Company Disclosure Schedule (but not any
liability associated with any breach of contract by MB Aerospace Intermediate Inc. or its Subsidiaries), (v) with respect to Taxes, or (vi) pursuant to this Agreement and the transactions contemplated hereby.
Section 4.8 Disclaimer of Warranties. EXCEPT AS OTHERWISE
EXPRESSLY SET FORTH IN THIS ARTICLE IV AND THE REPRESENTATIONS AND WARRANTIES MADE BY THE COMPANY IN ARTICLE V, (AS MODIFIED BY THE COMPANY DISCLOSURE SCHEDULE), SELLER EXPRESSLY DISCLAIMS ANY REPRESENTATIONS OR
WARRANTIES OF ANY KIND OR NATURE, EXPRESS OR IMPLIED, AS TO THE CONDITION, VALUE OR QUALITY OF THE COMPANY OR THE COMPANY’S ASSETS, AND, EXCEPT AS EXPRESSLY SET FORTH IN THIS ARTICLE IV AND IN THE REPRESENTATIONS AND
WARRANTIES MADE BY THE COMPANY IN ARTICLE V, SELLER SPECIFICALLY DISCLAIMS ANY REPRESENTATION OR WARRANTY OF MERCHANTABILITY, USAGE, SUITABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE WITH RESPECT TO THE COMPANY’S ASSETS, OR
AS TO THE WORKMANSHIP THEREOF, OR THE ABSENCE OF ANY DEFECTS THEREIN, WHETHER LATENT OR PATENT, IT BEING UNDERSTOOD THAT SUCH SUBJECT ASSETS ARE BEING ACQUIRED “AS IS, WHERE IS” ON THE CLOSING DATE, AND IN THEIR PRESENT CONDITION,
AND PURCHASER SHALL RELY ON THEIR OWN EXAMINATION AND INVESTIGATION THEREOF. EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES CONTAINED IN THIS ARTICLE IV AND THE REPRESENTATIONS AND WARRANTIES MADE BY THE COMPANY IN ARTICLE V (AS MODIFIED BY THE COMPANY DISCLOSURE SCHEDULE), SELLER HEREBY DISCLAIMS ALL LIABILITY AND RESPONSIBILITY, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, FOR ANY REPRESENTATION, WARRANTY, STATEMENT, OR INFORMATION MADE, COMMUNICATED, OR FURNISHED (ORALLY OR IN WRITING) TO PURCHASER OR ITS AFFILIATES OR REPRESENTATIVES (INCLUDING ANY OPINION,
INFORMATION, PROJECTION, OR ADVICE THAT MAY HAVE BEEN OR MAY BE PROVIDED TO PURCHASER BY ANY STOCKHOLDER, DIRECTOR, OFFICER, EMPLOYEE, AGENT, CONSULTANT, OR REPRESENTATIVE OF SELLER OR ANY OF ITS AFFILIATES). SELLER DOES NOT MAKE
NOR HAS SELLER MADE ANY REPRESENTATIONS OR WARRANTIES TO PURCHASER REGARDING ANY PROJECTION OR FORECAST REGARDING FUTURE RESULTS OR ACTIVITIES OR THE PROBABLE SUCCESS OR PROFITABILITY OF THE COMPANY.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
Except as set forth in the Company Disclosure Schedule, the Company hereby represents and warrants to Purchaser:
Section 5.1 Organization and Good Standing. The Company
is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware. Each Subsidiary of the Company is duly organized, validly existing and, except as would not reasonably be expected,
individually or in the aggregate, to have a Company Material Adverse Effect, in good standing under the Laws of the jurisdiction of its formation or incorporation. The Company (a) has all requisite power and authority to own, lease
and operate its assets and to operate its business as the same are now being owned, leased and operated and (b) is duly qualified or licensed to do business as a foreign entity and is in good standing in each jurisdiction in which
the nature of its business or its ownership of its properties requires it to be so qualified or licensed, except, in each case of the foregoing clauses (a) and (b), as would not reasonably be expected, individually or in the
aggregate, to be material to the Company and its Subsidiaries, taken as a whole. Each Subsidiary of the Company (1) has the requisite power and authority to own, lease and operate its assets and to operate its business as the same
are now being owned, leased and operated and (2) is duly qualified or licensed to do business as a foreign entity and is in good standing in each jurisdiction in which the nature of its business or its ownership of its properties
requires it to be so qualified or licensed, except, in each case, as would not reasonably be expected, individually or in the aggregate, to have a Company Material Adverse Effect. The Company has delivered or made available to
Purchaser a true, complete and correct copy of the certificates of incorporation and bylaws or comparable governing documents, as currently in effect, for the Company and each of its Subsidiaries. Neither the Company nor any of its
Subsidiaries is in material violation of any of the provisions contained in its certificate of incorporation, bylaws or comparable governing documents.
Section 5.2 Capitalization and Title to Shares.
(a) The authorized capital stock of the Company consists of 1,500 shares of common stock, par value $0.01 per share. The Company
Shares are the only shares of common stock of the Company outstanding. Except as set forth above, there are no shares of capital stock or other equity securities or interests of the Company issued, reserved for issuance or
outstanding. All of the outstanding shares of capital stock of the Company have been duly authorized and validly issued, and are fully paid and nonassessable and not subject to or issued in violation of any purchase option, call
option, right of first refusal, preemptive right, subscription right or any similar right. There are not any bonds, debentures, notes or other Indebtedness of the Company or any of its Subsidiaries having the right to vote (or
convertible into, or exchangeable for, securities having the right to vote) on any matters on which any holder of any share of capital stock or other equity interests of the Company or any of its Subsidiaries may vote (“Voting Company Debt”). Except as set forth in Section 5.2(a) or Section 5.2(b) of the Company Disclosure Schedule, as of the date of this Agreement, (A) there are not any options, warrants,
rights, convertible or exchangeable securities, “phantom” stock rights, profit participation rights, preemptive rights, puts, calls, stock appreciation rights, stock-based performance units, commitments, Contracts, arrangements or
undertakings of any kind to which the Company or any of its Subsidiaries is a party or by which any of them is bound (i) obligating the Company or any of its Subsidiaries to issue, deliver or sell, or cause to be issued, delivered or
sold, additional shares of capital stock or other equity interests in, or any security convertible into or exercisable for or exchangeable into, or giving any Person a right to subscribe for or acquire, any shares of capital stock of
or other securities or equity interest in, the Company or any Subsidiary of the Company or any Voting Company Debt, (ii) obligating the Company or any of its Subsidiaries to issue, grant or enter into any such option, warrant, right,
security, commitment, Contract, arrangement or undertaking or (iii) pay an amount in cash or in kind with respect to, or based on the value of, any shares of capital stock of or other equity interest in the Company or any of its
Subsidiaries or any Voting Company Debt and (B) there are no voting trusts, proxies or other similar agreements or understandings to which Seller, the Company or any of their respective Subsidiaries is a party or by which Seller, the
Company or any of their respective Subsidiaries is bound with respect to the voting of voting or equity interests in the Company or any of its Subsidiaries.
(b) Except as set forth on Section 5.2(b) of the Company Disclosure Schedule, there are not any outstanding contractual obligations
of the Company or any of its Subsidiaries (i) to repurchase, redeem or otherwise acquire any shares of capital stock of or other equity interest in the Company or any of its Subsidiaries or (ii) relating to the voting or registration
for sale of any equity securities of the Company or any of its Subsidiaries.
(c) Section 5.2(c) of the Company Disclosure Schedule sets forth a true and complete list of all Subsidiaries of the Company,
including the name and jurisdiction of organization of each such Subsidiary, the issued and outstanding capital stock of each such Subsidiary and the record owner of such capital stock. All the outstanding shares of capital stock of
each Subsidiary have been duly authorized and validly issued and are fully paid and nonassessable and not subject to or issued in violation of applicable securities Law, any purchase option, call option, right of first refusal,
preemptive right, subscription right or any similar right, and, except as set forth on Section 5.2(c) of the Company Disclosure Schedule, are held, directly or indirectly, by the Company or another wholly-owned Subsidiary of the
Company, free and clear of all Encumbrances (other than Permitted Encumbrances).
(d) Except for interests in the Company’s Subsidiaries, and except as set forth in Section 5.2(d) of the Company Disclosure
Schedule, the Company and its Subsidiaries do not own, directly or indirectly, any capital stock, membership interest, partnership interest, joint venture interest or other voting or equity interest in any Person (including any
securities exercisable or exchangeable for or convertible into capital stock, membership interest, partnership interest, joint venture interest or other voting or equity interests in). There are no outstanding commitments or
agreements obligating the Company or one of its Subsidiaries to make any investment (in the form of a loan, capital contribution or any other form of investment) in any Person, other than any such commitments or agreements between or
among the Company and any of its wholly-owned Subsidiaries. The Company beneficially owns 100% of the equity and/or voting interests in the Company’s Subsidiaries.
(e) Upon the transfer and delivery of the Company Shares being sold hereunder by Seller to Purchaser at the Closing, Purchaser will
receive good and valid title to such Company Shares, free and clear of all Encumbrances, except for any Encumbrances created, directly or indirectly, by or on behalf of Purchaser and such Company Shares shall not be subject to any
voting or transfer restrictions (other than restrictions generally imposed on securities under U.S. federal, state or foreign securities Laws and restrictions created, directly or indirectly, by or on behalf of Purchaser).
Section 5.3 Authority; Execution and Delivery; Enforceability.
The Company possesses all requisite legal right, power and authority to execute, deliver and perform this Agreement and the other Transaction Agreements and to consummate the transactions contemplated herein and therein. The
execution, delivery and performance by the Company of this Agreement and the other Transaction Agreements and the consummation by the Company of the transactions contemplated hereby and thereby have been duly and validly authorized
by all requisite corporate action on the part of the Company and no other proceeding on the part of the Company is necessary to authorize this Agreement and the other Transaction Agreements or to consummate the transactions
contemplated hereby or thereby. This Agreement has been, and the other Transaction Agreements will upon delivery be, duly executed and delivered by the Company and, assuming due authorization, execution and delivery by each of the
other parties hereto and thereto, constitutes, or will upon such delivery constitute, the legal, valid and binding obligation of the Company, enforceable in accordance with its terms, except to the extent such enforcement may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting enforcement of creditors’ rights generally and that the availability of equitable remedies, including specific performance, is subject
to the discretion of the court before which any proceeding is brought (the “Enforceability Exceptions”).
Section 5.4 No Conflicts; Consents.
(a) Except as set forth in Section 5.4(a) of the Company Disclosure Schedule and assuming all Governmental Filings and waiting periods
described in or contemplated by Section 5.4(b), Section 4.4(b) and Section 6.3(b) have been obtained or made, or have expired, the execution, delivery and performance of this Agreement and the other Transaction
Agreements by the Company and the consummation by the Company of the transactions contemplated hereby and thereby will not (i) violate any applicable Law or Governmental Order to which the Company or its Subsidiaries are subject, (ii)
with or without notice, lapse of time or both, conflict with, result in a violation or breach of, or constitute a default under, result in the acceleration, termination or cancellation of or create in any party the right to
accelerate, terminate or cancel any Company Material Contract or result in the loss of any material benefit under any Company Material Contract, (iii) result in the creation of any Encumbrance (other than any Permitted Encumbrance) on
any properties, rights or assets of the Company or any of the Company’s Subsidiaries or (iv) violate the certificate of incorporation or bylaws or comparable governing documents, each as amended to the date of this Agreement, of the
Company or any of its Subsidiaries, other than, in the case of clauses (i), (ii) and (iii) above, any such violations, conflicts, breaches, defaults, accelerations, terminations, cancellations, rights or Encumbrances that would not
reasonably be expected, individually or in the aggregate, to (A) be material to the Company and its Subsidiaries, taken as a whole and (B) materially impair or delay the Company’s ability to perform its obligations under this
Agreement and the other Transaction Agreements or consummate the transactions contemplated hereby or thereby.
(b) No Governmental Filings are required to be obtained or made by the Company or its Subsidiaries in connection with the execution
and delivery of this Agreement by the Company or the consummation by the Company of the transactions contemplated hereby, except (i) compliance with and filings under the HSR Act, (ii) Governmental Filings set forth on Section 5.4(b)
of the Company Disclosure Schedule and (iii) such other Governmental Filings, the failure of which to be obtained or made would not, individually or in the aggregate, be material to the Company and its Subsidiaries, taken as a whole,
and would not be expected to materially impair or delay the Company’s ability to perform its obligations under this Agreement and the other Transaction Agreements or consummate the transactions contemplated hereby or thereby.
Section 5.5 Financial Statements.
(a) Section 5.5 of the Company Disclosure Schedule sets forth true and complete copies of (i) the audited combined consolidated
financial statements of the MB Aerospace Group as of and for the fiscal years ended January 2, 2022 and January 2, 2023, including balance sheets as of January 2, 2022 and January 2, 2023, and the related statements of operations,
cash flows and changes in members’ equity for each fiscal year then ended (the “Audited Financial Statements”), and (ii) the unaudited combined consolidated financial statements of the MB
Aerospace Group as of and for the fiscal quarter ended April 2, 2023, including a balance sheet as of April 2, 2023 and the related statements of operations and cash flows for the three (3)-month period then ended (the “Interim Financial Statements,” and together with the Audited Financial Statements, the “Financial Statements”), each of which have been
delivered by the Company to Purchaser. The Financial Statements have been prepared in accordance with GAAP, consistently applied, and present fairly, in all material respects, the consolidated financial position of the Company and
its Subsidiaries as of the date indicated and the results of operations for the period then ended, except with respect to the Interim Financial Statements, which are subject to (x) normal year-end adjustments, which are not,
individually or in the aggregate, material and (y) the absence of disclosures normally made in footnotes. The balance sheet as of April 2, 2023, which is included in the Financial Statements, is referred to herein as the “Latest Company Balance Sheet” and April 2, 2023 is referred to as the “Latest Company Balance Sheet Date.”
(b) The Company and its Subsidiaries maintain books and records reflecting their assets and liabilities that are accurate in all
material respects and are maintained in all material respects in good faith and in accordance with GAAP and any other applicable accounting requirements. The Company and its Subsidiaries maintain systems of internal accounting
controls that are designed to provide reasonable assurance in all material respects that: (i) transactions are executed only with management’s general or specific authorization, (ii) transactions are recorded as necessary to permit
preparation of their financial statements and (iii) access to their assets is permitted only in accordance with management’s general or specific authorization. To the Knowledge of the Company, there are no deficiencies in the design
or operation of the Company or its Subsidiaries’ controls that, individually or in the aggregate, would reasonably be expected to materially impair the Company or its Subsidiaries’ ability to record, process, summarize and report
financial data with respect to the business operated by the Company and its Subsidiaries. There is no fraud with respect to the internal controls of the Company or its Subsidiaries, whether or not material, that involves management
or other employees of the Seller or its Affiliates who have a significant role in the internal controls of the Company and its Subsidiaries.
(c) None of the Company nor any of its Subsidiaries is a party to, nor do the Company or any its Subsidiaries have any commitment to
become a party to, any joint venture, off-balance sheet partnership or any similar Contract or any off-balance sheet arrangements where the purpose or intended effect of such Contract is to avoid disclosure of any transaction
involving, or liabilities of, the Company or any of its Subsidiaries.
Section 5.6 No Undisclosed Liabilities. Neither the Company nor any of its Subsidiaries has any liabilities of any kind
other than (i) those to the extent specifically disclosed, reflected and adequately reserved for on the Latest Company Balance Sheet, (ii) liabilities incurred in the ordinary course of business after the Latest Company Balance Sheet
Date (none of which is a liability from breach of contract, breach of warranty, tort, infringement or misappropriation), (iii) liabilities incurred in connection with the transactions contemplated by this Agreement or (iv) liabilities
that, individually or in the aggregate, are not otherwise material in amount or nature.
Section 5.7 Absence of Certain Changes or Events. Since
January 2, 2023 to the date of this Agreement (i) (x) the Company and its Subsidiaries have conducted their businesses in the ordinary course consistent with past practice in all material respects and (y) none of the Company or any
of its Subsidiaries has taken any action which, if taken after the date hereof, would have required the prior consent of Purchaser pursuant to Section 7.1 and (ii) there has not been any event that has had, or would be
reasonably expected to have, individually or in the aggregate, a Company Material Adverse Effect.
Section 5.8 Real Property; Title to Assets.
(a) Section 5.8(a) of the Company Disclosure Schedule sets forth a true and complete list of all of the real property (by street
address) owned or held in perpetual usufruct by the Company or any of its Subsidiaries (such properties, collectively, the “Owned Real Property”). The Company or one of its Subsidiaries
has good and marketable title to the Owned Real Property, subject to Permitted Encumbrances.
(b) Section 5.8(b) of the Company Disclosure Schedule sets forth a true and complete list of all of the real property leases,
subleases or other occupancies (collectively, the “Leases”) to which the Company or any of its Subsidiaries is a party as tenant for real property (collectively, the “Leased Real Property”). The Company and its Subsidiaries, as applicable, hold a valid and existing leasehold interest under each of the Leases to which it is a party for the terms set forth
therein, free and clear of all Encumbrances (other than any Permitted Encumbrances). Except as would not, individually or in the aggregate, reasonably be expected to be material to the Company and its Subsidiaries, all of the Leases
are in full force and effect and enforceable by the Company or such Subsidiaries which is a party thereto in accordance with their terms, subject to the Enforceability Exceptions. Neither the Company or any of its Subsidiaries nor,
to the Knowledge of the Company, any other party to the Lease, is in material breach of or taken or failed to take any act which, with or without notice, lapse of time, or both, would constitute a material default under any Lease that
would, individually or in the aggregate, reasonably be expected to materially impair the continued use and operations of the Leased Real Property to which they relate in the conduct of the business of the Company and its Subsidiaries
as presently conducted or be material to the Company and its Subsidiaries, taken as a whole.
(c) Other than any exception which would not, individually or in the aggregate, reasonably be expected to be, individually or in the
aggregate, material to the Company and its Subsidiaries, the Company and its Subsidiaries own each of the items of material tangible personal property reflected on the Latest Company Balance Sheet or acquired thereafter (except for
assets reflected thereon or acquired thereafter that have been disposed of since the Latest Company Balance Sheet Date), free and clear of all Encumbrances, except for (i) Encumbrances identified or described in Section 5.8(c) of the
Company Disclosure Schedule and (ii) Permitted Encumbrances. Except as would not, individually or in the aggregate, reasonably be expected to be material to the Company and its Subsidiaries, the Company and its Subsidiaries maintain
reasonable policies, practices and procedures with respect to the security and safeguard of inventories and other tangible assets (including with respect to employee and third-party theft and other loss).
(d) Except as would not reasonably be expected, individually or in the aggregate, to be material to the Company and its
Subsidiaries, taken as a whole, (i) the use and operation of the Owned Real Property and the Leased Real Property by the Company and its Subsidiaries do not violate in any material respect any material Law, covenant, condition,
restriction, easement, license, Permit or agreement and (ii) there are no Actions pending nor, to the Knowledge of the Company, threatened against or affecting the Owned Real Property, the Leased Real Property or any portion thereof
or interest therein in the nature or in lieu of condemnation or eminent domain proceedings.
(e) To the Knowledge of the Company, all buildings, structures, improvements, fixtures, building systems and equipment, and all
components thereof, included in the Owned Real Property and the Leased Real Property (the “Improvements”) are, in all material respects, in serviceable operating condition and repair
(giving due account to the age and length of use of the same, ordinary wear and tear excepted). To the Knowledge of the Company, there are no structural deficiencies or latent defects affecting any of the Improvements and there are no
facts or conditions affecting any of the Improvements which would, individually or in the aggregate, be material to the Company and its Subsidiaries.
Section 5.9 Intellectual Property.
(a) Section 5.9(a) of the Company Disclosure Schedule sets forth a listing of all Intellectual Property registrations and
applications included in the Company IP (collectively, the “Company Registered IP”).
(b) Except as would not reasonably be expected, individually or in the aggregate, to have a Company Material Adverse Effect, (i) the
Company and its Subsidiaries own all right, title and interest in and to the Company IP, (ii) all Company Registered IP is subsisting and unexpired, and not invalid or unenforceable, (iii) the Company is current in the payment of all
registration, maintenance and renewal fees with respect to Company Registered IP and (iv) the Company exclusively owns, free and clear of all Encumbrances (other than Permitted Encumbrances) the Company IP.
(c) Except as would not reasonably be expected, individually or in the aggregate, to have a Company Material Adverse Effect, the
Company owns or has sufficient and valid rights to use all Intellectual Property used in, held for use in or necessary for the conduct of the business of the Company and its Subsidiaries as currently conducted, including the
development, manufacture, use, sale, commercialization or other exploitation of any product, service or other offering provided by the Company or its Subsidiaries, all of which rights shall survive the consummation of the transactions
contemplated by this Agreement without being terminated or materially changed. Except as would not reasonably be expected, individually or in the aggregate, to have a Company Material Adverse Effect, neither the execution and
delivery of nor performance under this Agreement by the Company, or the consummation of the transaction contemplated by this Agreement will, under any Contract to which the Company is bound, result in the Company or Purchaser and any
of their respective Affiliates being (i) bound by or subject to any obligation to grant licenses, covenants not to assert, or other rights with respect to Company IP, which such party was not bound by or subject to prior to the
Closing, or (ii) obligated to pay any material royalties, fees or other payments to any Person, with respect to Intellectual Property, in excess of those obligations by such party prior to the Closing.
(d) Except as would not reasonably be expected, individually or in the aggregate, to be material to the Company and its
Subsidiaries, taken as a whole, (i) there are no claims pending against the Company or its Subsidiaries before any Governmental Entity (A) contesting or challenging the use, validity, enforceability or ownership of any Company IP or
(B) alleging that the conduct of the Company’s and its Subsidiaries’ businesses, including the development, manufacture, use, sale, commercialization or other exploitation of any product, service or other offering provided by the
Company or its Subsidiaries, is infringing, misappropriating or otherwise violating any Intellectual Property of a third party, (ii) the conduct of the Company’s and its Subsidiaries’ businesses, including the development,
manufacture, use, sale, commercialization or other exploitation of any product, service or other offering provided by the Company or its Subsidiaries, does not infringe upon or misappropriate any Intellectual Property of any third
party and (iii) to the Knowledge of the Company, no third party is infringing or misappropriating any Intellectual Property owned by the Company or any of its Subsidiaries;
(e) Except as would not reasonably be expected, individually or in the aggregate, to have a Company Material Adverse Effect, the
Company and its Subsidiaries take commercially reasonable measures to maintain and protect (i) their material trade secrets and material confidential information and no such material trade secrets or material confidential information
have been used, disclosed to or otherwise discovered by any Person except pursuant to non-disclosure obligations that have not been breached by such Person, and (ii) the integrity, continuous operation and security of their material
software and systems, and there have been no violations, outages or breaches of same, other than those that were resolved without material cost or liability.
(f) Except as would not reasonably be expected, individually or in the aggregate, to have a Company Material Adverse Effect, (i)
each Person (including any employees, officers, contractors or service providers) who has, on behalf of the Company or its Subsidiaries, developed, invented, conceived or reduced to practice any material Intellectual Property has
assigned to the Company or its Subsidiaries all of such Person’s rights therein that do not vest in the Company or its Subsidiaries by operation of Law and (ii) no such Person retains any right, title or interest in or to any such
Intellectual Property.
(g) Except as would not reasonably be expected, individually or in the aggregate, to have a Company Material Adverse Effect, the
Company or its Subsidiaries owns the Intellectual Property in all material proprietary Software owned (or purported to be owned) or that was authored or developed by or on behalf of the Company, including NX and Teamcenter software
(collectively, “Company Software”). Except as would not reasonably be expected, individually or in the aggregate, to have a Company Material Adverse Effect, neither the Company nor its
Subsidiaries has delivered, licensed or made available, nor is under a duty or obligation (whether present, contingent, or otherwise) to deliver, license or make available, the source code for any Company Software to any escrow agent
or other Person who is not an employee or consultant who are subject to valid and binding confidentiality obligations and acting on behalf of the Company or its Subsidiaries.
(h) Except as would not reasonably be expected, individually or in the aggregate, to have a Company Material Adverse Effect, neither
the Company nor its Subsidiaries has distributed, made available for remote interaction, or incorporated or linked any Open Source Software in conjunction with or into any Company Software in a manner that requires the Company to (i)
disclose or distribute to any Person or the public of any portion of the source code for such Company Software, (ii) imposes any restriction on the consideration to be charged for the distribution of such Company Software, or (iii)
grants, or purports to grant, to any third party, any rights or immunities under any Company IP. Except as would not reasonably be expected, individually or in the aggregate, to have a Company Material Adverse Effect, the Company and
its Subsidiaries is in material compliance with the terms and conditions of all relevant licenses for Open Source Software, including notice and attribution obligations.
Section 5.10 Information Technology; Data Protection.
(a) Except as would not reasonably be expected, individually or in the aggregate, to be material to the Company and its Subsidiaries,
taken as a whole, all Company IT Assets (i) are free from any material defect, to the extent applicable, and (ii) do not contain any virus, software, routine or hardware component, in each case, designed to permit unauthorized access
or control, or to disable or otherwise harm any Company IT. Except as would not reasonably be expected, individually or in the aggregate, to have a Company Material Adverse Effect, the Company complies with, and is not in breach or
default of, its obligations and use restrictions with respect with to third-party software (including with respect to Open Source Software licenses).
(b) Except as would not reasonably be expected, individually or in the aggregate, to have a Company Material Adverse Effect, (i) the
Company IT Assets (A) operate and perform in all material respects in accordance with their documentation and functional specifications, (B) are sufficient for the current needs of the business of the Company and (C) have not
malfunctioned or failed during the prior three (3)-year period in a manner that has caused material disruption to the business operations of the Company and (ii) since January 1, 2020, there has been no unauthorized access to or
unauthorized use of the Company IT Assets, or the Personal Data stored or contained therein or transmitted thereby. The Company has taken commercially reasonable steps to provide for archival, back-up, recovery and restoration of its
material business data.
(c) Except as would not reasonably be expected, individually or in the aggregate, to have a Company Material Adverse Effect, since
January 1, 2020, the Company has established and implemented written policies and organizational, physical, administrative and technical measures regarding privacy, cyber security, data protection and the collection, retention,
protection, transfer, use and processing of Personal Data, in each case, that are commercially reasonable and consistent in all material respects with requirements of (i) all applicable Data Protection Laws, (ii) any contractual
commitments of the Company and (iii) any publicly facing statements or policies adopted by the Company relating to its collection or processing of Personal Data (clauses (i) and (ii), collectively, the “Privacy and Security Requirements”).
(d) Except as would not reasonably be expected, individually or in the aggregate, to be material to the Company and its Subsidiaries,
taken as a whole, neither the Company nor any of its Subsidiaries has received any written notice (including any enforcement notice), letter, or complaint alleging, or providing notice of any investigation concerning, any material
noncompliance with any applicable Laws or any obligations concerning such Personal Data and no Person has gained unauthorized access to or misused any Personal Data in a manner that, individually or in the aggregate, has resulted in
or is reasonably expected to result in material liability to the Company or any of its Subsidiaries or an obligation for the Company or any of its Subsidiaries to notify any Governmental Entity, including a requirement to make a
filing with the SEC.
(e) Except as would not have a Company Material Adverse Effect, (A) (i) the Company is in compliance, and since January 1, 2020, has
been in compliance, with all applicable Data Protection Laws and the Company’s own Privacy and Security Requirements with respect to privacy, data protection and the collection, retention, protection, transfer, use and processing of
Personal Data, (ii) none of the Company or any of its Subsidiaries has received any written notice from any Governmental Entity regarding any actual, alleged, possible or potential violation of, or failure to comply with, any
applicable Data Protection Laws or the Company’s own Privacy and Security Requirements and (iii) the Company has since January 1, 2020 taken commercially reasonable steps designed to ensure the confidentiality, privacy and security of
all Personal Data that is collected, used, stored, transferred or otherwise processed by or on behalf of the Company, or is otherwise in its possession or control and (B) to the extent required by applicable Data Protection Laws, the
Company has entered into written agreements with all third parties who process or store Personal Data for or on behalf of the Company that obligate such persons to comply with all applicable Data Protection Laws and to take steps to
protect and secure Personal Data from loss, theft, misuse or unauthorized use, access, modification or disclosure.
Section 5.11 Insurance. Section 5.11 of the Company
Disclosure Schedule sets forth a true and complete listing of all material insurance policies or binders currently owned, maintained, held by or applicable to the Company or any of its Subsidiaries (or its respective assets or
business). Except as would not reasonably be expected, individually or in the aggregate, to have a Company Material Adverse Effect, all such policies are in full force and effect and all premiums that are due and payable with
respect thereto have been timely paid (other than retroactive or retrospective premium adjustments and adjustments in respect of self-funded health programs that are not yet, but may be, required to be paid with respect to any
period end prior to the Closing Date). None of the Company, any of its Subsidiaries, any member of the Seller Group or any of their respective Representatives has received any written notice of cancellation or non-renewal of any
such policy or arrangement, nor has the termination of any such policy or arrangement been threatened in writing. Except as would not reasonably be expected, individually or in the aggregate, to have a Company Material Adverse
Effect, the aggregate coverages provided by the insurance policies of the Company and its Subsidiaries are customary and reasonable, in both scope and amount, in light of the risk attendant to the business of the Company and its
Subsidiaries, and for companies of similar size in the industries and locations in which the Company and its Subsidiaries operate.
Section 5.12 Taxes. Except as set forth on Section 5.12 of
the Company Disclosure Schedule:
(a) All material Tax Returns required to be filed by the Company or any of its Subsidiaries with any Governmental Entity have been
timely filed (taking into account applicable extensions of time to file), and all such Tax Returns are true, correct and complete in all material respects. All material Taxes required to be paid by the Company or any of its
Subsidiaries have been paid in full, other than Taxes which are not yet due and payable or are being contested in good faith by appropriate proceedings and for which adequate reserves have been established in accordance with GAAP.
The Company and its Subsidiaries have withheld and paid all material Taxes required to have been withheld and paid in connection with any amounts paid by the Company or any Subsidiary to any employee, independent contractor, creditor
or stockholder.
(b) There is no audit, examination or other administrative or court proceeding involving any material Tax of the Company or any of its
Subsidiaries that is currently in progress or threatened in writing by a Governmental Entity. No deficiency or proposed adjustment that has not been fully paid or finally resolved for any material amount of Tax has been asserted,
assessed or proposed by any Governmental Entity against the Company or any of its Subsidiaries.
(c) Neither the Company nor any of its Subsidiaries has received from any Governmental Entity in a jurisdiction where the Company or
its Subsidiary has not filed any Tax Returns any written claim that the Company or such Subsidiary is or may be subject to taxation by, or required to file Tax Returns in, that jurisdiction, which claim has not been fully resolved.
(d) There are no Encumbrances for Taxes upon any of the assets of the Company or any of its Subsidiaries, other than Permitted
Encumbrances.
(e) Neither the Company nor any of its Subsidiaries is a party to, is bound by or has any obligation under any Tax allocation or Tax
sharing agreement, other than (i) any such agreement solely among the Company and its Subsidiaries or (ii) any commercial agreement entered into in the ordinary course of business, the primary subject matter of which is not Taxes (a “Commercial Tax Agreement”).
(f) No extension or waiver of any statute of limitations with respect to the assessment or determination of any of the Company’s or
its Subsidiaries’ material Taxes is in effect (except for automatic extensions of time to file income Tax Returns obtained in the ordinary course of business).
(g) Neither the Company nor any of its Subsidiaries (i) is resident for Tax purposes in a jurisdiction outside of its jurisdiction of
organization or incorporation or (ii) has, or has ever had, a permanent establishment or other taxable presence in any country other than its country of organization or incorporation.
(h) Neither the Company nor any of its Subsidiaries (i) has been a member of an affiliated, consolidated, combined, unitary or
similar Tax group for purposes of filing any income Tax Return, other than a group of which the Company or one of its Subsidiaries is the common parent, or (ii) has any liability for a material amount of Taxes of any Person (other
than the Company or any of its Subsidiaries) under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local or foreign law), as a transferee or successor, or otherwise by operation of Law.
(i) Neither the Company nor any of its Subsidiaries will be required to (i) include any material item of income in, or exclude any
material item of deduction from, taxable income for any taxable period (or portion thereof) beginning after the Closing Date, as a result of (A) any change in or improper method of accounting for a Pre-Closing Tax Period, (B) “closing
agreement” described in Section 7121 of the Code (or any similar provision of state, local or foreign Law) entered into prior to Closing, (C) installment sale or open transaction disposition made on or prior to the Closing, (D)
prepaid amount or deferred revenue received on or prior to the Closing, (E) any intercompany transaction or excess loss amount account described in Treasury Regulations under Section 1502 of the Code (or any similar provision of
state, local of foreign law), or (F) a gain recognition agreement under Section 367 of the Code (or any corresponding or similar provision of applicable Tax Law), or (ii) pay any amount of Tax in respect of an election pursuant to
Section 965(h) of the Code.
(j) None of the Company or any of its Subsidiaries has been either a “distributing corporation” or a “controlled corporation” in a
distribution occurring during the two-year period ending on the date hereof in which the parties to such distribution treated the distribution as one to which Section 355 of the Code is applicable.
(k) None of the Company or any of its Subsidiaries has participated in any “listed transaction” within the meaning of Treasury
Regulation Section 1.6011-4(b).
(l) There are no issued, requested or pending private letter rulings, advance pricing agreements or similar agreements with any
Governmental Entity with respect to Taxes that would bind the Company or any of its Subsidiaries following the Closing.
(m) The Company and its Subsidiaries have not deferred the payment of any Tax pursuant to the CARES Act that remains unpaid.
(n) The Company and its Subsidiaries have made available all documentation relating to any material Tax holidays, deferrals or
incentives granted by any Governmental Authority to any of them and are in compliance in all material respects with the requirements for any such Tax holidays, deferrals or incentives.
(o) The entity classification for U.S. federal income tax purposes of each of the Company and its Subsidiaries as of the date hereof
is set forth in Section 5.12(o) of the Company Disclosure Schedule, together with the effective date of any entity classification election for U.S. federal income tax purposes.
(p) The Company and its Subsidiaries have complied in all material respects with all applicable Laws regarding the preparation and
maintenance of all documentation required to substantiate the transfer pricing practices and methodologies of the Company and its Subsidiaries.
(q) The Company and its Subsidiaries have complied in all material respects with all applicable rules regarding the registration
for, and collection and remittance of, goods and services, value-added, or similar Taxes.
(r) Neither the Company nor any of its Subsidiaries has any material liability in respect of escheat or unclaimed property.
Notwithstanding anything to the contrary in this Agreement, other than the representations and warranties set forth in Section 5.5, Section 5.7, and Section 5.14
(in each case, to the extent relating to Tax matters), this Section 5.12 contains the exclusive representations and warranties of the Company with respect to Tax matters.
Section 5.13 Proceedings. Except as set forth in Section
5.13 of the Company Disclosure Schedule, there are no Actions of any kind whatsoever, at Law or in equity, pending, or to the Knowledge of the Company, threatened against the Company or any of its Subsidiaries or any of their
respective properties or assets, except as would not (i) reasonably be expected, individually or in the aggregate, to be material to the Company and its Subsidiaries, taken as a whole or (ii) reasonably be expected to materially
impair or delay the Company’s ability to perform its obligations under this Agreement and the other Transaction Agreements or consummate the transactions contemplated hereby or thereby. None of the Company, any of its Subsidiaries,
any member of the Seller Group or any of their respective properties or assets is subject to any Governmental Order, except as would not reasonably be expected, individually or in the aggregate, to be material to the Company and its
Subsidiaries, taken as a whole.
Section 5.14 Benefit Plans.
(a) Section 5.14(a) of the Company Disclosure Schedule sets forth a true and complete list of each material Company Benefit Plan as
of the date of this Agreement. With respect to each material Company Benefit Plan, the Company has made available to Purchaser a current, complete and accurate copy (or to the extent no copy exists, an accurate summary) of (i) each
such Company Benefit Plan, including any material amendments thereto, (ii) any trust, insurance, annuity or other funding instrument related thereto, (iii) any summary plan description of a Company Benefit Plan, (iv) for the most
recent year and to the extent applicable, (A) audited financial statements, (B) actuarial or other valuation reports prepared with respect thereto (where such statements or reports are required to be prepared under applicable Law or
otherwise reasonably available) and (C) Form 5500 and attached schedules, (v) all determination letters issued by the IRS or the United States Department of Labor and (vi) all still open material correspondence with a Governmental
Entity since January 1, 2020. The Company has made available to Purchaser true, correct and complete copies of all form restrictive covenants currently applicable to any current or former employee of the Company or any of its
Subsidiaries and a list of employees that have executed such forms.
(b) Except as set forth on Section 5.14(b) of the Company Disclosure Schedule:
(i) Neither the Company nor any of its Subsidiaries has (A) during the six-year period immediately preceding the
date hereof, been the sponsor of, contributed to or been obligated to make contributions to, or otherwise incurred any liability with respect to, a “multiemployer plan” (as defined in Title I or Title IV of ERISA), a plan subject to
Title IV or Section 302 of ERISA or Section 412 or 4971 of the Code, or a plan that has two or more contributing sponsors at least two of whom are not under common control, within the meaning of Section 4063 of ERISA, (B) incurred or
would be reasonably expected to incur any material liability or obligation with respect to a defined benefit plan (including any amount that is or could become due by virtue of Section 75 or Section 75A of the Pensions Act 1995 as
amended by subsequent regulations), (C) engaged in any prohibited transaction (as defined in Section 406 of ERISA or Section 4975 of the Code) with respect to any Company Benefit Plan that would be reasonably likely to subject the
Company to any material Tax or penalty (civil or otherwise) imposed by ERISA or the Code or (D) or would reasonably be expected to have, following the Closing, any liability (contingent or otherwise) with respect to clauses (A)
through (C) above as a result of their affiliation with any Person that would be or, at any relevant time, would have been considered a single employer with the Company or any of its Subsidiaries under the Code or ERISA (or any
similar state, local or foreign law);
(ii) each Company Benefit Plan that is intended to be Tax-qualified under Section 401(a) of the Code has received
a favorable determination letter or opinion letter from the Internal Revenue Service as to its qualification and is so qualified, and no circumstances exist that would reasonably be expected to affect the qualified status of any such
Company Benefit Plan;
(iii) each Company Benefit Plan has been maintained and operated in compliance in all material respects with its
respective terms and all applicable Laws, and all contributions required under the terms of each Company Benefit Plan or applicable Laws or otherwise, and all premiums due or payable with respect to insurance policies funding any
Company Benefit Plan, have been timely made or paid in all material respects, or to the extent a contribution is premium is not required to be made or paid on or before the date hereof, have been fully reflected on the reflected on
the Financial Statements in accordance with GAAP;
(iv) neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated
hereby (whether alone or in connection with any other event), will directly or indirectly (w) result in any payment or benefit (including, without limitation, severance, unemployment compensation, golden parachute or otherwise)
becoming due to any director, officer, employee or other service provider of the Company or its Subsidiaries, (x) increase any compensation or benefits otherwise payable to any director, officer, employee or other service provider of
the Company or its Subsidiaries, (y) result in any acceleration of the timing of payment, vesting, exercisability, funding or delivery of any compensation or benefits, or (z) result in any limitation on the right of the Company or its
Subsidiaries to amend, merge, terminate or receive a reversion of assets from any Company Benefit Plan or related trust;
(v) none of the Company Benefit Plans provides medical or other welfare benefits to any retired Person, or any
current or former employee or other service provider of the Company or its Subsidiaries following such individual’s retirement or other termination of employment or service, except as required by applicable Law (including Section
4980B of the Code);
(vi) no amount paid or payable (whether in cash, in property or in the form of benefits) by the Company or its
Subsidiaries in connection with the transactions contemplated hereby (whether alone or in combination with other events) will be an “excess parachute payment” within the meaning of Section 280G of the Code. No Company Benefit Plan
provides for the gross-up or reimbursement of Taxes under Section 4999 or 409A of the Code or otherwise;
(vii) there are no material claims pending or, to the knowledge of the Company, threatened (other than routine
claims for benefits in the ordinary course of business) or other proceedings, and, to the knowledge of the Company, no set of circumstances exists that may reasonably give rise to a claim or other proceeding, against the Company
Benefit Plans, any fiduciaries thereof or the assets of any trusts related thereto that would reasonably be expected to result in any material liability of the Company or its Subsidiaries, and no Company Benefit Plan is under audit or
the subject of an investigation by any Governmental Entity, nor, to the knowledge of the Company, is any such audit or investigation pending or threatened; and
(viii) each Company Benefit Plan that is in any part a “nonqualified deferred compensation plan” subject to Section
409A of the Code complies and has complied, both in form and operation, with the requirements of Section 409A of the Code and the final regulations and other applicable guidance thereunder.
Section 5.15 Compliance with Applicable Law; Permits.
(a) Except as would not reasonably be expected, individually or in the aggregate, to be material to the Company and its Subsidiaries,
taken as a whole, since January 1, 2019, (i) the Company and each of its Subsidiaries has been and is in compliance with all applicable Laws, (ii) the Company and each of its Subsidiaries has possessed all licenses, permits,
registrations, permanent certificates of occupancy, authorizations, and certificates issued by the applicable Governmental Entity necessary to operate its business as currently conducted (collectively, “Permits”), (iii) all Permits have been and are valid and in good standing (to the extent such concept is applicable) and have been and are in full force and effect, (iv) the Company and the Company’s
Subsidiaries are in compliance with the terms of such Permits, and (v) all material fees and charges with respect to such Permits as of the date of this Agreement have been paid in full.
(b) Except as set forth in Section 5.15(b) of the Company Disclosure Schedule or as would not reasonably be expected, individually or
in the aggregate, to be material to the Company and its Subsidiaries, taken as a whole, since January 1, 2019, none of the Company or any of its Subsidiaries has received any written notice from any Governmental Entity regarding any
actual, alleged, possible or potential violation of, or failure to comply with, any Law or Governmental Order applicable to the Company or any of its Subsidiaries or by which any properties or assets owned or used by the Company or
any of its Subsidiaries are bound or affected.
Section 5.16 Environmental Matters.
(a) Except as set forth in Section 5.16(a) of the Company Disclosure Schedule or as would not reasonably be expected, individually
or in the aggregate, to be material to the Company and its Subsidiaries, taken as a whole:
(i) the Company and each of its Subsidiaries (including with respect to their respective facilities and
operations on the Owned Real Property and the Leased Real Property) are, and since January 1, 2019 have been, in compliance with all Environmental Laws in all material respects;
(ii) the Company and each of its Subsidiaries possesses all Permits required under Environmental Law with respect
to the operation of its business as currently conducted (collectively, “Environmental Permits”), all Environmental Permits are valid and in good standing (to the extent such concept is
applicable) and are in full force and effect, and the Company and the Company’s Subsidiaries are in compliance with the terms of such Environmental Permits;
(iii) there are no Actions of any kind pursuant to Environmental Laws that are pending, or to the Knowledge of the
Company, threatened against the Company or any of its Subsidiaries or any of their respective properties or assets, and none of the Company or any of its Subsidiaries or any of their respective properties or assets is subject to any
Governmental Order relating to Environmental Laws;
(iv) there has been no Release of any Hazardous Material in violation of any Environmental Laws with respect to
the business or assets of the Company or any of its Subsidiaries (or any predecessor thereof) or any Owned Real Property or Leased Real Property, and the Company and its Subsidiaries have not, since January 1, 2019, received any
written notice that any Owned Real Property or Leased Real Property (including soils, groundwater, surface water, buildings, and other structure located on any such Owned Real Property or Leased Real Property) has been contaminated
with any Hazardous Material, in each case which Release or contamination would reasonably be expected to result in a claim pursuant to any Environmental Law against, or a material violation of Environmental Laws or term of any
Environmental Permit by, the Company or its Subsidiaries;
(v) to the Knowledge of the Company, (1) no current conditions exist with respect to any of the Owned Real
Property or Leased Real Property that would reasonably be expected to result in an obligation of the Company or any of its Subsidiaries to investigate or remediate such conditions under Environmental Law and (2) neither the Company
nor any of its Subsidiaries has assumed, undertaken, or otherwise become subject to, any liability of any other Person relating to Environmental Laws or Hazardous Material;
(vi) neither the Company nor any of its Subsidiaries is subject to any outstanding Governmental Order related to
any Environmental Laws, Environmental Permits or Hazardous Material with respect to which any such Person has any future obligations related to any Environmental Laws, Environmental Permits or Hazardous Material; and
(vii) since January 1, 2019, neither the Company nor any of its Subsidiaries nor any member of the Seller Group
have received from any Governmental Entity any written notice of violation of any Environmental Law with respect to the Owned Real Property or the Leased Real Property, other than any such violation that has been resolved.
Section 5.17 Brokers and Finders. No agent, broker,
investment banker, financial advisor or other Person, other than RBC Capital Markets, LLC and Goldman Sachs & Co. LLC, is or will become entitled, by reason of any Contract entered into or made by or on behalf of the Company, to
receive any commission, brokerage, finder’s fee or other similar fee or compensation in connection with the consummation of the transactions contemplated by this Agreement other than any commission, brokerage, finder’s fee or other
similar fee or compensation which will be included in the calculation of Company Transaction Expenses.
Section 5.18 Labor and Employment Matters.
(a) Except as set forth in Section 5.18(a) of the Company Disclosure Schedule, (a) there are no and since January 1, 2020 has not
been any pending, or to the Knowledge of the Company, threatened in writing, Actions by or on behalf of any current, prospective or former employee or other non-employee individual service provider which would reasonably be expected
to result in any material liability of the Company or its Subsidiaries, (b) none of the Company or any of its Subsidiaries is or since January 1, 2020 has been a party to, bound by or in the process of negotiating any collective
bargaining or other labor agreement with respect to any employees of the Company or any of its Subsidiaries, and (c) to the Knowledge of the Company, there are no and since January 1, 2020 have not been pending union organizational
activities or proceedings with respect to employees of the Company or any of its Subsidiaries. Since January 1, 2020, except as would not be material, there has not been any labor strikes, slowdowns, stoppages, arbitrations,
grievances or other labor disputes pending or, to the Knowledge of the Company, threatened in writing against the Company or any of its Subsidiaries. There is no unfair labor practice charge or complaint against the Company or its
Subsidiaries pending or, to the Knowledge of the Company, threatened before the National Labor Relations Board. Since January 1, 2020, the Company has been in compliance in all material respects with all applicable Laws relating to
employment and employment practices, including terms and conditions of employment, wages and hours, employment discrimination, employee classification, workers’ compensation, family and medical leave, immigration and occupational
safety and health requirements, and no claims or legal proceedings are pending or, to the Knowledge of the Company, threatened with respect to the foregoing. Except as would not be material, each individual who renders services to
the Company or its Subsidiaries who is classified as an independent contractor, consultant or other non-employee status for any purpose (including for purposes of taxation and Tax reporting and under the Company Benefit Plans) is
properly so characterized. To the Knowledge of the Company, no material allegations of sexual harassment or other sexual misconduct have been made against any current or former employee or other non-employee individual service
provider of the Company or its Subsidiaries, in their capacity as such. Neither the Company nor any of its Subsidiaries have been a party to or involved in any material proceedings, or entered into any material settlement agreements,
related to allegations of sexual harassment or misconduct by any current or former employee or other service provider of the Company or its Subsidiaries.
(b) Section 5.18(b) of the Company Disclosure Schedule sets forth an anonymized list of each employee of the Company and its
Subsidiaries, including with respect to each such employee, to the extent permitted by applicable Law, the job position or title, status (active or on approved leave), status as full-time, part-time or temporary employee, annual base
salary rate or hourly base pay rate, cash and equity incentive opportunities (if applicable), exempt/non-exempt status, primary work location, hire date (or, if different, service commencement date) and whether subject to a collective
bargaining agreement or similar labor agreement.
Section 5.19 Company Material Contracts.
(a) Section 5.19(a) of the Company Disclosure Schedule sets forth a listing of the following Contracts of the following types to
which the Company or any of its Subsidiaries is a party or by which any assets of the Company or any of its Subsidiaries are bound or are subject as of the date hereof (other than the Company Benefit Plans); provided, that the Company
shall not be required to list or provide copies of any purchase orders, statements of work or similar Contracts on Section 5.19(a) of the Company Disclosure Schedule to the extent such purchase orders, statements of work and similar
Contracts (A) have been made available to Purchaser or (B) are on terms which do not differ from those that have been made available to Purchaser in a manner that is materially detrimental to the Company or its Subsidiaries, but such
purchase orders, statements of work and similar Contracts (solely to the extent meeting the criteria of any of the following types of Contracts set forth in this Section 5.19(a)) shall still be considered Company Material
Contracts:
(i) each Contract with (A) any of the top fifteen (15) customers (including distributors and resellers but
excluding members of the Seller Group) (each such customer, a “Material Customer”) of the Company and its Subsidiaries, (B) any of the top fifteen
(15) suppliers (each such supplier, a “Material Supplier”) of the Company and its Subsidiaries and (C) except as otherwise provided in the foregoing clauses (A) or (B), any other Persons
that provide for payment or receipt by the Company or any of its Subsidiaries of more than $750,000 per year, including any such Contracts with customers or clients (in each case of clauses (A) through (C), determined on a
consolidated basis based on amounts received or paid during the twelve (12)-month period ending on January 2, 2023);
(ii) each joint venture agreement, partnership or limited liability company agreement (excluding any
organizational documents of the Company or its Subsidiaries), collaboration, profit-sharing (or loss-sharing), strategic alliance, co-promotion, commercialization, research, development or other similar agreement;
(iii) Contracts for the sale, assignment, transfer or other disposition of assets of the Company or any of its
Subsidiaries (A) since January 1, 2020, for aggregate consideration under such Contract of $1,000,000 or more other than in the ordinary course of business consistent with past practice or (B) under which the Company or any of its
Subsidiaries has any material continuing liability or obligation;
(iv) Contracts providing for the acquisition or disposition by the Company or any of its Subsidiaries of any
business, division or product line (whether by merger, sale of stock, sale of assets or otherwise), or capital stock of any other Person, in each case, (A) since January 1, 2016, with a purchase price in excess of $1,000,000 or (B)
pursuant to which any “earn-out,” contingent purchase price, deferred purchase price, notes payable, royalty payment, indemnity or other similar obligations of the Company or its Subsidiaries remain outstanding;
(v) any Contract evidencing or guaranteeing or providing for the incurrence of Indebtedness in excess of
$4,000,000;
(vi) any Contract under which an Encumbrance (other than a Permitted Encumbrance) has been imposed on any of the
assets or properties of the Company and its Subsidiaries, excluding any such Contract that also evidences or guarantees indebtedness for borrowed money in an amount less than $1,000,000 and other than purchase money security interests
in connection with the acquisition of equipment in the ordinary course of business;
(vii) any Contract under which the Company or any of its Subsidiaries grants to, or receives from, a third party
any material licenses or other material rights to use any Intellectual Property, other than non-exclusive licenses (A) granted to customers, distributors, resellers and business partners in the ordinary course of business or (B) for
commercially available software, technology or data;
(viii) any Contract that limits or purports to limit the ability of the Company or any of its Subsidiaries to
compete or engage in any material respect in any line of business or with any Person or in any geographic area or during any period of time or that would so limit the freedom of Purchaser or its Affiliates or the Company and its
Subsidiaries after the Closing;
(ix) any Contract that obligates the Company or any of its Subsidiaries to conduct business on a “most favored
nation” basis with any third party, including with respect to pricing or terms of delivery or service level credits, or that contains exclusivity, right of first refusal or right of first offer obligations or restrictions;
(x) each material Lease;
(xi) any interest rate, currency or other hedging Contracts;
(xii) any non-competition or non-solicitation Contract with any current or former officer, employee or independent
contractor of the Company or its Subsidiaries who provides or has provided services wholly or primarily to or on behalf of the Company or its Subsidiaries and whose total annual cash compensation from the Company and its Subsidiaries
for the last completed fiscal year is at least $250,000;
(xiii) any (A) Affiliate Arrangement or (B) Contract (or group of related Contracts) under which the Company or any
of its Subsidiaries has advanced or loaned any amount to any of the Seller Group’s directors, officers, employees or contractors;
(xiv) any Contract that (A) involves the resolution or settlement of any Action in an amount greater than $250,000
that has not been fully performed by the Company and its Subsidiaries or (B) imposes any continuing material obligations on the Company or any of its Subsidiaries;
(xv) any Contract or group of Contracts (A) involving any individual capital expenditure in excess of $750,000 in
the fiscal year ended January 2, 2023, or (B) involving a remaining commitment by the Company or its Subsidiaries to pay any individual capital expenditure or series of related capital expenditures in excess of $750,000; and
(xvi) any Contracts with any Governmental Entity (other than Permits and Contracts pursuant to which any
Governmental Entity is a customer or client of the Company or any of its Subsidiaries).
(b) The Company has made available true, correct and complete copies of each Contract required to be identified in Section 5.19(a)
of the Company Disclosure Schedule (collectively, the “Company Material Contracts”) to Purchaser, together with any and all amendments and supplements thereto and material statements of
work, “side letters” and waivers that affect and provide for rights and/or obligations of the Company and its Subsidiaries following the Closing and similar documentation relating thereto (other than any such documents, which shall
not be required to be made available, that are on terms which do not differ from those that have been made available to Purchaser in a manner that is materially detrimental to the Company or its Subsidiaries). Except as would not
reasonably be expected, individually or in the aggregate, to be material to the Company and its Subsidiaries, taken as a whole, (i) each of the Company Material Contracts (other than Contracts no longer in effect after the date of
this Agreement that have expired in accordance with their terms or have been terminated in accordance with this Agreement) are in full force and effect, are valid and binding on the Company and any of its Subsidiaries to the extent
that the Company or such Subsidiary is a party thereto, and to the Knowledge of the Company, the other parties thereto, and are enforceable in accordance with their respective terms, subject in each case to the Enforceability
Exceptions, (ii) the Company and each of its Subsidiaries (as the case may be) has performed all obligations required to be performed by it pursuant to such Company Material Contracts, and (iii) none of the Company or any of its
Subsidiaries or, to the Knowledge of the Company, any other party thereto, is in default or breach or violation in any material respect under the terms of, or has provided or received any notice of any intention to modify, terminate,
or fail to renew any such Company Material Contract, and, to the Knowledge of the Company, no event or circumstance has occurred that with notice or lapse of time would constitute an event of default thereunder.
Section 5.20 Customers and Suppliers. Section 5.20 of the Company Disclosure Schedule sets forth a true and complete list of
the Material Customers and the Material Suppliers. Neither Seller nor the Company nor any of its Subsidiaries or Representatives has received any written notice from any Material Supplier that such supplier will terminate or cancel
any Company Material Contract to which it is a party or stop, decrease the rate of, or change the material terms (whether related to payment, price or otherwise) with respect to supplying materials, products or services to the Company
and its Subsidiaries. Neither the Company nor any of its Subsidiaries has received any written notice from any Material Customer that such customer will terminate or cancel any Company Material Contract to which it is a party or
stop, or materially decrease the rate of, purchasing services and/or products of the Company and its Subsidiaries (whether as a result of the consummation of the transactions contemplated by this Agreement or otherwise).
Section 5.21 Foreign Corrupt Practices Act; Export Control and Sanctions; Anticorruption.
(a) (i) None of the Company nor any of its Subsidiaries, their directors, officers or employees or, to the Knowledge of the Company,
any agent or other Person acting on their behalf has violated any provision of the Foreign Corrupt Practices Act of 1977, as amended, and any rules or regulations promulgated thereunder (the “FCPA”),
(ii) the Company and its Subsidiaries make and keep books, records, and accounts that accurately and fairly reflect transactions and the distribution of the assets of the Company and its Subsidiaries, and maintain a system of internal
accounting controls sufficient to provide reasonable assurances that actions are taken in accordance with management’s directives and are properly recorded, in each case in accordance with the FCPA, and (iii) the Company and its
Subsidiaries have effective disclosure controls and procedures and an internal accounting controls system that is sufficient to provide reasonable assurances that violations of the FCPA will be prevented, detected and deterred.
(b) Since January 1, 2018, (i) neither the Company nor any of its Subsidiaries has violated, in connection with the business of the
Company and its Subsidiaries, any Law relating to anti-bribery or anticorruption, including the U.S. Foreign Corrupt Practices Act of 1977, as amended, and the U.K. Bribery Act 2010, in each case, as in effect at the time of such
action (all such Laws, “Anticorruption Laws”), (ii) no director, officer, or employee, or, to the Knowledge of the Company, agent, representative, consultant or other Person acting for or on behalf of the Company has, with respect to
the business of the Company and its Subsidiaries, violated any Anticorruption Law, and (iii) none of the Seller, the Company or any of their respective Subsidiaries has received any notice alleging any such violation of any
Anticorruption Law.
(c) Since January 1, 2018, the Company and each of its Subsidiaries has been in compliance with the trade control aspects of the U.S.
Export Administration Regulations, the International Traffic in Arms Regulations (“ITAR”), Section 999 of the Code, the U.S. customs regulations, the Foreign Trade Regulations,
regulations administered by the Bureau of Alcohol, Tobacco, Firearms and Explosives and any other U.S. or non-U.S. applicable Laws pertaining to export and import controls, tariffs, safeguards, antidumping and countervailing duties,
quotas, antiboycott, and foreign trade zones (collectively, “Trade Control Laws”).
(d) Since January 1, 2018, (i) the Company and each of its Subsidiaries, and their directors, officers, employees, and to the
Knowledge of the Company, other Representatives acting on their behalf have been in compliance with Sanctions, and (ii) none of the Company, any of its Subsidiaries, or any of their respective directors, officers, employees and to the
Knowledge of the Company, other Representatives acting on their behalf has engaged in, nor is now engaging in, directly, or, to the Knowledge of the Company, indirectly, any dealings or transactions in a Sanctioned Country or with a
Sanctioned Person. None the Company, any of its Subsidiaries, or any of their respective directors, officers, or employees, nor, to the Knowledge of the Company, any other Representative or customer thereof or any other Person
authorized to act for or on behalf of the Company or any of its Subsidiaries is a Sanctioned Person or a target of Sanctions or other restrictions under Trade Control Laws.
(e) Since January 1, 2018, there have been no claims, complaints, charges, investigations, voluntary or directed disclosures,
administrative subpoenas inquiries, audits, enforcement actions or other Actions involving the Company or any of its Subsidiaries pertaining to any Sanctions or Trade Control Laws, and there are no pending or, to the Knowledge of the
Company, threatened claims or investigations involving suspected or confirmed violations thereof.
(f) The Company and its Subsidiaries have instituted and maintain policies and procedures designed to ensure continued compliance
with Anticorruption Laws, Trade Control Laws and Sanctions.
Section 5.22 Related Party Transactions. Except as set forth in Section 5.22 of the Company Disclosure Schedule, no member
of the Seller Group, equityholder, director or officer or employee of any of the foregoing) has any interest, directly or indirectly, in any Affiliate Arrangements, or property (real, personal or mixed, tangible or intangible) or
asset used in, pertaining to or owned by, or any interest in any supplier of, the Company or any of its Subsidiaries, except solely in such Person’s capacity as an equityholder, director, officer, or employee, as applicable, of the
Company or any of its Subsidiaries (other than, in the case of any employee, officer or director, any employment Contract or Contract with respect to the issuance of equity in the Seller or any other Company Benefit Plan). Except as
expressly set forth therein or Section 7.9, as of the Closing, all items set forth on Section 5.22 of the Company Disclosure Schedule shall have been terminated, with no fees or amounts due thereunder.
Section 5.23 Inventory. Except as would not reasonably be expected, individually or in the aggregate, to be material to the
Company and its Subsidiaries, taken as a whole, all Inventory (including finished goods) (i) has been valued and specifically and adequately reserved for in accordance with GAAP, (ii) has been manufactured, assembled, tested and
stored in compliance in all material respects with applicable Law, (iii) is free of material defects in materials, fabrication and workmanship, and (iv) is suitable for use or sale in the ordinary course of business in all material
respects and in compliance in all material respects with applicable Law.
Section 5.24 Sufficiency of Assets. At the Closing, the Company will own or have the right to use (including by means of
ownership of rights pursuant to licenses or other Contracts, in each case, that have been provided to Purchaser) all of the material assets, properties and rights necessary to conduct the business of the Company and its Subsidiaries
immediately following the Closing in substantially the same manner as conducted as of the date of this Agreement and as of the Closing, and constitute all the material rights, property and assets currently used in the operation of
such business as currently conducted. All activities and operations of the business of the Company and its Subsidiaries are conducted solely by the Company and its Subsidiaries.
Section 5.25 Accounts Receivable. All accounts receivable reflected on the Latest Company Balance Sheet and all accounts
receivable arising after the date thereof (i) have arisen from bona-fide transactions entered into by the Company and its Subsidiaries involving the sale of goods or the rendering of services (or, in the case of non-trade accounts or
notes, represent amounts receivable in respect of other bona-fide business transactions) in the ordinary course of business and (ii) constitute only valid, undisputed claims of the Company and its Subsidiaries, not subject to claims
of set-off or other defenses, other than counterclaims, normal discounts and returns in the ordinary course of business.
Section 5.26 Products Liability.
(a) Except as would not reasonably be expected, individually or in the aggregate, to be material to the Company and its Subsidiaries,
taken as a whole, each product designed, formulated, manufactured or sold by the Company and its Subsidiaries since January 1, 2020 is in conformity in all material respects with all applicable product specifications, applicable
express and implied warranties and applicable Law.
(b) Except as would not reasonably be expected, individually or in the aggregate, to be material to the Company and its Subsidiaries,
taken as a whole, since January 1, 2020, there has been no notice, demand, claim, action, suit inquiry, hearing proceeding, notice of violation or investigation from, by or before any Governmental Entity relating to any product,
including the packaging and advertising related thereto, designed, formulated, manufactured, processed or sold by the Company or any of its Subsidiaries or any service provided by the Company or any of its Subsidiaries or any claim or
lawsuit or Action involving such products or services which is pending or, to the Knowledge of the Company, threatened by any Person, alleging that any such product is materially defective or not in conformity in all material respects
with the applicable product specification, applicable express or implied warranties or applicable Law.
(c) Except as would not reasonably be expected, individually or in the aggregate, to be material to the Company and its Subsidiaries,
taken as a whole, since January 1, 2020, there has not been, nor is there under consideration by the Company or any of its Subsidiaries, any product recall or post-sale warning of a material nature conducted by or on behalf of the
Company or any of its Subsidiaries concerning any products of or sold by the Company or any of its Subsidiaries.
Section 5.27 Disclaimer of Warranties. EXCEPT AS OTHERWISE
EXPRESSLY SET FORTH IN THIS ARTICLE V AND THE REPRESENTATIONS AND WARRANTIES MADE BY SELLER IN ARTICLE IV (AS MODIFIED BY THE COMPANY DISCLOSURE SCHEDULE), THE COMPANY EXPRESSLY DISCLAIMS ANY REPRESENTATIONS OR
WARRANTIES OF ANY KIND OR NATURE, EXPRESS OR IMPLIED, AS TO THE CONDITION, VALUE OR QUALITY OF THE COMPANY OR THE COMPANY’S ASSETS, AND, EXCEPT AS EXPRESSLY SET FORTH IN THIS ARTICLE V AND IN THE REPRESENTATIONS AND
WARRANTIES MADE BY SELLER IN ARTICLE IV, THE COMPANY SPECIFICALLY DISCLAIMS ANY REPRESENTATION OR WARRANTY OF MERCHANTABILITY, USAGE, SUITABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE WITH RESPECT TO THE COMPANY’S ASSETS, OR
AS TO THE WORKMANSHIP THEREOF, OR THE ABSENCE OF ANY DEFECTS THEREIN, WHETHER LATENT OR PATENT, IT BEING UNDERSTOOD THAT SUCH SUBJECT ASSETS ARE BEING ACQUIRED “AS IS, WHERE IS” ON THE CLOSING DATE, AND IN THEIR PRESENT CONDITION,
AND PURCHASER SHALL RELY ON THEIR OWN EXAMINATION AND INVESTIGATION THEREOF. EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES CONTAINED IN THIS ARTICLE V AND THE REPRESENTATIONS AND WARRANTIES MADE BY SELLER IN ARTICLE IV
(AS MODIFIED BY THE COMPANY DISCLOSURE SCHEDULE), THE COMPANY HEREBY DISCLAIMS ALL LIABILITY AND RESPONSIBILITY, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, FOR ANY REPRESENTATION, WARRANTY, STATEMENT, OR INFORMATION MADE,
COMMUNICATED, OR FURNISHED (ORALLY OR IN WRITING) TO PURCHASER OR ITS AFFILIATES OR REPRESENTATIVES (INCLUDING ANY OPINION, INFORMATION, PROJECTION, OR ADVICE THAT MAY HAVE BEEN OR MAY BE PROVIDED TO PURCHASER BY ANY STOCKHOLDER,
DIRECTOR, OFFICER, EMPLOYEE, AGENT, CONSULTANT, OR REPRESENTATIVE OF THE COMPANY OR ANY OF ITS AFFILIATES). THE COMPANY DOES NOT MAKE NOR HAS THE COMPANY MADE ANY REPRESENTATIONS OR WARRANTIES TO PURCHASER REGARDING ANY PROJECTION
OR FORECAST REGARDING FUTURE RESULTS OR ACTIVITIES OR THE PROBABLE SUCCESS OR PROFITABILITY OF THE COMPANY.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser represents and warrants to the Company and Seller as follows:
Section 6.1 Organization and Good Standing. Purchaser is
duly organized, validly existing and in good standing under the Laws of the jurisdiction of its formation. Purchaser (a) has all requisite power and authority to own and lease its assets and to operate its business as the same
are now being owned, leased and operated and (b) is duly qualified or licensed to do business as a foreign entity in, and is in good standing in, each jurisdiction in which the nature of its business or its ownership of its
properties requires it to be so qualified or licensed, except in each case where the failure to have such power or authority or be so qualified or licensed would not reasonably be expected to materially impair or delay Purchaser’s
ability to perform its respective obligations under this Agreement and the other Transaction Agreements or consummate the transactions contemplated hereby or thereby.
Section 6.2 Authority; Execution and Delivery; Enforceability.
(a) Purchaser possesses all requisite legal right, power and authority to execute, deliver and perform this Agreement and the
other Transaction Agreements, and to consummate the transactions contemplated herein and therein. The execution, delivery and performance by Purchaser of this Agreement and the other Transaction Agreements and the consummation by
Purchaser of the transactions contemplated hereby and thereby have been duly and validly authorized by all requisite corporate or other entity action on the part of Purchaser and no other corporate or other entity proceeding on the
part of Purchaser is necessary to authorize this Agreement and the other Transaction Agreements or to consummate the transactions contemplated hereby or thereby.
(b) This Agreement has been, and the other Transaction Agreements will upon delivery be, duly executed and delivered by Purchaser
and, assuming due authorization, execution and delivery by each of the other parties hereto and thereto, constitutes, or will upon such delivery constitute, the legal, valid and binding obligation of Purchaser, enforceable in
accordance with its terms, except to the extent such enforcement may be limited by the Enforceability Exceptions.
Section 6.3 No Conflicts; Consents.
(a) Assuming all Governmental Filings and waiting periods described in or contemplated by Section 5.4(b), Section 4.4(b) and
Section 6.3(b) have been obtained or made, or have expired, the execution, delivery and performance of this Agreement and the other Transaction Agreements by Purchaser and the consummation by Purchaser of the transactions
contemplated hereby and thereby will not (i) violate any applicable Law or Governmental Order to which Purchaser is subject, (ii) with or without notice, lapse of time or both, conflict with, result in a violation or breach of, or
constitute a default under, result in the acceleration, termination or cancellation of or create in any party the right to accelerate, terminate or cancel any material Contract to which Purchaser or any of its Subsidiaries is a
party or by which any of their respective properties, rights or assets is bound, (iii) result in the creation of any Encumbrance (other than any Permitted Encumbrance) on any properties, rights or assets of Purchaser or (iv) violate
the certificate of incorporation or bylaws or comparable governing documents, each as amended to the date of this Agreement, of Purchaser, other than, in the case of clauses (i), (ii) and (iii) above, any such violations, conflicts,
breaches, defaults, accelerations, terminations, cancellations, rights or Encumbrances that would not reasonably be expected to materially impair or delay the Purchaser’s ability to perform its obligations under this Agreement and
the other Transaction Agreements or consummate the transactions contemplated hereby or thereby.
(b) No Governmental Filings are required to be obtained or made by Purchaser in connection with the execution, delivery and
performance of this Agreement by the Company or the consummation by Purchaser of the transactions contemplated hereby except (i) compliance with and filings under the HSR Act; (ii) Governmental Filings set forth on Section 6.3(b) of
the Purchaser Disclosure Schedule; and (iii) such other Governmental Filings, the failure of which to be obtained or made would not, individually or in the aggregate, be material to the Company and its Subsidiaries, taken as a
whole, and would not be expected to materially impair or delay the ability of Purchaser to consummate the transactions contemplated by this Agreement.
Section 6.4 Proceedings. Except as set forth on Section
6.4 of the Purchaser Disclosure Schedule, there is no Action of any kind whatsoever, at Law or in equity, pending, or threatened in writing against Purchaser or any of its Subsidiaries that would reasonably be expected to
materially impair or delay Purchaser’s ability to perform its respective obligations under this Agreement and the other Transaction Agreements or consummate the transactions contemplated hereby or thereby.
Section 6.5 Brokers and Finders. No agent, broker,
investment banker, financial advisor or other Person is or will become entitled to receive any commission, brokerage, finder’s fee or other similar compensation in connection with the consummation of the transactions contemplated
by this Agreement based upon arrangements made by or on behalf of Purchaser for which the Company could have any liability prior to Closing.
Section 6.6 Financing.
(a) As of the date of this Agreement, Purchaser has delivered to Seller a true, complete and correct copy of
the fully executed debt commitment letter, together with any related fee letters (in the case of the fee letters, redacted for pricing flex terms, fees, and other economic terms (any such fee letter, a “Fee Letter”)), dated as of the date of this Agreement, by and among the Financing Entities party thereto and Purchaser (together, the “Commitment Letter”),
pursuant to which, upon the terms and subject to the conditions set forth therein, the Financing Entities party thereto have agreed to lend the amounts set forth therein (the “Financing”).
(b) As of the date of this Agreement, the Commitment Letter is in full force and constitutes the valid,
binding and enforceable obligation of Purchaser and, to the Knowledge of Purchaser, the other parties thereto (subject to the Enforceability Exceptions). As of the date of this Agreement, there are no conditions precedent related
to the funding of the full amount of the Financing needed for the Financing Amount (as defined below) and contemplated by the Commitment Letter other than the conditions precedent expressly set forth in the Commitment Letter (such
conditions precedent, the “Financing Conditions”).
(c) As of the date of this Agreement, the Commitment Letter has not been amended or modified in any manner, no
such amendment or modification is contemplated and none of the commitments contained therein have been terminated, reduced, withdrawn or rescinded by Purchaser or, to the Knowledge of Purchaser, any other party thereto.
(d) As of the date of this Agreement, Purchaser has no reason to believe that, assuming the satisfaction of the
conditions set forth in Section 8.1 and Section 8.2, (i) any of the Financing Conditions are not capable of being satisfied on or prior to the Closing Date or (ii) any portion of the Financing necessary to pay the
Financing Amount will not be available to Purchaser on the Closing Date.
(e) As of the date of this Agreement, no event has occurred that, with or without notice, lapse of time or
both, would or would reasonably be expected to constitute a default or breach by Purchaser or, to the Knowledge of Purchaser, any other party to the Commitment Letter, under the terms and conditions of the Commitment Letter.
(f) There are no side letters relating to the Commitment Letter or the Financing to which Purchaser or any of
its Affiliates is a party that impose conditions to the Financing or reduce the amount of the Financing below the amount required to satisfy the Financing Amount.
(g) Assuming the satisfaction of the conditions set forth in Section 8.1 and Section 8.2, the aggregate net proceeds from the
Financing will be in an amount, when funded in accordance with the Commitment Letter, and when taken together with cash of Purchaser and its Subsidiaries and the Company and its Subsidiaries that is available at the Closing,
sufficient to make all payments required to be made by Purchaser under this Agreement, including payments contemplated by Section 2.3(a)(i) (the “Financing Amount”).
(h) The proceeds of the Financing derived from the Purchaser’s Sixth Amended and Restated Senior Unsecured Revolving Credit Agreement, dated as of
February 10, 2021 (as amended, restated, amended and restated, supplemented or otherwise modified from time to time on or prior to the date hereof), among Purchaser, certain of Purchaser’s subsidiaries party thereto from time to
time, the lenders and issuing banks party thereto from time to time, and Bank of America, N.A., as the administrative agent (or any amendment, amendment and restatement or refinancing of such revolving credit facility, in each case,
in accordance with the Commitment Letter as in effect on the date hereof), when taken together with cash of Purchaser and its Subsidiaries and the Company and its Subsidiaries that is available at the Closing, shall be sufficient to
fund, on a “certain funds” basis, a portion of the Financing Amount not otherwise covered by the senior secured bridge facility commitments contemplated under the Commitment Letter as in effect on the date hereof.
(i) Purchaser agrees and affirms that notwithstanding anything in this Agreement to the contrary, in no event shall the receipt or availability of
any funds or financing by or to Purchaser be a condition to the Closing or any of the obligations of Purchaser hereunder.
Section 6.7 Solvency. Assuming that (i) the conditions
to the obligation of Purchaser to consummate the Share Purchase set forth in Section 8.1 and Section 8.2 have been satisfied or waived, (ii) the representations and warranties set forth in Article V are,
subject to the terms and limitations set forth herein, true and correct and (iii) the compliance and performance by Seller and its Subsidiaries of their respective obligations hereunder in all material respects, then immediately
following the Closing and after giving effect to all of the transactions contemplated by this Agreement (including consummation of the Financing, the payment of the aggregate consideration to which the stockholders and other
equity holders of the Company are entitled under Article III, funding of any obligations of the Company or its Subsidiaries which become due or payable by the Company and its Subsidiaries in connection with, or as a result
of, the Share Purchase and payment of all related fees and expenses), the Company and its Subsidiaries, on a consolidated basis, will not: (i) be insolvent (either because its financial condition is such that the sum of its debts,
including contingent liabilities, is greater than the fair market value of its assets, on a consolidated basis, or because the then present fair saleable value of its assets, on a consolidated basis, is less than the amount
required to pay its probable liability on its existing debts, including contingent liabilities, as they mature), (ii) have unreasonably small capital for the operation of the businesses in which it is presently engaged or proposed
to be engaged, or (iii) have incurred debts, including contingent liabilities, beyond its ability to pay them as they become due.
Section 6.8 Investment Purposes.
(a) Purchaser is purchasing the Company Shares and, indirectly, the shares of capital stock or equity interests of the Company’s
Subsidiaries, for its own account for investment purposes and not with a view toward distribution or re-sale in violation of the Securities Act, and all other applicable securities Laws, rules or regulations. Purchaser is an
“accredited investor” as defined in Regulation D promulgated by the SEC under the Securities Act. Purchaser acknowledges that it is informed as to the risks of the transactions contemplated by this Agreement and of ownership of the
Company Shares.
(b) Purchaser acknowledges that none of the Company Shares or the shares of capital stock or equity interests of the Company
Subsidiaries has been registered under federal Law or qualified under state Law, but rather has been offered for sale in accordance with certain exemptions under applicable Law and that the Company Shares and the shares of capital
stock or equity interests of the Company Subsidiaries may not be resold by it unless they are subsequently registered or qualified under applicable Law, or an exemption from registration and qualification is then available.
Section 6.9 No Other Representations and Warranties. SELLER ACKNOWLEDGES THAT, EXCEPT FOR THE REPRESENTATIONS AND
WARRANTIES EXPRESSLY CONTAINED IN ARTICLE VI, NONE OF PURCHASER, ITS AFFILIATES NOR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR REPRESENTATIVES OR ANY OTHER PERSON ACTING ON BEHALF OF THE PURCHASER, ITS
AFFILIATES OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR REPRESENTATIVES MAKES ANY REPRESENTATION OR WARRANTY TO SELLER OR ANY OTHER PERSON, WHETHER EXPRESS OR IMPLIED, AT LAW OR IN EQUITY.
ARTICLE VII
COVENANTS
Section 7.1 Conduct of the Company’s Business. Except
(i) as set forth in Section 7.1 of the Company Disclosure Schedule, (ii) as otherwise expressly required by the terms of this Agreement or (iii) as required by applicable Law, from the date of this Agreement to the earlier of the
Closing and the termination of this Agreement in accordance with Article IX, Seller (A) shall (with respect to the Company and its Subsidiaries), and shall cause the Company and its Subsidiaries to (1) conduct the
Company’s and its Subsidiaries’ businesses only in the ordinary course of business consistent with past practice in all material respects and (2) use commercially reasonable efforts to (x) keep intact their respective businesses
and goodwill and (y) preserve their relationships with customers, suppliers, vendors, distributors, creditors, agents and others having business relationships with the Company and its Subsidiaries and keep available the services
of present senior officers and key employees of the Company and its Subsidiaries and (B) shall not, after the Adjustment Time, make any dividends or distributions of Cash or incur any Indebtedness or Company Transaction Expenses,
or take or fail to take any action with the intent of causing, or that would be reasonably expected to cause, components of the Final Purchase Price to change were such Final Purchase Price calculated as of the Closing instead of
as of the Adjustment Time. In addition (and without limiting the generality of the foregoing), except (I) as set forth in Section 7.1 of the Company Disclosure Schedule, (II) as expressly required by the terms of this Agreement
or (III) as required by applicable Law, from the date of this Agreement to the earlier of the Closing and the termination of this Agreement in accordance with Article IX, Seller shall (with respect to the Company and its
Subsidiaries), and shall cause the Company and its Subsidiaries to not do any of the following without the prior written consent of Purchaser (which consent shall not be unreasonably withheld, delayed or conditioned):
(a) (i) amend its certificate of incorporation or bylaws or similar governing instruments or (ii) issue, sell, transfer, or grant
options, warrants or rights to purchase or subscribe to, enter into any arrangement or contract with respect to the issuance, transfer or sale of, or redeem or repurchase any capital stock or other securities of the Company or any
of its Subsidiaries;
(b) other than as required pursuant to any Company Benefit Plan as in effect on the date hereof: (i) increase the compensation or
benefits of any current or former employee or other service provider of the Company or its Subsidiaries other than in the ordinary course of business consistent with past practice with respect to such employees or service providers
with a target annual compensation opportunity (base salary, target annual bonus and target long-term incentive opportunity, if any), of less than $250,000; (ii) grant any (x) severance, termination pay, change in control,
transaction or retention payments or benefits or (y) except as permitted by clause (i) immediately above, bonus or incentive compensation or other compensation or benefits; (iii) accelerate the vesting of or lapsing of restrictions
with respect to any compensation or benefits; (iv) establish, adopt, enter into, materially amend or terminate any Company Benefit Plan or any collective bargaining or other labor agreement, other than to conduct its annual renewal
and reenrollment of its broad-based health and welfare plans in the ordinary course of business consistent with past practice, or amend or waive any of its material rights under any Company Benefit Plan; (v) cause the funding of any
rabbi trust or similar arrangement or take any action to fund or in any other way secure the payment of compensation or benefits; (vi) hire or promote any employee or other service provider who has or would have a target annual
compensation opportunity of $250,000 or more; or (vii) terminate other than for cause the employment or service of any employee or other service provider with a target annual compensation opportunity of $250,000 or more;
(c) create, incur or assume any Indebtedness or issue any debt securities other than (i) Funded Indebtedness or (ii) other
Indebtedness in an aggregate amount not to exceed $3,000,000;
(d) pledge, encumber or create or grant any Encumbrance on any of the material assets of the Company and its Subsidiaries (other
than Permitted Encumbrances), other than as required by instruments of Indebtedness existing as of the date hereof or any Indebtedness incurred after the date hereof permitted in accordance with Section 7.1(b);
(e) make any non de minimis loans, advances or capital contributions to, or investments in, any other Person, other than loans or
investments solely between or among the Company and its Subsidiaries;
(f) (i) make any change in accounting methods or practices or policies used by the Company and its Subsidiaries in the preparation
of its financial statements, other than as required by GAAP (or any interpretation thereof), including pursuant to standards, guidelines and interpretations of the Financial Accounting Standards Board or any similar organization,
(ii) change any policies, practices or procedures with respect to working capital or cash management, accrual of revenue, collection or accrual of accounts receivable, payment or accrual of expenses, accounts payable or other
liabilities in a manner inconsistent with past practice, (iii) accelerate customer product delivery outside of normal purchase order practices, other than at the request of a customer in the ordinary course of business, or (iv)
provide discounts for accelerated product delivery (other than time value of money discounts in accordance with the Company’s ordinary course accounting policies and consistent with past practice);
(g) other than as required by applicable Law, (i) make (other than in connection with filing Tax Returns in the ordinary course of
business and consistent with past practice), change or revoke any material Tax election, (ii) adopt or change any accounting method with respect to Taxes, (iii) surrender any right to claim a refund of a material amount of Taxes,
(iv) settle or compromise any Tax proceeding with respect to a material amount of Taxes, (v) file any material Tax Return in a manner inconsistent with past practice, except to the extent otherwise required by a change in Law or a
“determination” within the meaning of Section 1313(a) of the Code (or any corresponding provision of state or local law), (vi) file any material amended Tax Return or claim any material tax refund or (vii) consent to any extension
or waiver of the limitations period applicable to any material Tax claim or assessment;
(h) acquire (whether by merging or consolidating with, or by purchasing assets or stock of, or by any other manner), any business
or Person or division thereof, other than purchases of assets in the ordinary course of business consistent with past practice;
(i) sell, assign, transfer, exclusively license, allow to expire or lapse or otherwise dispose of any of the properties, rights or
assets of the Company and its Subsidiaries, other than (A) properties, rights or assets having a value not in excess of $2,000,000 in the aggregate and (B) sales of assets in the ordinary course of business consistent with past
practice;
(j) commence (other than any collection action in the ordinary course of business consistent with past practice), waive, release,
assign, settle or compromise any Action involving the Company or any of its Subsidiaries other than settlements or compromises of litigation: (x)(i) where the amount paid for such settlement following the Closing does not exceed
$200,000 individually or $2,000,000 in the aggregate; (ii) do not impose any injunctive relief on the Company or any of its Subsidiaries and do not involve the admission of wrongdoing by the Company or any of its Subsidiaries or any
of their respective officers, directors or employees; and (iii) do not relate to claims, litigations, investigations, suits, actions or proceedings brought by Governmental Entities, or (y) are Tax proceedings (it being understood
that such Tax proceedings are subject to the restrictions contained in clause (g) above);
(k) make or commit to make any capital expenditure, capital addition or capital improvement (or series of related capital
expenditures, capital additions or capital improvements) in excess of $150,000 individually or $1,000,000 in the aggregate, other than capital expenditures pursuant to the capital budget previously made available to Purchaser or
(ii) deviate or fail to make expenditures at the times and in the amounts set forth in the capital budget previously made available to Purchaser, except in the reasonable, good faith discretion of the Company’s management in the
ordinary course of business consistent with past practice;
(l) (i) cancel, materially amend or modify in any manner adverse to the Company or terminate any Company Material Contract or
Lease or waive, release or assign any material rights, claims or benefits under any Company Material Contract or Lease, or (ii) enter into any Contract that if in effect on the date hereof would be a Company Material Contract or
Lease, in each case of (i) or (ii), other than in the ordinary course of business consistent with past practice and as would not be materially adverse to the Company and its Subsidiaries;
(m) (i) sell, assign, transfer or grant any license to any Company IP, except for non-exclusive licenses granted to customers in
the ordinary course of business, or (ii) allow any Company Registered IP to lapse or go abandoned, other than at the end of its ordinary, non-extendible term;
(n) reclassify, combine, split, subdivide or redeem, or purchase or otherwise acquire, directly or indirectly, any of the capital
stock of the Company or any of its Subsidiaries or make any other change with respect to their capital structure;
(o) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation or recapitalization of the Company or any
of its Subsidiaries;
(p) enter into any new line of business or abandon or discontinue any existing lines of business;
(q) terminate or permit the lapse of any insurance policies of the Company or any of its Subsidiaries;
(r) fail to maintain in effect all material Permits;
(s) (i) enter into, renew, or modify any Affiliate Arrangements, or (ii) transfer any assets or liabilities between the Company
and its Subsidiaries, on the one hand, and the Seller Group, on the other hand, other than as expressly contemplated by this Agreement;
(t) forgive, cancel or compromise any material debt or claim, or waive or release any right of material value to the Company or
its Subsidiaries, other than invoice adjustments or other customer arrangements that are not material and are entered into in the ordinary course of business consistent with past practice;
(u) declare, set aside or pay (i) any non-cash dividend or non-cash distribution to a Person other than a wholly owned Subsidiary of
the Company or (ii) any dividend or distribution with a payment date on or after the Closing Date, or enter into any agreement to repurchase any shares of common stock of the Company; or
(v) authorize any of, or commit or agree to take, whether in writing or otherwise, any of, the foregoing actions, or any act or
omission that would result in any of the foregoing.
Section 7.2 Conduct of Purchaser’s Business. Purchaser
agrees that, from the date of this Agreement until the earlier of the Closing and the termination of this Agreement in accordance with Article IX, it shall not and shall cause each of its Affiliates not to, directly or
indirectly, take any action (including any action with respect to a third party) reasonably expected to materially impair or delay Purchaser’s ability to consummate the transactions contemplated by this Agreement and the other
Transaction Agreements.
Section 7.3 Employment Matters.
(a) During the one-year period following the Closing (the “Continuation Period”),
Purchaser shall, and shall cause its Affiliates to, provide each Company Employee, for so long as he or she remains employed by the Purchaser or its Affiliates, with (i) a base salary or base rate of pay and a target annual cash
incentive compensation opportunity that are no less favorable than the base salary or base rate of pay and the target annual cash incentive compensation opportunity provided to such Company Employee immediately prior to the Closing
and (ii) employee benefits that are substantially comparable in the aggregate to the employee benefits provided to such Company Employee immediately prior to Closing (for the avoidance of doubt, excluding any equity or equity-based
compensation).
(b) Purchaser shall, and shall cause its Affiliates, as applicable, to, give Company Employees full credit for such Company
Employees’ service with the Company and its Affiliates for purposes of eligibility, vesting, and determination of the level of benefits (including for purposes of vacation, disability and severance), to the same extent recognized by
the Company immediately prior to the Closing, under any benefit plans made available to employees of Purchaser or any of its Affiliates in which a Company Employee participates; provided, however, that such service shall not be
recognized to the extent that such recognition would result in a duplication of benefits with respect to the same period of service, and Purchaser and its Affiliates shall not be required to provide credit for any purpose under any
defined benefit pension plan, postretirement welfare plan or any plan under which similarly situated employees of Purchaser and its Affiliates do not receive credit for prior service or that is grandfathered or frozen.
(c) Purchaser shall, and shall cause its Affiliates to, as applicable, use commercially reasonable efforts to (i) waive any
preexisting condition limitations otherwise applicable to Company Employees and their eligible dependents under any plan of Purchaser or any of its Affiliates that provides health benefits in which Company Employees may be eligible
to participate following the Closing, to the extent waived or satisfied with respect to such employees as of the Closing under the analogous Company Benefit Plan, (ii) honor any deductible, co-payment and out-of-pocket maximums
incurred by Company Employees and their eligible dependents under the health plans in which they participated immediately prior to the Closing during the portion of the calendar year prior to the Closing in satisfying any
deductibles, co-payments or out-of-pocket maximums under health plans of Purchaser or any of its Affiliates in which they are eligible to participate after the Closing in the same plan year in which such deductibles, co-payments or
out-of-pocket maximums were incurred and (iii) waive any waiting period limitation or evidence of insurability requirement that would otherwise be applicable to a Company Employee and his or her eligible dependents on or after the
Closing, in each case to the extent such Company Employee or eligible dependent had satisfied any similar limitation or requirement under an analogous Company Benefit Plan prior to the Closing.
(d) Unless otherwise requested by Purchaser in writing delivered to the Company not less than ten (10) business days before the
Closing Date, the board of directors of the Company (or the appropriate committee thereof) shall adopt resolutions and take such corporate action as is necessary or appropriate to terminate the Company 401(k) Profit Sharing Plan
(the “Company 401(k) Plan”), effective as of the day prior to the Closing Date. The form and substance of such resolutions and any other actions taken in connection with the foregoing
termination shall be subject to the reasonable review and approval (not to be unreasonably withheld) of Purchaser. Following the Closing, the assets of the Company 401(k) Plan shall be distributed to the participants, and Purchaser
shall permit the Company Employees who are actively employed as of such time to make rollover contributions of “eligible rollover distributions” within the meaning of Section 401(a)(31) of the Code (excluding loans), in the form of
cash, in an amount equal to the full account balance (excluding loans) distributed to such Company Employee from the Company 401(k) Plan to the Purchaser 401(k) Plan.
(e) Purchaser shall, and shall cause its Affiliates , as applicable, to continue any Company Benefit Plan that is an annual bonus
plan, with respect to the fiscal year in which the Closing occurs and will pay such bonuses in accordance with the terms of such Company Benefit Plan, if any, at such time as the Company has historically paid such bonuses.
(f) Nothing contained herein, express or implied, shall be construed to establish, amend, or modify any benefit plan, program,
agreement or arrangement. The parties hereto acknowledge and agree that the terms set forth in this Section 7.3 shall not create any right in any Company Employee, any other current or former employee or service provider or
any other Person to any continued employment with the Company, Purchaser or any of their respective Affiliates, successors, or assigns and shall be binding upon and shall inure solely to the benefit of each of the parties to this
Agreement, and nothing in this Section 7.3, express or implied, is intended to confer upon any other person any third-party rights or remedies of any nature whatsoever under or by reason of this Section 7.3.
Section 7.4 Publicity. Purchaser, on the one hand, and
the Company and Seller, on the other hand, shall communicate and cooperate with each other prior to any press release or public disclosure of the transactions contemplated by this Agreement. Purchaser, on the one hand, and the
Company and Seller, on the other hand, agree that no public release or announcement concerning the terms of the transactions contemplated hereby shall be issued by any party without the prior written consent of the other party,
except such release or announcement as may be required by Law or the rules and regulations of any stock exchange upon which the securities of one of the Company’s or Seller’s Affiliates or Purchaser or one of its Affiliates are
listed, in which case the party required to make the release or announcement shall allow the other party reasonable time to comment on such release or announcement in advance of such issuance and shall consider such comments in
good faith; provided, however, that (i) Purchaser, Seller, the Company and their respective Affiliates are permitted to (A) report and disclose the status and terms (including price terms) of this Agreement and the
transactions contemplated hereby to their (or in the case of Seller or the Company, its sponsors’) current or prospective investors, direct or indirect limited partners, lenders or otherwise in the ordinary course of their
business, including private equity/fund formation, fundraising, marketing, syndication, informational or reporting activities and (B) disclose the consummation of the transactions contemplated hereby on their websites and
otherwise in the ordinary course of their business and (ii) Purchaser, the Company, Seller and their respective Affiliates are permitted to report and disclose the status of this Agreement and the transactions contemplated hereby
pursuant to an internal communication or otherwise to their respective employees.
Section 7.5 Confidentiality.
(a) Purchaser acknowledges that the information provided to it and its Representatives in connection with this Agreement and the
transactions contemplated hereby prior to the Closing is subject to the terms of the Confidentiality Agreement between Seller and Purchaser, dated as of January 31, 2023 (as amended or modified from time to time, the “Confidentiality Agreement”). The terms of the Confidentiality Agreement are hereby incorporated by reference and shall continue in full force and effect until the Closing.
(b) From and after the Closing, Purchaser, the Company and their respective Subsidiaries shall treat and hold as confidential any
nonpublic information solely to the extent regarding Seller or its Affiliates in their businesses distinct from the business of the Company and its Subsidiaries provided by Seller to Purchaser or its Representatives (such
information, the “Seller Confidential Information”) and refrain from using any of the Seller Confidential Information except in connection with this Agreement, or as may otherwise be
required by Law, in connection with any dispute with third parties or any defense or prosecution of legal proceedings, financial reporting, Tax or accounting matters; provided that the
foregoing restriction shall not apply to information (i) that becomes available on a non-confidential basis to Purchaser or any of its Affiliates from and after the Closing from a third party source that is not known after
reasonable inquiry by Purchaser or any such Affiliates to be under any obligations or duties of confidentiality with respect to such information, (ii) that is in the public domain or enters into the public domain through no fault of
Purchaser or any of its Affiliates or Representatives or (iii) to the extent used by Purchaser or any of its Affiliates in order to comply with the terms of this Agreement and the other Transaction Agreements or any other Contract
between Purchaser or any of its Affiliates, on the one hand, and Seller or any of its Affiliates, on the other hand.
(c) From and after the Closing, Seller shall, and shall direct its Affiliates and their respective Representatives to treat and
hold as confidential any nonpublic information solely to the extent regarding the Company, any of the Company’s Subsidiaries, or their respective businesses (such information, the “Company
Confidential Information”) and refrain from using any of the Company Confidential Information except in connection with this Agreement, or as may otherwise be required by Law, in connection with any dispute with third
parties or any defense or prosecution of legal proceedings, financial reporting, Tax or accounting matters; provided that the foregoing restriction shall not apply to information (i) that
becomes available on a non-confidential basis to Seller or any member of the Seller Group from and after the Closing from a third party source that is not known after reasonable inquiry by Seller or any such other member of the
Seller Group to be under any obligations or duties of confidentiality with respect to such information, (ii) that is in the public domain or enters into the public domain through no fault of any member of the Seller Group or their
respective Representatives or (iii) to the extent used by Seller in order to comply with the terms of this Agreement and the other Transaction Agreements or any other Contract between the Seller Group, on the one hand, and Purchaser
or any of its Affiliates, on the other hand.
Section 7.6 Access to Information.
(a) Prior to the Closing Date and subject to applicable Laws and Section 7.5, Purchaser shall be entitled, through its
officers, employees and Representatives (including its legal advisors and accountants), to have such access to the personnel, properties (including the Owned Real Properties and the Leased Real Properties), premises, books and
records, Contracts, agreements, businesses, operations and other documents and data related to the Company and its Subsidiaries and such examination of such items and information, as it reasonably requests upon reasonable advance
written notice. Any such access and examination shall be conducted during regular business hours and under circumstances that do not unreasonably interfere with the normal operations of the business and shall be subject to
restrictions required by applicable Law. Seller shall, and shall cause the Company and its Subsidiaries and its and their respective officers, employees, consultants, agents, accountants, attorneys and other Representatives to
reasonably cooperate with Purchaser and Purchaser’s Representatives in connection with such access and examination, and Purchaser and its Representatives, as the case may be, shall use their commercially reasonable efforts to
minimize any disruption to the business. Any disclosure during such investigation by the Company or its Representatives shall not constitute any enlargement or additional representation or warranty of Seller or the Company beyond
those specifically set forth in Article V. Notwithstanding anything herein to the contrary, no such access or examination shall be permitted to the extent that it (i) would materially disrupt the operations Subsidiaries,
(ii) would require Seller, the Company or any of their respective Subsidiaries to disclose information that, in the reasonable judgment of outside counsel to Seller or the Company, would constitute a waiver of attorney-client
privilege or would conflict with any applicable Law or Privacy and Security Requirement, order, privacy policy or confidentiality obligation to which Seller or the Company and its Subsidiaries are subject; or (iii) involves any
intrusive investigation or other sampling or testing of any air, soil, gas, surface water, groundwater, building materials, or other environmental media; provided that, in each of the
foregoing clauses (i)-(ii), Seller shall provide Purchaser with a reasonable description of the general nature of the information not provided and shall, at Purchaser’s request, reasonably cooperate in good faith to design and
implement disclosure arrangements to enable Purchaser to evaluate such information.
(b) Notwithstanding anything to the contrary herein but without limiting Section 7.6, prior to the Closing, without the
written consent of the Company (not to be unreasonably withheld, conditioned or delayed), purchaser shall not contact any employees, customers or suppliers of the Company or any of its Subsidiaries, other than in the ordinary course
of business of Purchaser or any of its Affiliates with respect to matters not involving the Company or its Subsidiaries or the transactions contemplated by this Agreement.
Section 7.7 Regulatory Approvals.
(a) Each of the parties hereto shall cooperate with one another and use their reasonable best efforts to prepare all necessary
documentation (including furnishing all information required under any applicable Competition Laws) to effect promptly all necessary filings with any Governmental Entity and to obtain all consents, waivers and approvals of any
Governmental Entity necessary to consummate the transactions contemplated hereunder. Each party hereto shall provide to the other parties copies of all correspondence between it (or its advisors) and any Governmental Entity
relating to the transactions contemplated by this Agreement or any of the matters described in this Section 7.7. Each of the parties hereto shall promptly inform the other of any substantive oral communication with, and provide
copies of any written communications with, any Governmental Entity regarding any such filings or any such transaction, unless prohibited by reasonable request of any Governmental Entity. No party hereto shall independently
participate in any meeting, call, or video conference with any Governmental Entity in respect of any such filings, investigation or other inquiry without giving the other party prior notice of the meeting, call, or video conference
and, to the extent permitted by such Governmental Entity, the opportunity to attend or participate. The parties hereto will consult and cooperate with one another in connection with any analyses, appearances, presentations,
memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any party hereto relating to proceedings under any Competition Law. Notwithstanding anything to the contrary in this Agreement, and without
limiting or expanding the rights and obligations set forth in this Section 7.7, Purchaser shall have the right to direct all matters with any Governmental Entity consistent with its obligations hereunder; provided that Purchaser
reasonably consults with, and considers in good faith, the input of Seller. Any documents or other materials provided pursuant to this Section 7.7(a) may be redacted or withheld as necessary to address reasonable privilege or
confidentiality concerns, and to remove references concerning the valuation of the Company or other competitively sensitive material, and the Parties may, as each deems advisable, reasonably designate any material provided under
this Section 7.7 as “outside counsel only material.” Such “outside counsel only materials” and the information contained therein shall be given only to legal counsel of the recipient and will not be disclosed by such legal counsel
to employees, officers, or directors of the recipient without the advance written consent of the party providing such materials.
(b) The parties hereto shall use commercially reasonable best efforts and take any and all actions necessary to provide or cause
to be provided (including by their “Ultimate Parent Entities” as that term is defined in the HSR Act) as promptly as reasonably practicable to any Governmental Antitrust Entity information and documents requested by such
Governmental Antitrust Entity or necessary, proper or advisable to permit consummation of the transactions contemplated by this Agreement, including (i) (a) filing any notification and report form and related material required under
the HSR Act as promptly as reasonably practicable after the date hereof (but in any event no later than 10 Business Days after the date hereof), (b) submitting a CMA Briefing Paper to the CMA as soon as reasonably practicable after
the date hereof (but in any event no later than 15 Business Days after the date hereof as long as the Company and Seller provide any necessary information in a timely fashion, or failing such timely provision, as soon as reasonably
practicable thereafter) and (c) filing any other initial filings, notices, and reports under any Competition Law in the jurisdictions set forth on Section 7.7(b) of the Company Disclosure Schedule as promptly as reasonably
practicable, and thereafter to respond as promptly as reasonably practicable to any request for additional information or documentary material that may be made under the HSR Act or any similar Competition Law regarding
preacquisition notifications for the purpose of competition or other reviews and (ii) defending any Actions challenging this Agreement or the performance of the obligations hereby.
(c) Without limiting the foregoing, Purchaser shall, and shall cause its Affiliates to, take any such actions as may be reasonably
necessary to obtain any authorization, consent or approval of a Governmental Entity or to avoid or eliminate each and every impediment under any Competition Law so as to enable the consummation of the transactions contemplated
hereby to occur no later than the Extended Outside Date, including: (i) proposing, negotiating, committing to and effecting, by consent decree, hold separate order or otherwise, the sale, divestiture, licensing or disposition of,
or holding separate of, any businesses, product lines, investments, operations, companies, rights or assets of Purchaser and its Affiliates or the Company and its Subsidiaries, or any interest therein (including entering into
customary ancillary agreements relating to any such sale, divestiture, licensing or disposition of such businesses, product lines, rights or assets), or agree to any other structural or conduct remedy or (ii) otherwise taking or
committing to take actions that after the Closing Date would limit Purchaser’s or its Affiliates’ freedom of action with respect to, or its ability to retain or control, one or more of the businesses, product lines, investments,
operations, companies, rights or assets of Purchaser and its Affiliates or the Company and its Subsidiaries, or any interest therein (the actions set forth in clauses (i) and (ii) of this Section 7.7(c) referred to collectively as,
“Regulatory Actions”); provided, however, nothing in this Section 7.7 or otherwise in this Agreement shall require Purchaser or its Subsidiaries or Affiliates to (and Seller, the
Company and their respective Subsidiaries and Affiliates shall not, without Purchaser’s prior written consent) offer, propose, negotiate, commit or agree to, take or effect any Regulatory Action (A) that would be, or would
reasonably be expected to be, in the aggregate, material to the Purchaser and its Subsidiaries (including the Company and its Subsidiaries), taken as a whole after giving effect to the Share Purchase, but for purposes of this
Section 7.7(c), “material” shall mean material measured on a scale relative only to the size of the Company and its Subsidiaries, taken as a whole (and not, for avoidance of doubt, the combined business of Purchaser, the Company and
their respective Subsidiaries), prior to the transactions contemplated by this Agreement or (B) that involves or relates to any businesses, product lines, investments, operations, companies, rights or assets of Purchaser or its
Affiliates, but for the purposes of subpart (B), only to the extent such Regulatory Actions relate to a structural remedy in the form of a sale, divestiture or disposition; provided, further, that the imposition of UK FDI
Requirements shall be excluded from any assessment of materiality for the purposes of this Section 7.7(c), unless UK FDI Additional Requirements are also imposed, in which case the foregoing exclusion from the materiality assessment
shall not apply; provided, further, that nothing in this Section 7.7 or otherwise in this Agreement shall require Purchaser or its Subsidiaries or Affiliates to commit to or effect any action or agreement that is not conditioned
upon the consummation of the transactions contemplated by this Agreement, and in no event shall Seller or the Company propose, negotiate, effect or agree to take any such actions (I) without the prior written consent of Purchaser
and (II) unless the taking of such action is conditioned upon the consummation of the transactions contemplated by this Agreement.
(d) From the date of this Agreement until Closing, neither Purchaser nor any of its Affiliates shall acquire or agree to acquire, by
merging with or into or consolidating with, or by purchasing a substantial portion of the assets of or equity in, or by any other manner, any assets or Person, or take any other action (excluding those actions disclosed in Section
7.7(d) of Purchaser Disclosure Schedule), if the execution and delivery of a definitive agreement relating to, or the consummation of, such acquisition, or the taking of any other action, would: (i) impose a material delay in
obtaining, or increase the risk of not obtaining, consents or approvals of a Governmental Entity necessary to consummate the transactions contemplated hereby or the expiration or termination of any applicable waiting period, (ii)
increase the risk of a Governmental Entity seeking or entering a Governmental Order prohibiting the consummation of the transactions contemplated hereby or (iii) increase the risk of not being able to remove any such Governmental
Order on appeal or otherwise.
Section 7.8 Director and Officer Liability; Indemnification.
(a) Without limiting any additional rights that any Person may have under any Company Benefit Plan, from the Closing through the
sixth anniversary of the Closing Date, each of Purchaser and the Company shall indemnify and hold harmless each present (as of immediately prior to the Closing) and former officer, director or manager, of the Company and its
Subsidiaries (the “Indemnified Individuals”) from and against all claims, losses, liabilities, damages, judgments, inquiries, fines and reasonable fees, costs and expenses (including
attorneys’ fees and disbursements in advance of the final disposition of any actual or threatened claim to the fullest extent permitted by Law and provided that such Indemnified Individual provides an undertaking to repay such
advances to the extent if it is ultimately determined that such Indemnified Individual is not entitled to indemnification), incurred in connection with any actual or threatened claim, action, suit, proceeding or investigation,
whether civil, criminal or administrative, with respect to matters existing or occurring at or prior to the Closing (including this Agreement and the other transactions and actions contemplated hereby), whether asserted or claimed
prior to, at or after the Closing, to the fullest extent permitted by applicable Law. In the event of any such claim, action, suit, proceeding or investigation, (x) each Indemnified Individual will be entitled to advancement of
expenses incurred in the defense of any claim, action, suit, proceeding or investigation from Purchaser or the Company promptly following receipt by Purchaser from the Indemnified Individual of a request therefor, (y) neither
Purchaser nor the Company shall settle, compromise or consent to the entry of any judgment in any proceeding or threatened action, suit, proceeding, investigation or claim (in which indemnification could be sought by such
Indemnified Individual hereunder) unless such settlement, compromise or consent includes an unconditional release of such Indemnified Individual from all liability arising out of such action, suit, proceeding, investigation or claim
or such Indemnified Individual otherwise consents and (z) the Company shall cooperate with such Indemnified Individual in the defense of any such matter. Notwithstanding anything to the contrary contained herein, Purchaser shall not
be required to indemnify any Person for such Person’s criminal conduct or fraud.
(b) Purchaser shall, or shall cause the Company to procure, bind and pay in full, at Purchaser’s expense, all premiums for a tail
insurance coverage policy (the “Tail Insurance Coverage”) and maintain such insurance for a claims reporting or discovery period of at least six (6) years from the Closing Date, from an
insurance carrier with the same or better credit ratings as the Company’s current insurance carrier as of the date hereof with respect to its currently existing directors’ and officers’ liability insurance policy set forth in
Section 7.8(b) of the Company Disclosure Schedule, for the benefit of the Indemnified Individuals who, as of the Closing Date, are covered by such currently effective directors’ and officers’ liability insurance policy (such
Persons, together with any other prior directors or officers of the Company and its Subsidiaries, the “D&O Indemnified Parties”), which shall provide the D&O Indemnified Parties
with terms, conditions, retentions and levels of coverage in the aggregate not materially less favorable to the D&O Indemnified Parties than, the directors’ and officers’ liability insurance coverage presently maintained by the
Company; provided that in no event shall Purchaser or the Company be required to expend for such tail policy pursuant to this sentence a premium amount in excess of 250% of the amount per
annum the Company paid for the directors’ and officers’ liability insurance coverage presently maintained by the Company in its last full fiscal year (the “Premium Cap”); provided, further, that if the amount necessary to procure such insurance coverage exceeds the Premium Cap, Purchaser shall, or shall cause the Company
to, purchase the most advantageous policy available for an amount not to exceed the Premium Cap. Purchaser shall cause the Company following the Closing to maintain any such Tail Insurance Coverage in full force and effect and
continue to honor the obligations thereunder until the sixth anniversary of the Closing.
(c) For a period of not less than six (6) years after the Closing Date, Purchaser, to the fullest extent permitted under
applicable Law, shall cause to be maintained in effect the provisions of the certificate of incorporation and bylaws (or equivalent governing documents) of each of the Company and its Subsidiaries no less favorable with respect to
indemnification, advancement of expenses and exculpation of former or present directors, managers and officers than are set forth in the organizational documents of the Company (or equivalent governing documents) as of the date
hereof, which provisions shall not be amended, repealed or otherwise modified during such six (6) year period in any manner that would adversely affect the rights thereunder of any individual who immediately before the Closing was
an Indemnified Individual.
(d) Notwithstanding anything herein to the contrary, if any claim, action, suit, proceeding or investigation (whether arising
before, at or after the Closing) is made against any Indemnified Individual on or prior to the sixth anniversary of the Closing, the provisions of this Section 7.8 shall continue in effect until the final disposition of such
claim, action, suit, proceeding or investigation.
(e) This covenant is intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Individuals and their
respective heirs and legal representatives. The indemnification provided for herein shall not be deemed exclusive of any other rights to which an Indemnified Individual is entitled, whether pursuant to Law, Contract or otherwise.
(f) In the event that the Company or Purchaser or any of their respective successors or assigns (i) consolidates with or merges
into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or a majority of its properties and assets to any Person, then, and in each
such case, proper provision shall be made so that the successors and assigns of the Company or Purchaser, as the case may be, shall succeed to the obligations set forth in this Section 7.8.
Section 7.9 Further Assurances. From time to time
after the Closing, at the request of another party, without further consideration and at the sole expense of the party so requesting, each of the parties shall execute and deliver to such requesting party, or shall cause to be
executed and delivered to such requesting party, such additional instruments or documents, and shall take or cause to be taken such other action, as such requesting party may reasonably request in order to carry out the provisions
hereof and give effect to the transactions contemplated by this Agreement. Subject to Section 7.7, each of the parties will use reasonable best efforts to defend any Actions challenging this Agreement, the Closing or the
performance of the obligations hereby.
Section 7.10 Termination of Affiliate Arrangements.
Except as set forth on Section 7.10 of the Company Disclosure Schedule, on or prior to the Closing, Seller shall, and shall cause the Seller Group to cause all Affiliate Arrangements to be settled and/or terminated and canceled
and of no force and effect with no further liability to or obligations of the Company or its Subsidiaries from and after the Closing. Seller and Purchaser shall agree on the documentation by which the Seller Group and the Company
and its Subsidiaries shall effect the transactions pursuant to this Section 7.9.
Section 7.11 No Solicitation of Other Bids; Return and
Destruction of Transaction Information. Neither Seller nor any member of the Seller Group shall authorize nor shall they permit any of their respective Affiliates, and shall direct their respective Representatives not to,
directly or indirectly: (i) encourage, solicit, initiate, facilitate or continue inquiries regarding an Acquisition Proposal, (ii) enter into discussions or negotiations with, or provide any information to, any Person concerning a
possible Acquisition Proposal, or (iii) enter into any agreements or other instruments (whether or not binding) regarding an Acquisition Proposal. Seller and its Affiliates shall immediately terminate access by any Person (other
than Purchaser and its Representatives) to any non-public or confidential information relating to the Company and its Subsidiaries that has been provided to prospective purchasers and their Affiliates and Representatives in
connection with an acquisition of the Company or its Subsidiaries or the business thereof (including through the Electronic Data Room or any online or other data sites) (any such information, “Transaction
Information”), and within five (5) Business Days of the date hereof, request in writing that all prospective purchasers of the Company or any of its Subsidiaries of the business thereof to whom Transaction
Information concerning the Company or its Subsidiaries has been distributed on or prior to the date hereof in connection with the process relating to the sale of the Company and its Subsidiaries or the business thereof (other than
Purchaser and its Representatives acting on its behalf) return such information to Seller (or destroy such information) and cause their Affiliates and representatives to do the same in accordance with, the terms of the
confidentiality agreements between any member of the Seller Group or the Company and its Subsidiaries, on the one hand, and such prospective purchasers, on the other hand. For purposes hereof, “Acquisition
Proposal” shall mean any inquiry, proposal or offer from any Person (other than Purchaser or any of its Affiliates) concerning (a) a merger, consolidation or other business combination transaction involving the
Company or any of its Subsidiaries, (b) the issuance or acquisition of membership interests in the Company or any of its Subsidiaries (other than to Seller or the exercise of call rights or other rights held by the Company to
repurchase equity interests held by former employees in connection with such employees separation from the Company or its Subsidiaries in the ordinary course of business and consistent with past practice), or (c) the sale, lease,
exchange or other disposition of any significant portion of the Company’s or its Subsidiaries’ properties or assets.
Section 7.12 Preservation of Records. Purchaser agrees
that, with respect to records of the Company and its Subsidiaries existing as of the Closing Date, it shall, and shall cause the Company to, preserve and keep the records held by them relating to the respective businesses of the
Company and its Subsidiaries for a period of seven years following the Closing Date (or longer if required by applicable Law) and shall make such records (or copies) and reasonably appropriate personnel available, at reasonable
times and upon reasonable advance notice, to Seller for inspection and copying (at Seller’s sole expense) as may be reasonably required by Seller in connection with any insurance claims by, legal proceedings or Tax audits against,
governmental investigations of, or compliance with applicable Laws by, Seller or any of its Affiliates. Notwithstanding anything herein to the contrary, no such access or examination shall be permitted to the extent that it (i)
interferes unreasonably with the normal business operations of the Purchaser, the Company or their respective Affiliates, (ii) would require Purchaser, the Company or any of their respective Subsidiaries to disclose information
that, in the reasonable judgment of outside counsel to Purchaser, would constitute a waiver of attorney-client privilege or would conflict with any applicable Law or (iii) involves any intrusive investigation or other sampling or
testing of any air, soil, gas, surface water, groundwater, building materials, or other environmental media of any real property owned or leased by Purchaser, the Company or any of their respective Subsidiaries; provided that Purchaser shall, at Seller’s request, reasonably cooperate in good faith to design and implement disclosure arrangements to enable
Seller to evaluate such information.
Section 7.13 Escrow Agreement. At the Closing, each of
Purchaser and Seller shall duly execute and deliver to the other, and shall use their reasonable efforts to cause the Escrow Agent to duly execute and deliver to Purchaser and Seller, the Escrow Agreement.
Section 7.14 280G Vote. At least five days prior to the
Closing, the Company shall (i) seek from each Person who has a right to any payments and/or benefits as a result of or in connection with the transactions contemplated hereby that would constitute “parachute payments” (within the
meaning of Section 280G of the Code and the regulations promulgated thereunder) a waiver of such Person’s rights to some or all of such payments and/or benefits (the “Waived 280G Benefits”)
applicable to such Person so that all remaining payments and/or benefits applicable to such Person shall not be deemed to be “excess parachute payments” that would not be deductible under Section 280G of the Code and (ii) seek the
approval of its stockholders in a manner that complies with Section 280G(b)(5)(B) of the Code and Treasury Regulation Section 1.280G-1, which shall include adequate written disclosure to all stockholders prior to such vote, of any
such Waived 280G Benefits (the “Shareholder Approval”). The Company shall have delivered to Purchaser complete copies of all disclosure and other related documents that will be
provided to the Persons entitled to vote in connection with the Shareholder Approval at least five (5) days prior to distribution to the Persons entitled to vote and shall consider in good faith all reasonable comments of
Purchaser thereon. If Purchaser desires to have included in the Waived 280G Benefits any new compensation arrangements entered into by or at the direction of Purchaser that could be deemed parachute payments with respect to any
disqualified individuals of the Company and its Subsidiaries (“New Arrangements”), Purchaser shall deliver to the Company all relevant information with respect to such New
Arrangements at least ten Business Days prior to the Closing Date. If Purchaser does not provide the Company with all relevant information with respect to any New Arrangements at least ten Business Days prior to the Closing Date,
the Company shall not be required to include such New Arrangements in the determination of the Waived 280G Benefits. In no event shall the Company or Seller be deemed to be in breach of this Section 7.14 as a result of
(a) any disqualified individual refusing to execute a waiver, (b) Purchaser’s failure to timely deliver all relevant information regarding any New Arrangements or (c) the Shareholder Approval not being obtained.
Section 7.15 Certain Consents. Purchaser acknowledges and
agrees, on behalf of itself, that certain consents to the transactions contemplated hereby may be required from parties to Contracts or other agreements to which the Company or one of its Subsidiaries is a party and that such
consents have not been obtained as of the date hereof and may not be obtained prior to the Closing. If requested by Purchaser in writing, each of Seller and Purchaser shall, and shall cause their respective Affiliates to,
reasonably cooperate, and Seller shall use their commercially reasonable efforts to obtain such consents and approvals (including any third party consents) that may be required in connection with the transactions contemplated by
this Agreement, including under any Contracts and Leases. Notwithstanding anything to the contrary in this Agreement, nothing herein shall obligate or be construed to obligate Seller or any of its Affiliates (including the
Company and its Subsidiaries) to (i) make, or to cause to be made, any payment to any third Person, (ii) commence any action, suit or other legal proceeding or (iii) offer to grant any material accommodation (financial or
otherwise) to any third Person in each case in order to obtain the consent or approval of such third Person under any Contract or Lease.
Section 7.16 Resignations. On the Closing Date, Seller
shall deliver the duly executed resignations and releases in form and substance reasonably satisfactory to Purchaser (effective as of the Closing) of all directors, managers and officers of the Company and its Subsidiaries as may
be requested by Purchaser not less than ten (10) Business Days prior to the Closing Date.
Section 7.17 Tax Matters.
(a) Purchaser shall be responsible for and shall pay all Transfer Taxes imposed with respect to the transfer of the Company Shares
(including any Transfer Taxes with respect to assets of the Company or any of its Subsidiaries deemed transferred by reason of the Company Shares transfer) pursuant to this Agreement. The party required by Law to do so shall file
all necessary Tax Returns and other documentation with respect to all such Transfer Taxes and, if required by applicable Law, the other parties shall, and shall cause their respective Affiliates to, join in the execution of any such
Tax Returns and other documentation. The parties shall cooperate to minimize any Transfer Taxes.
(b) Each party shall, and shall cause its Affiliates to, provide to the other parties such cooperation, assistance, documentation
and information as either of them may reasonably request in connection with any Tax matters relating to the Company and its Subsidiaries (including by the provision of reasonably relevant records and information). Each party agrees
(i) to retain all books and records of the Company in its possession with respect to Tax matters pertinent to the Company and its Subsidiaries relating to any taxable period beginning before the Closing Date until the expiration of
the applicable statute of limitations (and any extensions thereof) of the respective taxable periods and (ii) to give the other party reasonable written notice before transferring, destroying or discarding any books and records and,
if the other party so requests, allow such other party to take possession of the books and records.
(c) From the Closing until the determination of the Final Purchase Price, Purchaser shall not, without the prior written consent
of Seller (which consent shall not be unreasonably withheld, conditioned or delayed), (i) make or change any Tax election, (ii) amend, refile or otherwise modify any Tax Return, or (iii) take any other action, in each case, with
respect to a Pre-Closing Tax Period of the Company or its Subsidiaries if such election or action would reasonably be expected to increase the Pre-Closing Tax Amount.
(d) Notwithstanding anything in this Agreement to the contrary, on or before the Closing Date, the rights and obligations of the
Company and its Subsidiaries pursuant to all Tax sharing agreements or arrangements (other than this Agreement or any Commercial Tax Agreements), if any, to which any of the Company or its Subsidiaries, on the one hand, and Seller
or any of its respective Affiliates, on the other hand, are parties, shall terminate, and neither Seller nor any of its respective Affiliates, on the one hand, nor any of the Company and its Subsidiaries, on the other hand, shall
have any rights or obligations to each other after the Closing in respect of such agreements or arrangements.
(e) Purchaser and its Affiliates (including the Company) shall not make any election under Section 338 or Section 336 of the Code
(or any similar provisions under state, local, or non-U.S. Law) with respect to the purchase of the Company Shares pursuant to this Agreement.
(f) For purposes of this Agreement, in the case of any Straddle Period, (i) the amount of any Taxes not described in clause (ii)
(including Taxes based on or measured by income, receipts, payments, or payroll) of the Company and its Subsidiaries for the portion of the Straddle Period ending on the Closing Date shall be determined based on an interim closing
of the books as of the close of business on the Closing Date and (ii) the amount of all property Taxes or other Taxes imposed on a periodic basis of the Company and its Subsidiaries for the portion of the Straddle Period ending on
the Closing Date shall be deemed to be the amount of such Tax for the entire taxable period multiplied by a fraction the numerator of which is the number of days in the taxable period ending on the Closing Date and the denominator
of which is the total number of days in such Straddle Period.
(g) Within 30 days after the Closing Date, Seller shall deliver to Purchaser a duly executed IRS Form W-8IMY of Seller, together
with duly executed applicable IRS Forms W-8 or W-9 from Persons treated as a partner of Seller for U.S. federal income tax purposes immediately prior to the Closing that own, in the aggregate, at least 90% of Seller as of
immediately prior to the Closing.
Section 7.18 Connecticut Transfer Act. The parties agree and acknowledge that the Connecticut Transfer Act, Connecticut
General Statutes § 22a-134 et seq. and the rules and regulations promulgated thereunder, does not apply to the transactions contemplated by this Agreement. Notwithstanding the foregoing, should the Closing occur and the State of
Connecticut provides written notice thereafter that the Transfer Act applied to the transactions contemplated herein, the parties shall cooperate to take all actions required to achieve compliance with the Transfer Act (including
causing Seller to execute necessary documents as “transferee” following reasonable review and consultation of such documents) with respect to the Leased Real Property located at 39 Bradley Park Road, East Granby, Connecticut and the
transactions contemplated by this Agreement, including filing such forms, paying all required fees, completing all required investigation or remediation, issuing a final “verification,” as that term is defined in the Transfer Act,
that is not subject to audit by the State of Connecticut, and taking such other actions to achieve compliance with the Transfer Act. This Section 7.18 shall survive the Closing.
Section 7.19 Notice of Material Developments. From the date of this Agreement until the earlier of the Closing and the
termination of this Agreement in accordance with its terms, each party shall give prompt notice to the other Parties of (a) any known material breach of any of its representations or warranties contained in this Agreement, in each
case as if such representations or warranties were made immediately after the event or circumstance giving rise to the notification obligation under this Section 7.19 arose (except to the extent any such representation and
warranty expressly relates to an earlier date (in which case notice shall only be given if such material breach occurred as of or before such earlier date)), including any events or circumstances that may give rise to any such
breach, (b) any known material breach of any covenant hereunder by such party and (c) any other known material development affecting the ability of such party to consummate the transactions contemplated by this Agreement. In
addition, the Company shall, and the Company shall cause each of its Subsidiaries to, provide to Purchaser copies of all material correspondence between the Company and any of its Subsidiaries on the one hand, and a Governmental
Entity, including correspondence relating to any pending or newly commenced examination, inquiry or investigation by such Governmental Entity, concurrently with the receipt or delivery thereof by the Company or such Subsidiary.
Purchaser’s receipt of information or correspondence pursuant to this Section 7.19 shall not operate as a waiver or otherwise affect any representation, warranty or covenant given or made by Seller or the Company in this
Agreement and shall not be deemed to amend or supplement the Company Disclosure Schedule.
Section 7.20 Financing.
(a) Purchaser shall and shall cause its Subsidiaries to, use their respective reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, advisable or proper to obtain the Financing contemplated by the
Commitment Letter on or prior to the Closing Date on the terms and conditions (including, to the extent applicable, the “flex” provisions) described in the Commitment Letter (or on other terms and conditions, that (i) are not less
favorable to Purchaser taken as a whole than the terms and conditions (including any “flex” provisions) set forth in the Commitment Letter taken as a whole, (ii) do not include conditions to funding the Financing that are not
contained in the Commitment Letter, (iii) would not reasonably be expected to prevent or materially delay the consummation of the transactions contemplated by this Agreement and (iv) would not reduce the amount of the Financing
below the amount required to satisfy the Financing Amount (“Acceptable Financing Terms”)), including by using reasonable best efforts to:
(i) maintain in effect and enforcing its rights under the Commitment Letter and any Definitive Financing
Agreements,
(ii) satisfy on a timely basis all conditions to the funding of the Financing set forth in the Commitment
Letter and the Definitive Financing Agreements that are within its control (or if deemed advisable by Purchaser, seeking the waiver of conditions applicable to Purchaser contained in the Commitment Letter and such Definitive
Financing Agreements), and
(iii) negotiate and enter into definitive agreements (which, with respect to the bridge facility documentation,
shall not be required until necessary to ensure that the funding thereof (if required to fund the Financing Amount) will occur on the Closing Date) with respect to the Financing on Acceptable Financing Terms (the “Definitive Financing Agreements”).
(b) Purchaser shall (i) upon written request of Seller from time to time, keep Seller informed in reasonable detail and on a
reasonably current basis of the status of its efforts to arrange the Financing and (ii) give Seller prompt notice of (x) any material breach or default, by any party to the Commitment Letter, of which Purchaser becomes aware or (y)
the receipt of any written notice from any Financing Entity with respect to any breach of any of Purchaser’s obligations under the Commitment Letter.
(c) Prior to the Closing, none of Purchaser or its Subsidiaries shall consent, agree to or permit any termination, amendment,
replacement, supplement or other modification of, or waive any provision under, the Commitment Letter or Definitive Financing Agreements without Seller’s prior written consent, such consent not to be unreasonably withheld or
delayed; provided that Purchaser may, without Seller’s prior written consent, (i) enter into any amendment, replacement, supplement or other modification to or waiver of any provision of the Commitment Letter or Definitive
Financing Agreements that does not (A) reduce the aggregate amount of the Financing to an amount below the amount required to satisfy the Financing Amount, (B) adversely affect the ability of Purchaser to enforce its rights against
other parties to the Commitment Letter or the Definitive Financing Agreements as so amended, replaced, supplemented, or otherwise modified, relative to the ability of Purchaser to enforce its rights against the other parties to the
Commitment Letter as in effect on the date hereof or (C) impose new or additional conditions to the availability of the Financing, or otherwise would reasonably be expected to prevent or materially delay the consummation of the
transactions contemplated by this Agreement (the effects described in clauses (A) through (C), collectively, the “Prohibited Modifications”), (ii) amend, replace, supplement or
otherwise modify the Commitment Letter solely to add lenders, lead arrangers, book runners, syndication agents or similar entities that had not executed the Commitment Letter as of the date of this Agreement and (iii) enter into
other debt financing arrangements (whether or not contemplated by the Commitment Letter and including any amendment to Purchaser’s existing revolving credit facility which corresponding commitments would be undrawn and available at
Closing in at least the amount required to satisfy the Financing Amount) and thereby reduce all or a portion of the aggregate principal amount of the Financing by the amount of, or the amount of any commitment for, any such debt
financing so long as such debt financing arrangements do not constitute or effect a Prohibited Modification (any such debt financing, “Permanent Financing”). Upon any such amendment,
replacement, supplement or modification, the terms “Commitment Letter” and “Definitive Financing Agreement” shall mean the Commitment Letter or the Definitive Financing Agreement, as applicable, as so amended, replaced, supplemented
or modified. Purchaser shall promptly deliver to Seller copies of any such amendment, replacement, supplement, waiver or other modification of the Commitment Letter.
(d) If for any reason all or any portion of the Financing becomes unavailable, then Purchaser shall, and shall cause its
Subsidiaries to, (i) use their respective reasonable best efforts to arrange and obtain, as promptly as practicable, from the same and/or alternative financing sources, alternative financing, in an amount required to satisfy the
Financing Amount, on Acceptable Financing Terms and (ii) promptly notify Seller of such unavailability and the reason therefor. In the event that (i) any portion of the Financing is unavailable, regardless of the reason therefor,
(ii) (A) all conditions set forth in Section 8.1 and Section 8.2 (other than those conditions that by their nature are to be satisfied at the Closing or the failure of which to be satisfied is caused by a breach by
Purchaser of its representations, warranties, covenants or agreements contained in this Agreement) shall have been satisfied (or are capable of being satisfied at the Closing) and (B) the Closing should occur or should have occurred
pursuant to Section 2.2 and (iii) the bridge facilities contemplated by the Commitment Letter (or alternative bridge facilities obtained in accordance with this Section 7.20) are available on the terms and conditions
described in the Commitment Letter (or replacements thereof), then Purchaser shall cause the proceeds of such bridge financing to be used in lieu of such affected portion of the Financing.
(e) In the event any alternative financing is obtained in accordance with this Section 7.20 (“Alternative Financing”), references in this Agreement to the Financing shall also be deemed to include such Alternative Financing (and any Financing remaining in effect at the time in question), and if one or
more commitment letters or Definitive Financing Agreements are entered into or proposed to be entered into in connection with such Alternative Financing, references in this Agreement to the Commitment Letter and the Definitive
Financing Agreements shall also be deemed to include such commitment letters and definitive financing agreements relating to such Alternative Financing, and all obligations of Purchaser pursuant to this Section 7.20 shall be
applicable thereto to the same extent as Purchaser’s obligations with respect to the Financing. The foregoing notwithstanding, compliance by Purchaser with this Section 7.20 shall not relieve Purchaser of its obligations to
consummate the transactions contemplated by this Agreement whether or not the Financing is available and Purchaser acknowledges that this Agreement and the transactions contemplated hereby are not contingent on Purchaser’s ability
to obtain the Financing (or any Alternative Financing) or any specific term with respect to such financing and reaffirms its obligation to consummate the transactions contemplated by this Agreement irrespective and independently of
the availability of the Financing or any permitted Alternative Financing.
Section 7.21 Financing Cooperation.
(a) Prior to the Closing, Seller shall, and shall cause its Subsidiaries to, use reasonably best efforts to, and each of Seller and its Subsidiaries shall use their reasonable best efforts to cause their respective Representatives to use reasonable best efforts to, provide to
Purchaser, in each case at Purchaser’s sole cost and expense, such customary cooperation as is reasonably requested by Purchaser in connection with the Financing (which term, for purposes of this Section 7.21, shall
include any other financing incurred in lieu thereof or otherwise in connection with the transactions contemplated by this Agreement). Such cooperation shall include but not be limited to
using reasonable best efforts in connection with the following:
(i) participating (and causing senior management and appropriate Representatives of the Company to participate)
in a reasonable number of meetings, calls, presentations, road shows, lender presentations, due diligence sessions (including accounting due diligence sessions), drafting sessions and sessions with rating agencies at reasonable
times and places and otherwise cooperating with Purchaser’s marketing efforts for any of the Financing and assisting Purchaser in obtaining ratings in connection with the Financing, including direct contact between appropriate
members of senior management of the Company, on the one hand, and the actual and potential financing sources, on the other hand;
(ii) assisting Purchaser with its timely preparation and negotiation of customary rating agency presentations and
materials, credit agreements, indentures, bank information memoranda, syndication documents and materials, lender presentations, offering documents, prospectuses, memoranda, investor presentations, purchase agreements, guarantees,
pledge and security documents, closing certificates, and similar documents in connection with the Financing;
(iii) assisting Purchaser with Purchaser’s preparation of pro forma financial information and pro forma financial
statements, and with Purchaser’s preparation of projections, in each case, solely with respect to information of the Company and its Subsidiaries, it being agreed that Purchaser shall provide (A) the proposed aggregate amount of
debt financing, together with assumed interest rates and fees and expenses relating to the incurrence of such debt financing and (B) any post-Closing or pro forma cost savings, synergies, capitalization, ownership or other pro forma
adjustments in each case arising from the transactions contemplated by this Agreement ((A) and (B), the “Purchaser Pro Forma Information”);
(iv) (A) executing and delivering any pledge and security documents, supplemental indentures, currency or
interest hedging arrangements, other definitive financing documents, or other certificates or documents as may be reasonably requested by Purchaser; (B) giving Purchaser reasonable access to the offices, properties, books, records
and other information of the Company and its Subsidiaries to facilitate the granting of security in any collateral; (C) assisting Purchaser in obtaining environmental assessments, surveys and title insurance; (D) assisting Purchaser
with the provision of the insurance certificates and endorsements; and (E) otherwise reasonably facilitating the pledging of collateral and the granting of security interests in respect of the Financing;
(v) furnishing Purchaser with the Required Financing Information and such other pertinent and customary
information reasonably requested in connection with the Financing;
(vi) at the request of Purchaser,
(A) timely delivering notices of prepayment in respect of the Senior Secured Credit Agreements or any other
applicable Indebtedness of the Company and its Subsidiaries contemplated by this Agreement, or otherwise required by its terms, to be paid at or prior to Closing (which shall be delivered at Purchaser’s request in advance of the
Closing Date so long as they are contingent upon the occurrence of the Closing), and taking any actions at or prior to the Closing Date reasonably requested by Purchaser to facilitate the prepayment of all amounts outstanding under
any of the Senior Secured Credit Agreements or such other applicable Indebtedness on or following the Closing Date;
(B) arranging for delivery of Payoff Documentation three (3) Business Days prior to Closing,
(C) taking all other reasonable actions reasonably requested by Purchaser to facilitate the payoff, discharge
and termination in full at the Closing of all amounts outstanding under the Senior Secured Credit Agreements or any other Indebtedness of the Company and its Subsidiaries contemplated by this Agreement, or otherwise required by its
terms, to be paid at or prior to Closing and the release of all related Encumbrances on the assets of the Company or its Subsidiaries, and
(D) assisting Purchaser in connection with the unwinding or novation at the Closing of any swaps or hedges to
which the Company or any of its Subsidiaries is a party and designated by Purchaser (notice of which may be delivered at Purchaser’s request in advance of the Closing Date so long as permitted by the underlying swap or hedge
documentation to be contingent upon the occurrence of the Closing and no actions shall be required which would obligate the Company or its Subsidiaries to complete such unwind or novation prior to the occurrence of the Closing Date)
(such notices, together with the notices described in clause (1), “Financing Termination Notices”);
(vii) assisting with the migration, cash collateralization, backstopping, or other treatment determined by Purchaser
of any letters of credit, bank guarantees, or similar instruments or arrangements of the Company and its Subsidiaries in connection with the Closing;
(viii) executing and delivering customary authorization letters to the Financing providers authorizing the
distribution of information regarding the Company to prospective lenders or investors in connection with the Financing and containing a customary representation that the public side versions of such documents do not include material
non-public information about the Company or its Subsidiaries or their securities, and a customary representation as to the accuracy of the written information contained in the disclosure and marketing materials regarding the Company
and its Subsidiaries and to the extent provided by the Company or any of its Subsidiaries, subject to customary exceptions and qualifications (“Financing Authorization Letters”);
(ix) causing its independent auditors to (A) provide drafts and executed versions of customary auditor comfort
letters (including “negative assurance” comfort and change period comfort) with respect to historical financial information relating to the Company and its Subsidiaries as reasonably requested by Purchaser or as necessary or
customary for financings similar to the Financing (including any offering or private placement of debt securities pursuant to Rule 144A) and (B) attend a reasonable number of accounting due diligence sessions and drafting sessions
at reasonable times and places;
(x) (A) taking actions requested by Purchaser to enable Purchaser to benefit from the Company’s existing lending
relationships in connection with the marketing and syndication of the Financing, (B) cooperating with Financing providers in performing due diligence, and (C) assisting in obtaining credit ratings;
(xi) taking all reasonable and customary actions necessary and requested by Purchaser to (A) permit the Financing
Parties to evaluate the Company and its Subsidiaries’ current assets, cash management and accounting systems, policies and procedures relating thereto for the purposes of establishing collateral arrangements, or in connection with
collateral audits or due diligence examinations, and (B) permit Purchaser to establish bank and other accounts and blocked account agreements and lock-box arrangements in connection with the Financing; and
(xii) to the extent requested at least eight (8) Business Days prior to the Closing Date, promptly furnishing
Purchaser at least four (4) Business Days prior to the Closing Date with all documentation and other information relating to the Company and its Subsidiaries that is reasonably required by bank regulatory authorities under
applicable “know-your-customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act, and beneficial ownership Laws, including a beneficial ownership certification in relation to the Company, which
certification shall be substantially similar to the form of Certification Regarding Beneficial Owners of Legal Entity Customers, published jointly, in May 2018, by the Loan Syndications and Trading Association and Securities
Industry and Financial Markets Association; and
(xiii) taking the actions set forth on Section 7.21(a) of
the Company Disclosure Schedule. Notwithstanding anything to the contrary herein, it is understood and agreed by the parties that a breach of this Section 7.21(a)(xiii) shall not be considered for purposes of the
satisfaction of the condition precedent set forth in Section 8.2(b).
(b) Notwithstanding anything in this Section 7.21 to the contrary, in fulfilling its
obligations pursuant to this Section 7.21, Seller and its Subsidiaries will not be required to: (i) prior to the Closing Date, pay or incur any commitment or other fee or any
out-of-pocket expense (other than customary expenses in connection with the cooperation described in this Section 7.21 that are promptly reimbursed by Purchaser); (ii) prior to the
Closing Date, pass resolutions or consents or approve or authorize the execution of, or execute, the Financing or the Definitive Financing Agreements or related agreements (other than (A) Financing Termination Notices and (B)
Financing Authorization Letters); (iii) cause any director, officer or employee or stockholder of Seller or any of its Subsidiaries to incur any personal liability; or (iv) provide cooperation to
the extent it would unreasonably interfere with the business or operations of the Company and its Subsidiaries.
(c) Purchaser shall promptly, upon request by Seller or the Company, reimburse Seller or the
Company, as applicable, for all reasonable and documented out-of-pocket costs incurred by Seller, the Company or any of its Subsidiaries in connection with any cooperation contemplated by this Section 7.21. Purchaser
shall indemnify and hold harmless Seller, the Company, its Subsidiaries and their respective directors, officers, employees, accountants, consultants, legal counsel, agents, investment bankers and other Representatives from and
against any and all losses or damages actually suffered or incurred by them in connection with the arrangement of the Financing, any actions taken pursuant to this Section 7.21 or any information utilized in connection
therewith, except in the event such loss or damage arises out of (i) the gross negligence, willful misconduct, fraud, or bad faith by Seller, the Company or its Subsidiaries or, in each case, their respective Representatives, (ii)
the material breach of this Agreement thereby or (iii) any written information provided to Purchaser in writing by Seller or its Subsidiaries for inclusion in any materials relating to the Financing.
(d) Seller will use reasonable best efforts to notify Purchaser if any of the Required Financing
Information or any other information provided pursuant to this Section 7.21 is found to have contained any untrue statement of a material fact or to have omitted to state a material fact necessary in order to make the
statements contained therein, taken as a whole, not materially misleading.
(e) For the avoidance of doubt, Purchaser may, to most effectively access the financing
markets, require the cooperation of Seller and its Subsidiaries under this Section 7.21 at any time, and from time to time and on multiple occasions, between the date hereof and the Closing Date.
(f) Notwithstanding anything in this Agreement to the contrary, in no event shall the receipt
or availability of any funds or financing (including the Financing contemplated by the Commitment Letter) by or to Purchaser or any of its Affiliates or any other financing transaction be a condition to any of Purchaser’s
obligations hereunder.
(g) The Company hereby consents to the use of its and its Subsidiaries’ logos by Purchaser in
connection with the Financing so long as such logos are used solely in a manner that is not intended or reasonably likely to harm, disparage or otherwise adversely affect Seller, the Company or any of its Subsidiaries or the
reputation or goodwill of Seller, the Company or any of its Subsidiaries.