(b) The consolidated financial statements of the Company (including all related notes or schedules) included or incorporated by reference in the Company SEC Documents, as of their respective dates of filing with the SEC (or, if such Company SEC Documents were amended prior to the date hereof, the date of the filing of such amendment, with respect to the consolidated financial statements that are amended or restated therein), (i) complied in all material respects with the published rules and regulations of the SEC with respect thereto and applicable accounting requirements, (ii) have been prepared in accordance with GAAP (except, in the case of unaudited quarterly statements, as permitted by Form 10-Q with respect to any financial statements filed on Form 10-Q) applied on a consistent basis during the periods involved (except (A) as may be indicated in the notes thereto or (B) as permitted by Regulation S-X), and (iii) fairly present in all material respects the consolidated financial position of the Company and its consolidated Subsidiaries as of the dates thereof and the consolidated balance sheets, consolidated statements of income, consolidated statements of comprehensive income, consolidated statements of cash flows and consolidated statements of equity for the periods shown (subject, in the case of unaudited quarterly financial statements, to normal and recurring year‑end adjustments).

(c) Neither the Company nor any of its consolidated Subsidiaries has any liabilities of a type required to be disclosed in the liabilities column of a balance sheet prepared in accordance with GAAP, except liabilities (i) disclosed, reflected or reserved against in the audited consolidated balance sheet (or the notes thereto) of the Company as of December 31, 2025 (the “Audited Balance Sheet Date”) included in the Company SEC Documents, (ii) incurred after the Audited Balance Sheet Date in the ordinary course of business (none of which is a liability resulting from breach of contract, breach of warranty, tort, infringement or misappropriation), (iii) as contemplated by this Agreement or otherwise incurred in connection with the Transactions or the process leading to the execution of this Agreement, or (iv) as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

(d) The Company maintains a system of “internal control over financial reporting” (as defined in Rules 13a-15(f) and 15d-15(f) of the Exchange Act) that is designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements in accordance with GAAP, including reasonable assurance (i) that transactions are executed in accordance with management’s general or specific authorizations and recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain asset accountability and (ii) regarding prevention or timely detection of any unauthorized acquisition, use or disposition of the Company’s assets that could have a material effect on the Company’s financial statements. As of the date of this Agreement, no significant deficiency, material weakness or fraud that involves management or other employees who have a role in the preparation of the Company’s financial statements was identified in management’s assessment of internal control over financial reporting as of December 31, 2025. The Company maintains “disclosure controls and procedures” (as defined by Rule 13a-15 or 15d-15 under the Exchange Act). Such disclosure controls and procedures are, except as would not, individually or in the aggregate, reasonably be expected to have, a Material Adverse Effect, designed to ensure that all information required to be disclosed by the Company is recorded, processed, summarized and reported on a timely basis to the individuals responsible for the preparation of the Company’s filings with the SEC to allow timely decisions regarding required disclosure within the time periods specified in the SEC’s rules and forms, and in compliance with the Exchange Act and the Securities Act. The Company has disclosed, based on its most recent evaluation of internal controls over financial reporting, to the Company’s outside auditors and the audit committee of the Company Board (x) all significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting that are reasonably likely to adversely affect the Company’s ability to record, process, summarize and report financial information and (y) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s internal control over financial reporting, all of which information described in clauses (x) and (y) above has been disclosed by the Company to Buyer prior to the date of this Agreement.

(e) As of the date of this Agreement, neither the Company nor any of its Subsidiaries is a party to, or has any commitment to become a party to, any “off balance sheet arrangement” that would be required to be disclosed under Item 303(a) of Regulation S-K as promulgated by the SEC. Except as have been described in the Company SEC Documents, as of the date of this Agreement, there are no unconsolidated direct or indirect Subsidiaries of the Company.

(f) The Proxy Statement and the Schedule 13E-3 (including any amendment or supplement thereto), at the time first sent or given to the stockholders of the Company and at the time of the Company Stockholders Meeting, will comply as to form in all material respects with the requirements of the Exchange Act and will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading. Notwithstanding the foregoing, the Company makes no representation or warranty with respect to statements made or incorporated by reference therein based on information supplied by or on behalf of the Investor Group, Buyer or any of their respective Representatives for inclusion or incorporation by reference in the Proxy Statement or the Schedule 13E-3.

3.07. Absence of Certain Changes.

(a) Since the Audited Balance Sheet Date through the date of this Agreement, except for the execution and performance of this Agreement and the Transactions and the discussions, negotiations and transactions related thereto, the Company Group has conducted its business in the ordinary course of business, except as has not had and would not, individually or in the aggregate, reasonably be expected to have, a Material Adverse Effect.

(b) Since the Audited Balance Sheet Date through the date of this Agreement, there has not been any change, event, development, occurrence, state of facts, circumstances or effect that has had, or would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.

(c) Since June 30, 2026 through the date of this Agreement, the Company Group has not taken any action that, if taken after the date hereof, would constitute a breach of, or otherwise require the consent of Buyer under, any of the covenants set forth in Section 5.01(b)(i), (ii), (vi), (vii), (viii), (ix), (x), (xi), (xii) or (xv).

3.08. Legal Proceedings; Judgments. Except as (a) has not had and would not, individually or in the aggregate, reasonably be expected to have, a Material Adverse Effect or (b) has not, and would not, individually or in the aggregate, reasonably be expected to prevent or materially delay, interfere with, impair or hinder the consummation by the Company of the Transactions or the compliance by the Company with its obligations under this Agreement, there is no pending or, to the Knowledge of the Company, threatened Action or, to the Knowledge of the Company, investigation (x) against any member of the Company Group or its respective assets or properties, (y) against any officer, director or employee of any member of the Company Group, in their capacities as such, or, to the Knowledge of the Company, any other Person with respect to which any member of the Company Group has or would reasonably be expected to have an indemnification obligation, or (z) that is reasonably expected to result in injunctive relief against a member of the Company Group that prohibits such member of the Company Group from engaging in or continuing any conduct, activity, or practice relating to the business of the Company Group. There is no, and since January 1, 2024, there has been no, outstanding order, judgment, injunction, ruling, writ or decree (including a suspension or debarment) of any Governmental Authority (a “Judgment”) by or before any Governmental Authority to which any member of the Company Group is a party or any of its or their respective assets are bound that would, individually or in the aggregate, reasonably be expected to (I) have, a Material Adverse Effect or (II) prevent or materially delay, interfere with, impair or hinder the consummation by the Company of the Transactions or the compliance by the Company with its obligations under this Agreement. Notwithstanding the foregoing, this Section 3.08 does not apply to any Transaction Litigation or stockholder litigation (or a derivative or similar claim) or other Action brought in connection with this Agreement or any of the Transactions, in each case, that first arises on or after the date of this Agreement.

3.09. Compliance with Laws; Permits.

(a) Each member of the Company Group is, and has been since January 1, 2024, in compliance with all Laws or Judgments applicable to such member of the Company Group or its respective properties or assets, except where such failure to comply has not had and would not, individually or in the aggregate, reasonably be expected to have, a Material Adverse Effect.

(b) Each member of the Company Group holds and is, and has been since January 1, 2024, in compliance with all licenses, franchises, permits, certificates, consents, approvals, authorizations, designations, waivers, exemptions, deviations and registrations from Governmental Authorities (collectively, “Permits”) necessary for the lawful conduct of its respective businesses, except where the failure to hold or comply with the same would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

(c) Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, no member of the Company Group nor any of their respective directors, officers or employees acting in such capacity, nor to the Knowledge of the Company, any of its or their respective agents acting on its or their behalf, since January 1, 2024 (i) has made any illegal contributions, gifts, entertainment, or unlawful expenses relating to political activity, has made any bribe, unlawful rebate, payoff, influence payment, kickback or other similar unlawful payment of any nature, or has violated any applicable Anti-Corruption Law, or (ii) has violated any applicable Export-Import Laws.

(d) Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, no member of the Company Group nor any of their respective directors, officers or employees acting in such capacity, nor, to the Knowledge of the Company, any of its or their respective agents acting on its or their behalf, since January 1, 2024, has (i) been or is a Sanctioned Person, (ii) engaged in any transactions, directly or indirectly, with or for the benefit of any Sanctioned Person or in or involving any Sanctioned Jurisdiction, or (iii) otherwise violated applicable Sanctions.

(e) Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, since January 1, 2024, the Company and its consolidated Subsidiaries have adhered to a system of internal controls and maintained accurate books and records as required by the U.S. Foreign Corrupt Practices Act of 1977. The Company has established and maintains policies and procedures reasonably designed to promote and achieve compliance with any Anti-Corruption Laws, Anti-Money Laundering Laws and Sanctions applicable to the Company Group.

(f) Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, since January 1, 2024, no member of the Company Group has received any allegation, inquiry, notice or communication that alleges that such member of the Company Group, or any director, officer or, to the Knowledge of the Company, employee, agent, representative, or other Person acting for or on behalf or at the direction thereof, has violated any Anti-Corruption Laws, Anti-Money Laundering Laws, Sanctions, or Export-Import Laws.

3.10. Tax Matters.

(a) Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, each member of the Company Group has properly prepared (or caused to be prepared) and timely filed (taking into account valid extensions of time within which to file) all Tax Returns (including information provided therewith or with respect thereto) required to be filed by it, and all such filed Tax Returns (taking into account all amendments thereto) are true, complete and accurate in all respects.

(b) Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, all Taxes owed by the Company Group that are due (whether or not shown on any Tax Return) have been timely paid or have been adequately reserved against in accordance with GAAP.

(c) Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, each member of the Company Group has complied with all applicable Laws relating to the withholding of Taxes.

(d) Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, since January 1, 2024 through the date hereof, no member of the Company Group has any currently open, or received written notice of, any pending audits, examinations, investigations, proposed adjustments, claims or other proceedings in respect of any Taxes.

(e) Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, there are no Encumbrances for Taxes upon the assets or properties of the Company Group, except for any Permitted Encumbrances.

(f) No member of the Company Group has been a “controlled corporation” or a “distributing corporation” in any distribution occurring during the two-year period ending on the date of this Agreement that was purported or intended to be governed by Section 355 of the Code (or any similar provision of state, local or non-U.S. Law).

(g) No member of the Company Group has been a member of an affiliated group of corporations filing a consolidated U.S. federal income Tax Return (other than a group the common parent of which is the Company) or has any liability for the Taxes of any Person (other than another member of the Company Group) under Treasury Regulations Section 1.1502-6 (or any similar provision of any state, local or non-U.S. Law) or as a transferee or successor, other than by reason of ordinary course commercial agreements not primarily related to Taxes.

(h) Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, no member of the Company Group is a party to, or bound by, or has any obligation under, any Tax sharing, Tax allocation or Tax indemnification Contract other than (i) Contracts solely among the Company Group and (ii) any Contract entered into in the ordinary course of business and the primary purpose of which is not related to Taxes.

(i) Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, no member of the Company Group has waived any statute of limitations in respect of Taxes or agreed to any extension of time with respect to an assessment, collection, reassessment or deficiency for Taxes (other than pursuant to extensions of time to file Tax Returns obtained in the ordinary course of business) and no request for any such waiver or extension is currently pending.

(j) No member of the Company Group has participated in any “listed transaction” within the meaning of Treasury Regulations Section 1.6011-4(b)(2).

(k) Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, no member of the Company Group will be required to include in a taxable period ending after the Closing Date an amount of taxable income attributable to income that accrued in a taxable period prior to the Closing Date but was not recognized for Tax purposes in such prior taxable period as a result of the installment method of accounting, an open transaction disposition, the completed contract method of accounting, the long-term contract method of accounting, or Section 481 of the Code or comparable provisions of state, local or non-U.S. Tax Law.

(l) Within the past three years, no member of the Company Group has executed, entered into or is subject to any closing agreement under Section 7121 of the Code, IRS private letter ruling or advance pricing agreement or comparable agreement or ruling of any other taxing authority that is still in effect, nor is any such ruling or request for such ruling currently pending.

3.11. Employee Benefits.

(a) With respect to each material Company Plan, the Company has made available to Buyer true, correct and complete copies (to the extent applicable) of (i) the plan document or a written description thereof (or, if appropriate, a form thereof), including any amendments thereto, (ii) the most recent determination or opinion letter from the IRS, if applicable, (iii) the most recent annual report on Form 5500 filed with the IRS (and attached schedules) and the most recent actuarial valuation or similar report (to the extent available), (iv) each current trust agreement or other funding vehicle, and (v) for the three most recent years, any material non-routine correspondence with the IRS, the United States Department of Labor, the Pension Benefit Guaranty Corporation, the SEC and any other Governmental Authority regarding the operation and administration of any such material Company Plan. For purposes of this Section 3.11, the following types of Company Plans will not be considered material Company Plans: (A) any plan, program, or policy providing customary health, welfare, or fringe benefits made available in the ordinary course of business to a broad-based group of employees on a nondiscriminatory basis, including medical, dental, vision, life insurance, disability, vacation, holiday, sick leave, expense reimbursement or relocation benefits; or (B) any commission, incentive or bonus compensation arrangement that (1) is adopted and administered by the Company Group in the ordinary course of business, (2) determines an individual’s variable compensation primarily by reference to sales, service, financing or other performance metrics of a specific dealership, store or other business unit, and (3) is offered on substantially similar terms to a class of similarly situated employees at the applicable dealership or business unit.

(b) Each Company Plan has been administered in compliance with its terms and applicable Laws, including ERISA and the Code, as applicable, other than instances of noncompliance that would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, each Company Plan intended to be “qualified” within the meaning of Section 401(a) of the Code is so qualified and has received a favorable determination letter from the IRS or is entitled to rely upon a favorable opinion issued by the IRS, and to the Knowledge of the Company, there are no existing circumstances or any events that have occurred that could reasonably be expected to cause the loss of any such qualification status. There are no pending, or to the Knowledge of the Company, threatened claims (other than routine claims for benefits) by, on behalf of or involving any Company Plan or any trust related thereto and no audit or other proceeding by a Governmental Authority is pending, or to the Knowledge of the Company, threatened with respect to any Company Plan, in each case, except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

(c) Except as set forth in Section 3.11(c) of the Company Disclosure Letter, neither the Company nor any of its ERISA Affiliates has, since January 1, 2024, maintained, sponsored or contributed to or been obligated to maintain, sponsor or contribute to, or has any liability with respect to any (i) defined benefit pension plan (as defined in Section 3(35) of ERISA) or a plan subject to Title IV of ERISA or Section 412 of the Code, (ii) “multiemployer plan” (as defined in Section 3(37) or 4001(a)(3) of ERISA), (iii) multiple employer welfare arrangement as defined in Section 3(40) of ERISA, (iv) multiple employer plan as defined in Section 201 of ERISA or Section 413(c) of the Code, or (v) post-termination or post-retirement health, life, disability or other welfare benefits, or coverage, other than benefits or coverage required to be provided under Part 6 of Title I of ERISA or Section 4980(B)(f) of the Code or any other applicable Law.

(d) Except as set forth in this Agreement, the consummation of the Merger Transactions will not, either alone or in combination with another event, result in (i) any of the following with respect to any current or former director, officer, employee or other individual service provider of the Company Group: (A) any payment, compensation or benefit becoming due, or any increase thereof; (B) the acceleration of the time of payment or vesting of any payment, compensation or benefit, or increase thereof, and (C) any funding (through a grantor trust or otherwise) of any compensation or benefit; or (ii) any limitation or restriction on the right to amend, terminate or transfer the assets of any material Company Plan on or following the Effective Time.

(e) The consummation of the Merger Transactions will not, either alone or in combination with any other event, result in the payment of any amount that could, individually or in combination with any other payment, be characterized as an “excess parachute payment” (as such term is defined in Section 280G(b)(1) of the Code). No member of the Company Group is a party to or has any obligation under any Company Plan or otherwise to gross-up or indemnify any person for excise Taxes payable pursuant to Section 409A or 4999 of the Code.

(f) Each Company Plan administered in or covering employees in the U.S. that is a “non-qualified deferred compensation plan” (as such term is defined in Section 409A(d) of the Code) has been maintained in documentary and operational compliance with the requirements of Section 409A of the Code and the applicable guidance thereunder, other than instances of noncompliance that would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

(g) All Company Plans maintained outside the jurisdiction of the U.S. that provide compensation or benefits in respect of any employee of the Company Group that is primarily based outside the U.S., (i) if intended to qualify for special Tax treatment or be registered, meet all requirements for such treatment or are registered, (ii) if intended to be funded or book-reserved, are fully funded or book-reserved, as appropriate, based upon reasonable actuarial assumptions, and (iii) have been maintained in good standing with applicable Governmental Authorities and in compliance with all applicable Laws, in each case, except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

(h) The Company has the authority to take all required actions and provide such direction as contemplated by Section 5.18 with respect to the Company KSOP. The Company KSOP was validly authorized and established in accordance with applicable Law in all material respects and is a qualified employee stock ownership plan within the meaning of Section 4975(e)(7) of the Code. The Company KSOP has received a favorable determination or opinion letter from the IRS that the Company KSOP plan document meets the applicable qualification requirements of Section 401(a) of the Code, and, to the Knowledge of the Company, since the date of such determination (A) such qualified status has not been revoked and (B) nothing has occurred that would reasonably be expected to cause revocation of such qualified status. The Company KSOP has been administered and operated in compliance in all material respects with its terms and all applicable Law, including ERISA and the Code. All shares of Company Common Stock owned by the Company KSOP are, and have at all times constituted, “employer securities” as that term is defined in Section 409(l) of the Code and “qualifying employer securities” as defined in Section 407(d)(5) of ERISA. All shares of Company Common Stock purchased by the Company KSOP were purchased for no more than “adequate consideration” within the meaning of Section 3(18) of ERISA. Neither the Company nor any “party in interest” or “disqualified person” with respect to the Company KSOP has engaged in a non-exempt “prohibited transaction” within the meaning of Section 4975 of the Code or Section 406 of ERISA. Neither the Company KSOP nor the Company is subject to any claims or liabilities in respect of the Company KSOP, except for the payment of benefits and expenses payable in connection with the administration of the Company KSOP. There are no outstanding loans related to the Company KSOP or outstanding loans that have been used to purchase shares of Company Common Stock under the Company KSOP.

(i) Section 3.11(i) of the Company Disclosure Letter sets forth a true, correct and complete list of all Equity-Based Awards outstanding as of the date of this Agreement, including with respect to each such award (i) the name of the holder thereof, (ii) the number of shares or the amount of cash subject to such award, (iii) the grant or issuance date, and (iv) any applicable vesting schedule.

3.12. Labor Matters.

(a) Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, there is no, and since January 1, 2024, there has been no, labor dispute, strike, controversy, slowdown, work stoppage or lockout pending or, to the Knowledge of the Company, threatened against or affecting any member of the Company Group. Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, since January 1, 2024 to the date of this Agreement, there have been no union grievances or union representation questions involving employees or the Company Group or any such grievances or union representation questions threatened against or affecting the Company Group. Neither the execution and delivery of this Agreement nor the consummation of the Transactions (either alone or in combination with another event) requires the provision of information to, or consultations, discussions or negotiations with, employee representative bodies (including any unions or works councils) that represent employees of the Company Group, except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

(b) Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, each member of the Company Group is, and since January 1, 2024 has been, in compliance with all applicable Laws and Judgments relating to labor, employment and employment practices, including all such Laws relating to discrimination, harassment, retaliation, equal opportunity, affirmative action, workers’ compensation, terms and conditions of employment, termination of employment, wages, overtime, classification and compensation of employees and consultants and independent contractors, social security and Tax matters in connection with employees and independent contractors, pay equity, hours, disability rights and benefits, employee leaves of absence, occupational safety and health, employee whistle-blowing, immigration, employee privacy, child labor, unfair labor practices, labor relations, profit sharing, employment hiring, paid sick time, background screens, drug testing, and layoffs (including the Worker Adjustment and Retraining Notification Act of 1988, or similar federal, state or local mass layoff or plant closing Law).

(c) Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, or as set forth on Section 3.12(c) of the Company Disclosure Letter, there is no, and since January 1, 2024, there has been no, pending, or, to the Knowledge of the Company, threatened Action against the Company Group brought by or on behalf of any applicant for employment, any current or former employee, officer, director or individual service provider of the Company Group, or any person alleging to be a current or former employee, or any group or class of the foregoing, or any Governmental Authority, alleging (i) violation of any labor or employment Laws, (ii) breach of any collective bargaining agreement, (iii) breach of any express or implied contract of employment, (iv) wrongful termination of employment, or (v) any other discriminatory, wrongful or tortious conduct in connection with any employment relationship, including before the Equal Employment Opportunity Commission.

(d) Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, no member of the Company Group is currently bound by any consent decree with, or citation by, any Governmental Authority relating to employees or employment practices. Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, no member of the Company Group or any of its executive officers has received since January 1, 2024 any notice of intent by any Governmental Authority responsible for the enforcement of labor or employment laws to conduct an investigation relating to the Company Group and, to the Knowledge of the Company, no such investigation is in progress.

3.13. Environmental Matters.

(a) Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, each member of the Company Group is, and since January 1, 2024 has been, in compliance with all Environmental Laws and in possession of and compliance with all Permits required under Environmental Laws.

(b) Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, there is no pending or, to the Knowledge of the Company, threatened Action against any member of the Company Group arising under Environmental Laws.

(c) Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, no Hazardous Materials have been Released on, at, under or from any Company Group property that would reasonably be expected to give rise to any Action against, or any obligation to conduct investigation or remediation by, any member of the Company Group under any Environmental Law.

3.14. Intellectual Property.

(a) Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, (i) the Company Group owns all of the Owned Company Intellectual Property, free and clear of all Encumbrances (other than Permitted Encumbrances), (ii) all of the Registered Company Intellectual Property is subsisting, and to the Knowledge of the Company, all Owned Company Intellectual Property is valid and enforceable, and (iii) the Company Group has taken all necessary actions to maintain and protect each item of Registered Company Intellectual Property.

(b) Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, a member of the Company Group owns, is licensed or otherwise has the right to use all material Intellectual Property reasonably necessary to conduct the business of the Company Group (taken as a whole) as conducted as of the date hereof (the “Company Intellectual Property”).

(c) Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, (i) the Company Group has used commercially reasonable efforts to protect and maintain the confidentiality of Trade Secrets included in the Owned Company Intellectual Property and (ii) to the Knowledge of the Company, there has been no unauthorized disclosure or use of any Trade Secret included in the Owned Company Intellectual Property.

(d) Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, no adverse third-party Actions are pending or, to the Knowledge of the Company, threatened in writing against any member of the Company Group (i) challenging the ownership, validity or use by the Company Group of any Owned Company Intellectual Property or (ii) alleging that any member of the Company Group is infringing, misappropriating or otherwise violating the Intellectual Property of any Person.

(e) Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, currently and since January 1, 2024, to the Knowledge of the Company, (i) no Person is or has been infringing, misappropriating or otherwise violating the rights of the Company Group with respect to any Owned Company Intellectual Property, and (ii) the operation of the business of the Company Group is not violating, misappropriating or infringing nor has violated, misappropriated or infringed the Intellectual Property of any other Person.

(f) Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, since January 1, 2024, (i) the Company Group is using, developing and deploying AI Technology in compliance in all material respects with the applicable Contracts and Laws regarding the same, (ii) the Company Group has not used AI Technology to create or develop any material Owned Company Intellectual Property, and (iii) the Company Group has implemented commercially reasonable policies and procedures to govern its use of AI Technology.

(g) Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, (i) each member of the Company Group is in compliance with the requirements of the licenses for any Open Source Software incorporated into any software included in the Owned Company Intellectual Property, and (ii) no member of the Company Group is required to provide any source code of software included in the Owned Company Intellectual Property to any party pursuant to any of the licenses (including any version of GNU General Public License or the GNU Affero General Public License) for Open Source Software or as a result of using any of the Open Source Software (other than the Open Source Software itself), except for software that is removable or replaceable without material costs or material interruption of the Company Group’s business (taken as a whole).

3.15. Data Privacy and Technology; Information Security.

(a) Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, (i) each member of the Company Group is in compliance with all applicable Data Security and Privacy Requirements and (ii) since January 1, 2024, no member of the Company Group has received a complaint from any Governmental Authority regarding its Processing of Personal Information that is pending or unresolved. Since January 1, 2024, each member of the Company Group has used commercially reasonable measures designed to ensure the confidentiality, integrity, privacy and security of Personal Information within the control of the Company Group and designed to protect any Personal Information under their control from any access that would violate Data Privacy Laws applicable to the Company Group.

(b) Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, since January 1, 2024, to the Knowledge of the Company, no member of the Company Group has experienced any breaches, outages or unauthorized accesses to the Company IT Assets or any breaches of or unauthorized accesses to Personal Information or Trade Secrets within the possession or control of the Company Group.

(c) Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, the Company IT Assets material to the business of the Company Group operate and perform in all respects as required to permit the Company Group to conduct the business of the Company Group (taken as a whole) as conducted as of the date hereof. Each member of the Company Group has taken commercially reasonable steps and implemented commercially reasonable safeguards, in each case designed to protect the Company IT Assets material to the business of the Company Group from unauthorized access and from any disabling codes or instructions, spyware, Trojan horses, worms, viruses or other software routines that are designed to cause unauthorized access to, or unauthorized disruption, impairment, disablement or destruction of, software, data or other materials (“Malicious Code”). Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, to the Knowledge of the Company, the Company Products, Company IT Assets and all software material to the business of the Company Group are free from Malicious Code.

3.16. Property.

(a) With respect to the Owned Real Property, except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, (i) the Company Group has good and marketable title to such property, free and clear of any Encumbrance (other than Permitted Encumbrances) and (ii) there are no outstanding options, rights of first offer or rights of first refusal or other similar rights in favor of any third party to purchase such property, or any portion thereof or interest therein.

(b) Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, (i) each Company Lease is in full force and effect, and the Company Group has a good and valid leasehold, sub-leasehold or license interest (as lessee, sublessee or licensee) in each Leased Real Property, free and clear of all Encumbrances (other than Permitted Encumbrances), (ii) no member of the Company Group has received written notice of any Actions in eminent domain, condemnation or other similar Actions that are pending, and, to the Knowledge of the Company, there are no such Actions threatened, in each case, affecting any portion of the Leased Real Property, and (iii) no Leased Real Property is subject to any lease, license, sublease or use and occupancy agreement pursuant to which the Company has granted any third party the right to use or occupy all or any portion of any Leased Real Property.

3.17. Contracts.

(a) For purposes of this Agreement, “Material Contract” means any Contract (but excluding any Company Plan) to which the Company Group is a party or by which the Company Group or any of their respective properties or assets is bound that:

(i) is filed as an exhibit to the Company’s Annual Report on Form 10-K or is otherwise a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K under the Securities Act);

(ii) is a joint venture, partnership or other similar arrangement that is material to the business of the Company Group, taken as a whole, other than with respect to any partnership that is wholly owned by the Company Group;

(iii) (A) provides for indebtedness of the Company Group having an outstanding principal amount or committed principal amount in excess of $75,000,000 (other than (x) indebtedness solely between or among any of the Company and its wholly owned Subsidiaries or (y) with respect to floorplan, wholesale, inventory or similar financing), (B) under which the Company Group has directly or indirectly guaranteed any obligation of a joint venture or partnership, other than with respect to any partnership that is wholly owned by the Company Group (including any guarantee of indebtedness or any “keep well” or other agreement to maintain any financial statement condition), or (C) under which the Company Group, directly or indirectly, has agreed to make any advance, loan, extension of credit or capital contribution to, or other investment in, any Person (other than the Company or any of its wholly owned Subsidiaries), in any such case which, individually, is in excess of $75,000,000, other than investments in the Company Group;

(iv) relates to the acquisition or disposition of any business, assets or properties (whether by merger, sale of stock, sale of assets or otherwise), other than acquisitions or dispositions of real property, for aggregate consideration under such Contract in excess of $75,000,000 that was entered into after January 1, 2024, excluding (A) acquisitions or dispositions in the ordinary course of business, (B) acquisitions or dispositions of assets that are no longer used or useful in the conduct of business of the Company Group, or (C) repurchases by the Company of Company Common Stock;

(v) is a Contract for maintenance or repair and overhaul that would be expected to result in the Company Group incurring costs in excess of $75,000,000 in the 12-month period following the date hereof;

(vi) is a Contract not referred to in the other subsections of this Section 3.17(a) and that is outside the ordinary course of business and by its terms (A) is reasonably expected to result in (1) minimum payments to the Company Group under such Contract of more than $75,000,000 in the 12-month period following the date of this Agreement or (2) minimum payments from the Company Group under such Contract of more than $75,000,000 in the 12-month period following the date of this Agreement, or (B) except with respect to Company Leases, has five years or more remaining in its term, provides for payments to or from the Company Group under such Contract following the date of this Agreement in excess of $75,000,000 annually or $250,000,000 in the aggregate and cannot be canceled by the Company Group upon notice of 90 days or less;

(vii) is (A) a Contract with a Significant Manufacturer or (B) a Framework Agreement;

(viii) is a settlement agreement imposing future limitations that materially impact the operation of the Company Group or that includes the admission of wrongdoing by the Company Group or any of their respective officers or directors;

(ix) prohibits the payment of dividends or distributions in respect of the capital stock of the Company Group, prohibits the pledging of the capital stock of the Company Group or prohibits the issuance of guarantees by the Company Group;

(x) is a Company Lease that requires base rental payments by any member of the Company Group in excess of $4,000,000 for the calendar year ending December 31, 2026 or any calendar year thereafter ; or

(xi) is a Collective Bargaining Agreement.

(b) Except with respect to any Contract that has expired in accordance with its terms, been terminated, restated or replaced, (i) subject to the Enforceability Exception, each Material Contract is valid and binding on the Company Group to the extent such Person is a party thereto, as applicable, and to the Knowledge of the Company, each other party thereto, and is in full force and effect, except where the failure to be valid, binding or in full force and effect would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, (ii) the Company Group, and, to the Knowledge of the Company, any other party thereto, have performed all obligations required to be performed by it under each Material Contract, except where such nonperformance would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, (iii) no member of the Company Group has received written notice of the existence of any breach or default on the part of such member of the Company Group under any Material Contract, except where such breach or default would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, and (iv) to the Knowledge of the Company, the counterparty under such Material Contract is not in breach or default thereof, except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

(c) The Company has made available to Buyer true, correct and complete copies of the Material Contracts as in effect as of the date hereof except with respect to (i) the Company Leases, (ii) any Material Contracts that are included as exhibits to the Company SEC Documents, and (iii) other than the Framework Agreements, any Dealer Arrangements.

3.18. Government Contracts.

(a) Each member of the Company Group is in compliance with applicable statutory, regulatory and contractual requirements applicable to each Government Contract, except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

(b) Since January 1, 2024, with respect to any Government Contract, (i) there has been no civil fraud, criminal or bribery investigation by any Governmental Authority against any member of the Company Group, (ii) all written representations, certifications and disclosures made by the Company Group were current, accurate and complete when made, except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, and (iii) neither any Governmental Authority nor any prime contractor or subcontractor has notified any member of the Company Group, in writing, that they have, or are alleged to have, materially breached or violated any Law, representation, certification, or requirement pertaining to any Government Contract.

3.19. Insurance. Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, (a) the Company Group has all policies of insurance covering the Company Group and any of their respective employees, properties or assets, that are customarily carried by Persons of similar size and conducting business similar to that of the Company Group, (b) all insurance policies of the Company Group are in full force and effect, except for any expiration thereof in accordance with the terms thereof, (c) all premiums due under such insurance policies have been paid, (d) the Company Group is not in default under any such insurance policy, and (e) no written notice of cancelation, termination, non-renewal or material modification in coverage has been received with respect to any such insurance policy.

3.20. No Rights Agreement; Anti-Takeover Provisions.

(a) As of the date hereof, the Company is not party to a stockholder rights agreement, “poison pill” or similar anti-takeover agreement or plan.

(b) Assuming the accuracy of the representations and warranties set forth in Section 4.04, the Company Board or the Special Committee has taken all necessary actions so that the restrictions on business combinations set forth in Section 203 of the DGCL and any other similar Law are not applicable to this Agreement and no “business combination,” “control share acquisition,” “fair price,” “moratorium” or other anti-takeover Law (each, together with Section 203 of the DGCL, a “Takeover Law”) applies or will apply to the Merger or the other Transactions. To the Knowledge of the Company, no other Takeover Law, anti-takeover, business combination or control share acquisition or similar Law applies to the Merger or the other Transactions.

3.21. Opinion of Financial Advisor. Moelis & Company LLC (“Moelis”) has delivered to the Special Committee its written opinion (or oral opinion to be confirmed in writing), dated as of the date thereof, to the effect that, as of the date of such opinion and subject to the various assumptions made, procedures followed, matters considered, and qualifications and limitations set forth therein, the Merger Consideration to be received by holders of Company Common Stock (excluding the holders of Excluded Shares, any shares of Company Common Stock to be canceled in accordance with Section 2.01(a), and Appraisal Shares) pursuant to this Agreement is fair from a financial point of view to such holders of shares of Company Common Stock (other than the Investor Group Members, the Company and any of their respective Affiliates) (it being understood and agreed that such written opinion is for the benefit of the Special Committee and may not be relied upon by the Investor Group Members). A signed, true, correct and complete copy of Moelis’s opinion will be made available to Buyer for informational purposes only (on a non-reliance basis) promptly following receipt by the Special Committee and the Company Board (and, in any event, within two Business Days of the date of this Agreement).

3.22. Brokers and Other Advisors. Except for Moelis, the fees and expenses of which will be paid by the Company, no broker, investment banker, financial advisor or other Person is entitled to any broker’s, finder’s, financial advisor’s or other similar fee or commission, in connection with the Merger Transactions based upon arrangements made by or on behalf of the Company Group.

3.23. CFIUS. Neither the Company nor any of its Subsidiaries produces, designs, tests, manufactures, fabricates or develops one or more “critical technologies,” within the meaning of section 721 of the Defense Production Act of 1950, including all implementing regulations thereof administered by CFIUS.

3.24. No Other Buyer Representations or Warranties. In entering into this Agreement, the Company acknowledges that it has relied solely upon its own investigation, review and analysis of Buyer and not on any factual representations or opinions of Buyer or its Representatives (except the representations and warranties contained in Article IV). Except for the representations and warranties made by Buyer in Article IV (or in any certificate or other agreement provided pursuant to this Agreement or in any of the Ancillary Documents), none of Buyer or any other Person on behalf of Buyer makes any other express or implied representation or warranty with respect to Buyer, its Affiliates or its businesses, operations, assets, liabilities, condition (financial or otherwise) or prospects, and the Company acknowledges the foregoing.

ARTICLE IV

Representations and Warranties of Buyer

Buyer represents and warrants to the Company:

4.01. Organization; Standing. Buyer is a corporation duly incorporated, validly existing under the laws of the State of Delaware and is in good standing with the Secretary of State of Delaware. Buyer has all requisite corporate power and authority necessary to carry on its business as it is now being conducted. Buyer (in jurisdictions that recognize the following concepts) is duly licensed or qualified to do business as a foreign corporation and is in good standing in each jurisdiction in which the nature of the business conducted by it or the character or location of the properties and assets owned or leased by it makes such licensing or qualification necessary, except where the failure to be so licensed, qualified or in good standing would not, individually or in the aggregate, reasonably be expected to have a Buyer Material Adverse Effect. Buyer has made available to the Company complete and correct copies of its certificate of incorporation and bylaws, each as amended to the date of this Agreement.

4.02. Authority; Noncontravention.

(a) Buyer has all necessary corporate power and authority to execute and deliver this Agreement, to perform its obligations hereunder and to consummate the Merger Transactions. The board of directors of Buyer has adopted resolutions by unanimous written consent (i) (A) approving and declaring advisable this Agreement and the Transactions, (B) determining that this Agreement and the Transactions are fair to, and in the best interests of, Buyer and Buyer’s stockholders, and (C) resolving to recommend that Buyer’s stockholders adopt this Agreement and approve the Transactions, and (ii) directing that this Agreement be submitted to Buyer’s stockholders for their adoption with effect immediately after the execution of this Agreement, which resolutions have not been subsequently rescinded, modified or withdrawn. The stockholders of Buyer, each of which is an Investor Group Member, have adopted this Agreement and approved the Transactions by unanimous written consent, with such consent to be effective immediately following the execution and delivery of this Agreement. Except as expressly set forth in this Section 4.02(a), or would not, individually or in the aggregate, reasonably be expected to have a Buyer Material Adverse Effect, no other action on the part of Buyer is necessary to authorize the execution, delivery and performance by Buyer of this Agreement and the consummation by Buyer of the Transactions. This Agreement has been duly executed and delivered by Buyer and, assuming due authorization, execution and delivery hereof by the Company, constitutes a legal, valid and binding obligation of Buyer, enforceable against it in accordance with its terms, subject to the Enforceability Exception.

(b) Neither the execution and delivery of this Agreement by Buyer, nor the consummation by Buyer of the Transactions, nor performance or compliance by Buyer with any of the terms or provisions hereof applicable to it, will (i) conflict with or violate any provision of the certificate of incorporation or bylaws of Buyer or (ii) assuming that the consents, approvals, filings, licenses, permits, authorizations, declarations, notifications and registrations referred to in Section 4.03 are obtained prior to the Effective Time and the filings referred to in Section 4.03 are made and any waiting periods thereunder have terminated or expired prior to the Effective Time, (x) violate any Law or Judgment applicable to Buyer or (y) violate or constitute a default under any of the terms, conditions or provisions of any Contract to which Buyer is a party or accelerate Buyer’s obligations under any such Contract, except, in the case of clause (ii), as would not, individually or in the aggregate, reasonably be expected to have a Buyer Material Adverse Effect.

4.03. Governmental Approvals.

(a) Except for (i) compliance with the applicable requirements of the Exchange Act, including the filing with the SEC of the Proxy Statement and the Schedule 13E-3, (ii) compliance with the rules and regulations of the NYSE, (iii) the filing of the Certificate of Merger with the Secretary of State of Delaware pursuant to the DGCL, (iv) filings required under, and compliance with other applicable requirements of, the HSR Act and any other Antitrust Laws or FDI Laws set forth on Section 3.05 of the Company Disclosure Letter, and (v) compliance with any applicable state securities or blue sky laws, no consent or approval of, or filing, license, permit or authorization, declaration, notification or registration with, any Governmental Authority is necessary for the execution and delivery of this Agreement by Buyer, the performance by Buyer of its obligations hereunder and the consummation of the Transactions by Buyer, other than such other consents, approvals, filings, licenses, permits or authorizations, declarations, notifications or registrations that, if not obtained, made or given, would not, individually or in the aggregate, reasonably be expected to have a Buyer Material Adverse Effect.

4.04. Ownership and Operations of Buyer. The Investor Group collectively owns beneficially and of record all of the outstanding shares of capital stock of Buyer, free and clear of all Encumbrances, other than (a) Encumbrances in connection with the Financing, (b) Encumbrances under the Interim Investors Agreement, dated as of the date hereof, among Buyer and the Investor Group Members, none of which would reasonably be expected to prevent or materially delay the Closing, and (c) transfer restrictions of general applicability as may be provided under the Securities Act or other applicable securities Laws. Except for the Equity Commitment Letters, there are no options, warrants, rights, convertible or exchangeable securities, stock-based performance units or Contracts to which Buyer is a party or by which Buyer is bound obligating Buyer to issue, deliver or sell, or cause to be issued, delivered or sold, additional shares of capital stock of, or any security convertible or exchangeable for any shares of capital stock of, Buyer. Buyer was formed solely for the purpose of engaging in the Transactions, has no liabilities or obligations of any nature other than those incident to its formation or pursuant to the Transactions and, prior to the Effective Time, will not engage in any other business activities other than those relating to the Transactions or those incident to their formation.

4.05. Financing.

(a) Buyer has delivered to the Company true, complete and correct copies of (i) the Debt Commitment Letter and (ii) the Equity Commitment Letters.

(b) Buyer has delivered to the Company true, complete and correct copies of any fee letter referred to in the Commitment Letters, subject, in the case of each such fee letter, to redaction solely of pricing and other economic terms, fee amounts and the “market flex” provisions that are customarily redacted in transactions of this type, none of which redactions covers terms that could (i) reduce the amount of the Financing below the amount required to satisfy the Financing Uses or (ii) impose any new condition or contingency or otherwise adversely amend, modify or expand any conditions precedent to the receipt of any portion of the Financing necessary to consummate the Transactions in a manner that would reasonably be expected to (A) prevent or materially delay the Closing or (B) adversely affect the ability of Buyer to enforce its rights against the other parties to the Commitment Letters. The Equity Commitment Letters provide that the Company is an express third-party beneficiary thereof solely for the purposes and subject to the conditions set forth therein. Notwithstanding anything to the contrary herein, for purposes of this Agreement, including this Article IV, any delay that would not permit the Closing to occur on or before the Outside Date shall be deemed to be a material delay.

(c) As of the date of this Agreement, (i) none of the Commitment Letters in the form delivered to the Company have been amended, supplemented or modified and (ii) the respective commitments contained in the Commitment Letters have not been withdrawn, terminated or rescinded in any respect and, to the Knowledge of Buyer, no such withdrawal, termination or rescission is contemplated. As of the date of this Agreement, except for the fee letters referred to in Section 4.05(b) and customary engagement letters and fee credit letters with respect to the Debt Financing (none of which (x) reduces the amount of the Financing below the amount required to satisfy the Financing Uses, (y) imposes any new condition or contingency or otherwise adversely amends, modifies or expands any conditions precedent to the receipt of any portion of the Financing necessary to consummate the Transactions in a manner that would reasonably be expected to (A) prevent or materially delay the Closing or (B) adversely affect the ability of Buyer to enforce its rights against the other parties to the Commitment Letters), there are no side letters or Contracts to which Buyer is a party related to the funding or investing, as applicable, of the Financing other than as expressly set forth in the Commitment Letters delivered to the Company on or prior to the date hereof that could (i) reduce the amount of the Financing below the amount required to satisfy the Financing Uses or (ii) impose any new condition or contingency or otherwise adversely amend, modify or expand any condition precedent to the receipt of any portion of the Financing necessary to consummate the Transactions in a manner that would be reasonably expected to (A) prevent or materially delay the Closing or (B) adversely affect the ability of Buyer to enforce its rights under the Commitment Letters.

(d) As of the date of this Agreement, Buyer has fully paid all commitment fees, if any, or other fees in connection with the Commitment Letters that are due and payable on or prior to the date hereof pursuant to the terms of the Commitment Letters.

(e) As of the date of this Agreement, the Commitment Letters are in full force and effect and are the legal, valid, binding and fully enforceable obligations of Buyer, and, to the Knowledge of Buyer, each of the other parties thereto, except, in each case, as such enforceability may be limited by the Enforceability Exception. As of the date of this Agreement, there are no conditions precedent or other contingencies related to the funding or investing, as applicable, of the full amount of the Financing required to satisfy the Financing Uses (including pursuant to any “market flex” provisions in any fee letters), other than as expressly set forth in the Commitment Letters. As of the date of this Agreement, no event has occurred which, with or without notice, lapse of time or both, would or would reasonably be expected to (i) constitute a default or breach on the part of Buyer or, to the Knowledge of Buyer, any other party thereto under any of the Commitment Letters, (ii) constitute a failure to satisfy a condition on the part of Buyer, or to the Knowledge of Buyer, any other party thereto, under any of the Commitment Letters, or (iii) otherwise result in any portion of the Financing required to satisfy the Financing Uses being unavailable on the Closing Date; provided, however, that Buyer is not making any representation or warranty regarding the effect of any inaccuracy of the representations and warranties of the Company set forth in Article III, or any failure by the Company to comply with its obligations under the terms of this Agreement.

(f) As of the date of this Agreement, assuming the satisfaction or waiver of the conditions set forth in Sections 6.01 and 6.02, Buyer has no reason to believe that any of the conditions to the Financing contemplated by the Commitment Letters applicable to Buyer, will not be satisfied or that the full amount of the Financing required to satisfy the Financing Uses will not be made available to Buyer in full on the Closing Date. The aggregate proceeds contemplated by the Commitment Letters are sufficient to (i) pay the aggregate Merger Consideration and the other payments under Article II, in connection with or as a result of the Merger (which does not include, for the avoidance of doubt, any payments with respect to any Excluded Shares), (ii) pay any and all fees and expenses incurred by or on behalf of Buyer, the Surviving Corporation or any of their respective Affiliates required to be paid at Closing by Buyer in connection with the Merger, the Financing and the other Transactions, (iii) prepay or repay any outstanding indebtedness of the Company Group required by this Agreement to be prepaid or repaid, (iv) satisfy all of the liabilities or other payment obligations (including liabilities or other obligations of the Company Group) required to be paid or otherwise funded by Buyer in connection with the Transactions, and (v) otherwise consummate the Transactions upon the terms contemplated by this Agreement (clauses (i) through (v), the “Financing Uses”).

4.06. Limited Guarantees. Concurrently with the execution of this Agreement, Buyer has delivered to the Company a true, complete and correct copy of each duly executed Limited Guarantee. Each Limited Guarantee is in full force and effect and constitutes the legal, valid, binding and fully enforceable obligations of the Guarantor party thereto, enforceable against such Guarantor in accordance with its terms, except as such enforceability may be limited by the Enforceability Exception. As of the date of this Agreement, no event has occurred which, with or without notice, lapse of time or both, would or would reasonably be expected to (i) constitute a default or breach on the part of any Guarantor under any Limited Guarantee, (ii) constitute a failure to satisfy a condition on the part of any Guarantor under any Limited Guarantee, or (iii) otherwise result in any portion of amounts guaranteed under any Limited Guarantee being unavailable as and when required to be paid in accordance with the Limited Guarantee and this Agreement.

4.07. Solvency. Buyer is not entering into this Agreement (and none of the Guarantors are entering into their respective Limited Guarantees) with the actual intent to hinder, delay or defraud present or future creditors of the Company or any of its Subsidiaries. Assuming (a) satisfaction or waiver of the conditions to Buyer’s obligation to consummate the Merger, (b) the accuracy of the representations and warranties of the Company set forth in Article III, (c) the solvency of the Company Group immediately prior to giving effect to the Transactions, and (d) the payment of the aggregate Merger Consideration and the other amounts required to be paid pursuant to Article II, the satisfaction in full of the Financing Uses and the funding of the Financing pursuant to the Commitment Letters, the Surviving Corporation and its Subsidiaries, on a consolidated basis, will be Solvent as of the Effective Time and immediately after the consummation of the applicable Transactions. For the purposes of this Agreement, the term “Solvent,” when used with respect to any Person, means that, as of any date of determination, (i) the fair value of the assets of such Person and its Subsidiaries on a consolidated basis, at a fair valuation, will exceed the debts and liabilities, direct, subordinated, contingent or otherwise, of such Person and its Subsidiaries on a consolidated basis, (ii) the present fair saleable value of the property of such Person and its Subsidiaries on a consolidated basis will be greater than the amount that will be required to pay the probable liability of such Person and its Subsidiaries on a consolidated basis on their debts and other liabilities, direct, subordinated, contingent or otherwise, as such debts and other liabilities become absolute and matured, (iii) such Person and its Subsidiaries on a consolidated basis will be able to pay their debts and liabilities, direct, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured, and (iv) such Person and its Subsidiaries on a consolidated basis will not have unreasonably small capital with which to conduct the businesses in which they are engaged as such businesses are now conducted and are proposed to be conducted following the date of determination.

4.08. Absence of Certain Arrangements. None of Buyer, any Investor Group Member or any of their respective Affiliates has entered into any Contract with any bank or investment bank or other potential provider of debt financing on an exclusive basis in connection with any transaction involving the Company (or otherwise on terms that would prohibit such provider from providing or seeking to provide such financing to any third party in connection with a transaction relating to the Company or any of its Subsidiaries), except for such actions to which the Company has previously agreed in writing. Other than this Agreement, the Support Agreements, the Confidentiality Agreement, the Limited Guarantees and the Commitment Letters, as of the date hereof, there are no Contracts or any commitments to enter into any Contract between Buyer, any Investor Group Member or any of their respective Affiliates, on the one hand, and any director, officer, employee or stockholder (other than another Investor Group Member or any Investor Group Affiliate) of the Company, on the other hand, regarding the Transactions or the operations of the Surviving Corporation after the Effective Time.

4.09. Brokers and Other Advisors. No broker, investment banker, financial advisor or other Person is entitled to any broker’s, finder’s, financial advisor’s or other similar fee or commission payable by the Company or any of its Subsidiaries in connection with the Transactions based upon arrangements made by or on behalf of Buyer.

4.10. Ownership of Company Common Stock. Except for (a) the Investor Group Affiliates set forth on Section 4.10 to the Buyer Disclosure Letter and (b) other Investor Group Affiliates that are officers, directors or employees of the Company Group, none of Buyer, any Investor Group Member or any of their respective Subsidiaries or Affiliates beneficially owns, directly or indirectly (including pursuant to a derivatives contract), any shares of Company Common Stock or other securities convertible into, exchangeable for or exercisable for shares of Company Common Stock or any securities of any Subsidiary of the Company other than Excluded Shares, and neither Buyer nor any of its Subsidiaries or Affiliates has any rights to acquire, directly or indirectly, any shares of Company Common Stock, except pursuant to this Agreement. For a period of at least the three years prior to the date hereof, the Penske Parties, on the one hand, have continuously beneficially owned, directly or indirectly, shares of Company Common Stock representing not less than 15% of the voting power of the outstanding voting stock of the Company, and the Mitsui Parties, on the other hand, have continuously beneficially owned, directly or indirectly, shares of Company Common Stock representing not less than 15% of the voting power of the outstanding voting stock of the Company.

4.11. Information Supplied. None of the information supplied or to be supplied by or on behalf of Buyer or its Affiliates for inclusion or incorporation by reference in the Proxy Statement and the Schedule 13E-3 (including any amendments or supplements thereto) will, at the time the Proxy Statement and the Schedule 13E-3 (or any amendment or supplement thereto) are first sent or given to the stockholders of the Company and at the time of the Company Stockholders Meeting, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they are made, not misleading. Notwithstanding the foregoing, neither Buyer nor any of its Affiliates make any representation or warranty with respect to statements made or incorporated by reference therein based on information supplied by or on behalf of the Company or any Affiliates thereof for inclusion or incorporation by reference in the Proxy Statement, the Schedule 13E-3 or other required SEC filings.

4.12. Legal Proceedings. Except as would not, individually or in the aggregate, reasonably be expected to have a Buyer Material Adverse Effect, as of the date of this Agreement, there is no (a) pending or, to the Knowledge of Buyer, threatened Action against Buyer or any of its Affiliates or (b) Judgment imposed upon or affecting Buyer or any of its Affiliates, in each case, by or before any Governmental Authority.

4.13. No Other Company Representations or Warranties. Except for the representations and warranties made by the Company in Article III (or in any certificate or other agreement provided pursuant to this Agreement or in any of the Ancillary Documents), Buyer hereby acknowledges (for itself and on behalf of its Affiliates and Representatives) that neither the Company Group, nor any other Person, has made or is making, and Buyer and its Affiliates and Representatives have not relied on and are not relying on, any other express or implied representation or warranty with respect to the Company or any of its Subsidiaries or their respective businesses, operations, properties, assets, liabilities, condition (financial or otherwise) or prospects, or any estimates, projections, forecasts and other forward-looking information or business and strategic plan information regarding the Company Group, notwithstanding the delivery or disclosure to Buyer or any of its Affiliates or Representatives of any documentation, forecasts or other information (in any form or through any medium) with respect to any one or more of the foregoing or any oral, written, video, electronic or other information developed by Buyer or any of its Affiliates or Representatives, Buyer hereby acknowledges (for itself and on behalf of its Affiliates and Representatives) that it has conducted, to its satisfaction, its own independent investigation of the business, operations, assets and financial condition of the Company Group and, in making their determination to proceed with the Transactions, Buyer and its Affiliates and Representatives have relied on the results of their own independent investigation.

4.14. Non-Reliance. In connection with the due diligence investigation of the Company by Buyer and its Affiliates and Representatives, the negotiations of this Agreement or the course of the Transactions, Buyer and its Affiliates and Representatives have received and may continue to receive from the Company certain estimates, projections, forecasts and other forward-looking information, as well as certain business and strategic plan information, regarding the Company Group and their respective businesses and operations. Buyer hereby acknowledges (for itself and on behalf of its Affiliates and Representatives) that there are uncertainties inherent in attempting to make such estimates, projections, forecasts and other forward-looking statements, as well as in such business and strategic plans, with which Buyer is familiar, Buyer (for itself and on behalf of its Affiliates and Representatives) is taking full responsibility for making its own evaluation of the adequacy and accuracy of all estimates, projections, forecasts and other forward-looking information, as well as such business plans, so furnished to them (including the reasonableness of the assumptions underlying such estimates, projections, forecasts, forward-looking information or business plans), and that Buyer, its Affiliates and Representatives have not relied on such information and will have no claim against the Company or any of its Subsidiaries, or any of their respective Representatives, with respect thereto or, except for the representations and warranties expressly set forth in Article III (or in any certificate or other agreement provided pursuant to this Agreement or in any of the Ancillary Documents), any rights hereunder with respect thereto.

ARTICLE V

Additional Covenants and Agreements

5.01. Conduct of Business.

(a) Except (x) as required by applicable Law, Judgment or a Governmental Authority, (y) as required or expressly contemplated by this Agreement, or (z) as set forth in Section 5.01(a) of the Company Disclosure Letter, during the period from the date of this Agreement until the Effective Time (or such earlier date on which this Agreement is validly terminated pursuant to Section 7.01), unless Buyer otherwise consents in writing (such consent not to be unreasonably withheld, conditioned or delayed), the Company will, and will cause each of its Subsidiaries to, (i) use its reasonable best efforts to act and carry on the business of the Company Group in the ordinary course of business in all material respects and (ii) use its reasonable best efforts to (A) preserve in all material respects the Company Group’s current business organizations intact and preserve in all material respects its present and future relationships with customers, suppliers, joint venture partners, lenders and other financing sources, Governmental Authorities and other Persons with which the Company Group has material business relations or regulator relations and (B) keep available the services of its directors, officers and key employees (it being agreed that no action or omission by the Company or any of its Subsidiaries with respect to a matter specifically addressed by any provision of Section 5.01(b) will be deemed a breach of this Section 5.01(a)).

(b) Except as (x) required by applicable Law, Judgment or a Governmental Authority, (y) as required or expressly contemplated by this Agreement, or (z) as set forth in Section 5.01(b) of the Company Disclosure Letter, during the period from the date of this Agreement until the Effective Time (or such earlier date on which this Agreement is validly terminated pursuant to Section 7.01), unless Buyer otherwise consents in advance in writing (such consent not to be unreasonably withheld, conditioned or delayed), the Company will not, and will cause its Subsidiaries not to:

(i) except in connection with the pledge of equity interests pursuant to the Credit Facilities, issue or grant, or authorize the issuance or grant of, any shares of the capital stock of any member of the Company Group or other equity or voting interests, equity-based awards or any securities convertible into, or exchangeable or exercisable for, any shares of its capital stock or other equity or voting interests (including any rights, warrants or options to purchase any shares of its capital stock or other equity or voting interests) of any member of the Company Group; provided that the Company may issue shares of Company Common Stock (A) upon the vesting of Company RSUs and Company DSUs that are outstanding on the date of this Agreement in accordance with, and subject to the terms thereof in effect on the date of this Agreement (or granted following the date of this Agreement to the extent permitted by this Section 5.01(b)), or (B) as required by any Company Plans in effect on the date of this Agreement;

(ii) redeem, purchase or otherwise acquire, or offer to redeem, repurchase or otherwise acquire, any shares of the capital stock or other equity or voting interests of a member of the Company Group, or any securities convertible into, or exchangeable or exercisable for, any shares of its capital stock or other equity or voting interests or equity-based awards (including any rights, warrants or options to purchase any shares of its capital stock or other equity or voting interests of a member of the Company Group) (other than pursuant to the forfeiture of, or withholding of Taxes with respect to, Equity-Based Awards);

(iii) other than (i) regular quarterly dividends (with record and payment dates consistent with past practice) by the Company, in each case, in an amount not to exceed $0.02 per share above the per share amount of the last quarterly dividend declared and paid by the Company in the immediately preceding quarter, (ii) a “stub period” dividend to holders of record of Company Common Stock as of immediately prior to the Effective Time in an amount per share equal to the product of (A) the number of days from the record date for payment of the last regular quarterly dividend paid by the Company prior to the Effective Time, multiplied by (B) a daily dividend rate determined by dividing the amount per share of such last regular quarterly dividend by 91, or (iii) dividends and distributions by a direct or indirect wholly owned Subsidiary of the Company to its parent (in the cases of clauses (i) and (ii), which the Parties hereby agree will be established, declared, set aside and paid, as applicable, from the date of this Agreement through the Effective Time or as otherwise in accordance with the first sentence of Section 2.02(c)), establish a record date for, declare, set aside for payment or pay any dividend on, or make any other distribution (whether in cash, securities or other property) in respect of, any shares of its capital stock or other equity or voting interests;

(iv) split, reverse split, combine, consolidate, subdivide, reclassify, adjust or recapitalize any shares of its capital stock or other equity or voting interests, or equity-based awards, or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock or other equity or voting securities or equity-based awards, except for any such transaction by a wholly owned Subsidiary of the Company which remains a wholly owned Subsidiary after consummation of such transaction;

(v) adopt a plan of complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization of the Company or any of its Subsidiaries (other than the Merger), except for the liquidation or dissolution of any dormant Subsidiary;

(vi) incur, create, assume, issue, sell, syndicate or refinance any Indebtedness or guarantee, endorse or otherwise become liable for (whether directly, contingently or otherwise) the Indebtedness of any Person, except for (A) intercompany Indebtedness among the Company and its wholly owned Subsidiaries in the ordinary course of business, (B) borrowings permitted under the Credit Facilities as in effect on the date of this Agreement in an aggregate principal amount outstanding at any time that would not exceed an amount equal to $700,000,000 in excess of the amount outstanding on June 30, 2026, (C) Indebtedness incurred in connection with the renewal, extension or refinancing of any Indebtedness or revolving facility or line of credit existing on the date of this Agreement (including the Credit Facilities) or permitted to be incurred, assumed or otherwise entered into hereunder, in each case, as set forth in Section 5.01(b)(vi)(C) of the Company Disclosure Letter, (D) the Financing and any Company Credit Agreement Amendment and borrowings under the Company Credit Agreement, (E) Indebtedness that will be repaid, terminated or released prior to or in connection with the Closing, (F) Indebtedness for borrowed money under letters of credit, bonds, sureties or similar credit support or assurances in the ordinary course of business, (G) Indebtedness related to Dealer Arrangements, floor plan credit facilities, wholesale financing facilities and inventory financing facilities in the ordinary course of business, (H) Indebtedness related to mortgages on Owned Real Property and (I) additional Indebtedness incurred in the ordinary course of business after the date of this Agreement in an aggregate principal amount outstanding at any time not to exceed $100,000,000;

(vii) sell, lease, license, transfer to any Person, or pledge, abandon or otherwise dispose of, in a single transaction or series of related transactions, any of the material properties, assets, businesses or rights of the Company Group (excluding Owned Company Intellectual Property), except (A) transfers, sales or leases among the Company and its wholly owned Subsidiaries, (B) dispositions of obsolete or surplus assets that are no longer used or useful in the conduct of the business of the Company or any of its Subsidiaries, (C) leases, subleases or licenses of Owned Real Property or Leased Real Property, and voluntary terminations or surrenders of such leases, subleases or licenses, in each case, in the ordinary course of business, including pursuant to any Dealership Agreement, (D) sales or leases of inventory in the ordinary course of business (and related retail installment purchase and lease purchase agreements with respect thereto), and (E) pledges in connection with the Encumbrances permitted under Section 5.01(b)(viii) and in the ordinary course of business;

(viii) grant any Encumbrance (other than a Permitted Encumbrance) on any of its material assets other than Encumbrances (A) to secure Indebtedness and other obligations permitted under Section 5.01(b)(vi) (but subject to the restrictions set forth in Section 5.01(b)(vi)), (B) under equipment leases entered into in the ordinary course of business, or (C) in favor of the Company or a wholly owned Subsidiary of the Company;

(ix) acquire (by merger, consolidation, acquisition of stock or assets or otherwise), or make any investment in, directly or indirectly, the capital stock or a material portion of the assets of any other Person or business, or division thereof, if the aggregate amount of consideration paid or transferred by the Company Group in connection with all such transactions would exceed $75,000,000;

(x) except as required pursuant to the terms of any Company Plan or Collective Bargaining Agreement in effect on the date of this Agreement, (A) grant to any executive officer any material increase in compensation other than increases in base cash compensation in the ordinary course of business consistent with past practice in connection with the Company’s annual review cycle, (B) increase, grant, provide, promise or otherwise agree to any severance, termination or other similar payments or retention benefits to any individual service provider of the Company Group, (C) make any new performance-based awards that would have constituted Company Performance Awards if in existence on the date hereof, (D) establish, adopt, enter into, terminate or amend in any material respect any Collective Bargaining Agreement that would reasonably be expected to result in a material increase in the costs to the Company or any of its Subsidiaries of maintaining such Collective Bargaining Agreement or material Company Plan or any plan, agreement, program, policy or other arrangement that would be a material Company Plan if in existence on the date hereof (other than such amendments to the Company KSOP as may be deemed advisable by the administrator of the Company KSOP to effectuate the treatment of the Company KSOP contemplated by Section 5.18, including the KSOP Amendment), or (E) take any action to accelerate any rights or benefits under any material Company Plan; provided, however, that the foregoing will not restrict the Company Group from providing employees below the Executive Vice President level who are newly hired or promoted based on job performance or workplace requirements, in each case, in the ordinary course of business, plans, agreements, benefits and compensation arrangements (excluding equity or equity-based incentive grants) that have a value that is consistent with the value of compensation and benefits provided to employees holding similar positions (and, for clarity, the Company Group may enter into, adopt, establish or amend Company Plans and other arrangements to the limited extent necessary to provide such compensation and benefits to such newly hired or promoted employees);

(xi) make any material changes in financial accounting methods, principles or practices, except insofar as may be required by GAAP (or any interpretation thereof), a Governmental Authority or the Financial Accounting Standards Board (or any similar organization);

(xii) (A) make, change or revoke any Tax election, adopt or change any Tax accounting method or change any Tax accounting period, (B) file any Tax Return in a manner inconsistent with past practice, except as otherwise required by a change in applicable Law, (C) settle or compromise any suit, claim, action, investigation, proceeding or audit with respect to Taxes involving payments or liability in excess of $2,000,000 in the aggregate, or (D) file any amended Tax Return; except in each case to the extent not material to the Company Group as a whole;

(xiii) amend or otherwise change (whether by merger, consolidation or otherwise) the (A) Company Charter Documents or (B) the comparable organizational documents of any Subsidiary of the Company, in the case of this clause (B), in any manner materially adverse to Buyer or its Affiliates;

(xiv) subject to the other restrictions set forth in Section 5.01, other than a renewal of a Contract (including any Company Lease) on substantially similar terms as or more favorable to the Company Group than those in effect on the date of this Agreement, enter into, extend or renew, or otherwise modify, amend, terminate (other than terminations occurring as a result of the expiration of the term thereof) or waive any material rights or obligations under, any Material Contract of a type described in Section 3.17(a)(ii), Section 3.17(a)(vi), Section 3.17(a)(vii) or Section 3.17(a)(viii) of the definition thereof (or in each case, any Contract that, if entered into prior to the date of this Agreement, would be a Material Contract of a type described in Section 3.17(a)(ii), Section 3.17(a)(vi), Section 3.17(a)(vii) or Section 3.17(a)(viii) of the definition thereof), in each case, in a manner that would, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect;

(xv) subject to Section 5.08, settle, release, waive or compromise any pending or threatened Action against the Company Group, other than settlements of any pending or threatened Action (A) in which the Company or any of its Subsidiaries is named as a nominal defendant, (B) reflected or reserved against in the balance sheet (or the notes thereto) of the Company as of the Audited Balance Sheet Date included in the Company SEC Documents for an amount not in excess of the amount so reflected or reserved (excluding any amount that may be paid under insurance policies or indemnification agreements), or (C) if the amount of any such settlement is individually not material to the Company and the Company’s Subsidiaries, taken as a whole, after taking into account any amounts that may be paid under insurance policies or indemnification agreements; provided that no settlement of any pending or threatened Action may involve any material injunctive or equitable relief or impose material restrictions on the business activities of the Company Group, taken as a whole;

(xvi) make or commit to any capital expenditures other than in the ordinary course of business and which do not exceed, in the aggregate, for the period between the date hereof and the Effective Time, 150% of the capital expenditures by the Company for the calendar year ended December 31, 2025; or

(xvii) commit or agree, in writing or otherwise, to take any of the foregoing actions or adopt any resolutions in support of any of the foregoing actions.

(c) Nothing contained in this Agreement is intended to give Buyer, directly or indirectly, the right to control or direct the Company Group’s operations prior to the Effective Time. Prior to the Effective Time, the Company will exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over its and its Subsidiaries’ respective operations.

5.02. Solicitation; Change in Recommendation.

(a) No Solicitation. From the date of this Agreement until the earlier of the Effective Time and the valid termination of this Agreement in accordance with Article VII, except as permitted by this Section 5.02, the Company will not, and will cause each of its and its Subsidiaries’ officers and directors not to, and will direct its Representatives engaged in connection with the Transactions not to, directly or indirectly, and to not announce any public intention to, (i) initiate, solicit, cause or knowingly encourage (including by way of furnishing non-public information) or otherwise knowingly assist the submission of any inquiries regarding, or the making of any proposal or offer that constitutes, or would reasonably be expected to lead to, a Takeover Proposal, (ii) engage in, continue, facilitate or otherwise participate in any discussions or negotiations regarding (except to notify any Person of the provisions of this Section 5.02) a Takeover Proposal or any inquiry or proposal that would reasonably be expected to lead to a Takeover Proposal, or furnish to any other Person any information or afford any Person with access to the business, employees, officers, Contracts, properties, assets or books and records of the Company Group, in each case in connection with, or for the purpose of, encouraging, facilitating or assisting a Takeover Proposal, or where such Person has made or indicated an intention to make, a Takeover Proposal, (iii) approve, endorse or recommend a Takeover Proposal, (iv) enter into any letter of intent, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement or other similar agreement providing for a Takeover Proposal or any agreement requiring the Company to abandon, terminate or fail to consummate the Merger Transactions, or (v) resolve, endorse, recommend, agree or propose to do any of the foregoing. Notwithstanding anything to the contrary contained in this Agreement, the Company shall be permitted to grant waivers of, and not enforce, any standstill provision or similar provision that has the effect of prohibiting the counterparty thereto from making an unsolicited Takeover Proposal.

(b) Exceptions to Non-Solicitation. Notwithstanding anything contained in Section 5.02(a) or any other provision of this Agreement to the contrary, if at any time on or after the date of this Agreement and prior to obtaining the Company Stockholder Approval, the Company or any of its Representatives receives a Takeover Proposal, which Takeover Proposal did not result from any breach of this Section 5.02, (i) the Company and its Representatives may contact and engage in discussions with such Person or group of Persons making the Takeover Proposal or its or their Representatives and financing sources to clarify the terms and conditions thereof or to request that any Takeover Proposal made orally be made in writing or to notify such Person or group of Persons or its or their Representatives and financing sources of the provisions of this Section 5.02, and (ii) if the Special Committee or the Company Board (acting on the recommendation of the Special Committee) determines in good faith, after consultation with its financial advisors and outside legal counsel, that such Takeover Proposal constitutes or could reasonably be expected to result in a Superior Proposal, then the Company and any of its Representatives may enter into an Acceptable Confidentiality Agreement with the Person or group of Persons making such Takeover Proposal and, pursuant to such Acceptable Confidentiality Agreement, (A) furnish information with respect to the Company Group to the Person or group of Persons who has made such Takeover Proposal and its or their respective Representatives and financing sources; provided that the Company will promptly provide to Buyer any material non-public information concerning the Company or any of its Subsidiaries that is provided to any Person given such access which was not previously provided to Buyer or its Representatives prior to, or substantially concurrently with, the time it is provided to such Person or group of Persons, and (B) engage in or otherwise participate in discussions or negotiations regarding such Takeover Proposal with the Person or group of Persons making such Takeover Proposal and its or their Representatives and financing sources.

(c) Notice of Acquisition Proposals. Following the date of this Agreement and prior to the Company Stockholder Approval, the Company will promptly (but, in any event, within 24 hours following receipt) notify Buyer in the event the Company or any of its or its Subsidiaries’ officers or directors or its or their other Representatives receive a Takeover Proposal and will disclose to Buyer the material terms and conditions of any such Takeover Proposal (including copies of any such written Takeover Proposal or of any written materials relating thereto (or where no written materials are provided, a reasonably detailed written description thereof)) and the identity of the Person or group of Persons making such Takeover Proposal, and the Company will thereafter keep Buyer informed on a reasonably current basis of any material developments with respect to any such Takeover Proposal (including any material changes thereto) and the status of any discussions or negotiations in connection with the Takeover Proposal. For the avoidance of doubt, all information provided to Buyer pursuant to this Section 5.02(c) will be subject to the terms of the Confidentiality Agreement.

(d) No Change of Recommendation. None of the Company Board or the Special Committee will (i) (A) fail to include the Company Recommendation or the Special Committee Recommendation in the Proxy Statement and Schedule 13E-3, (B) withdraw, withhold or modify, amend or qualify in a manner adverse to Buyer, or publicly propose to withdraw, withhold or modify, amend or qualify in a manner adverse to Buyer, the Company Recommendation or the Special Committee Recommendation, or otherwise make any public statement or proposal inconsistent with the Company Recommendation or the Special Committee Recommendation, (C) recommend the approval or adoption of, or approve or adopt, or publicly propose to recommend, approve or adopt, any Takeover Proposal, (D) fail to recommend, in a Solicitation/Recommendation Statement on Schedule 14D-9, against any Takeover Proposal subject to Regulation 14D under the Exchange Act within ten Business Days after commencement of such Takeover Proposal, (E) within five Business Days following a written request by Buyer following the date any Takeover Proposal or any material modification thereto is first published or sent, given or communicated to the Company Stockholders (other than a Takeover Proposal subject to Regulation 14D, which is covered by clause (D)), fail to issue a press release that reaffirms the Company Recommendation or the Special Committee Recommendation; provided that Buyer may not make any such request on more than one occasion in respect of any Takeover Proposal or any material modification of a Takeover Proposal, or (F) publicly propose or agree to any of the foregoing (any action described in this clause (i) being referred to as an “Adverse Recommendation Change”), or (ii) execute or enter into (or cause or permit the Company or any of its Subsidiaries to execute or enter into) any letter of intent, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement or other similar agreement providing for a Takeover Proposal, other than any Acceptable Confidentiality Agreement (each, a “Company Acquisition Agreement”).

(e) Superior Proposals. Notwithstanding anything to the contrary set forth in this Section 5.02, prior to obtaining the Company Stockholder Approval, the Special Committee or the Company Board (acting on the recommendation of the Special Committee) may, in response to an unsolicited, bona fide written Takeover Proposal that is made after the date of this Agreement and which did not result from a material breach by the Company of its obligations set forth in Section 5.02(a), effect an Adverse Recommendation Change or terminate this Agreement to enter into a Company Acquisition Agreement if and only if (i) the Special Committee or the Company Board (acting on the recommendation of the Special Committee) determines in good faith, after consultation with its outside legal counsel and financial advisor, that such Takeover Proposal constitutes a Superior Proposal, (ii) the Special Committee or the Company Board (acting on the recommendation of the Special Committee), as applicable, has given Buyer written notice (a “Takeover Proposal Notice”) (which will not constitute an Adverse Recommendation Change) at least five Business Days in advance (the “Notice Period”) of the Adverse Recommendation Change or termination, as applicable, which notice will set forth in writing that it intends to take such action and a reasonably detailed description of the basis therefor and will also include all information required by Section 5.02(c), mutatis mutandis, (iii) during the Notice Period, the Special Committee on behalf of the Company will, and will cause its Representatives to, if requested by Buyer, negotiate in good faith with Buyer, including providing Buyer the opportunity to make a presentation to the Company Board and the Special Committee regarding this Agreement and, to the extent applicable, any proposed revisions to this Agreement in response to such Takeover Proposal, and (iv) at the end of the Notice Period, the Special Committee or the Company Board (acting on the recommendation of the Special Committee), as applicable, determines in good faith, after consultation with its outside legal counsel and financial advisor (and taking into account any adjustment or modification of the terms of this Agreement to which Buyer has irrevocably and in writing agreed to make), that the Takeover Proposal continues to be a Superior Proposal and, after consultation with its outside legal counsel, that the failure to effect an Adverse Recommendation Change or terminate this Agreement to enter into a Company Acquisition Agreement would reasonably be expected to be inconsistent with the directors’ fiduciary duties under applicable Law. Any material amendment or modification to any Takeover Proposal will require a new Takeover Proposal Notice, and the Notice Period will be extended by an additional three Business Days from the date of receipt of such new Takeover Proposal.

(f) Intervening Events. Notwithstanding anything to the contrary set forth in this Section 5.02, prior to obtaining the Company Stockholder Approval, the Special Committee or the Company Board (acting on the recommendation of the Special Committee) may make an Adverse Recommendation Change in respect of an Intervening Event if and only if (i) the Special Committee or the Company Board (acting on the recommendation of the Special Committee) determines in good faith, after consultation with its outside legal counsel and financial advisor, that the failure to make an Adverse Recommendation Change in response to such Intervening Event would reasonably be expected to be inconsistent with the directors’ fiduciary duties under applicable Law, (ii) the Special Committee or the Company Board (acting on the recommendation of the Special Committee), as applicable, has given Buyer written notice (which will not constitute an Adverse Recommendation Change) at least as long as the Notice Period in advance of the Adverse Recommendation Change, which notice will set forth in writing that it intends to take such action and a reasonably detailed description of the basis therefor, (iii) during the Notice Period, the Special Committee on behalf of the Company will, and will cause its Representatives to, if requested by Buyer, negotiate in good faith with Buyer, including providing Buyer the opportunity to make a presentation to the Company Board and the Special Committee regarding this Agreement and, to the extent applicable, any proposed revisions to this Agreement in response to such Intervening Event, and (iv) at the end of the Notice Period, the Special Committee or the Company Board (acting on the recommendation of the Special Committee), as applicable, determines in good faith, after consultation with its outside legal counsel and financial advisor (and taking into account any adjustment or modification of the terms of this Agreement to which Buyer has irrevocably and in writing agreed to make), that the failure to effect an Adverse Recommendation Change would reasonably be expected to be inconsistent with the directors’ fiduciary duties under applicable Law.

(g) Certain Permitted Disclosures. Nothing in this Section 5.02 or elsewhere in this Agreement will prohibit the Company from (i) disclosing a position contemplated by Rule 14d-9, Rule 14e-2(a) or Item 1012(a) of Regulation M-A under the Exchange Act, (ii) making any “stop, look and listen” statement or similar communication of the type contemplated by Rule 14d-9(f) under the Exchange Act, or (iii) informing any Person or group of the existence of the provisions contained in this Section 5.02; provided, however, that nothing in this Section 5.02(g) will be deemed to permit the Company, the Special Committee or the Company Board (acting on the recommendation of the Special Committee) to effect an Adverse Recommendation Change other than in accordance with Section 5.02(e) or Section 5.02(f); it being understood that a disclosure that constitutes only a “stop, look and listen” statement or similar communication of the type contemplated by Rule 14d-9(f) under the Exchange Act will not be deemed to be an Adverse Recommendation Change if it (x) reaffirms the Company Recommendation and the Special Committee Recommendation or (y) includes a factually accurate public statement that describes the Company’s receipt of a Takeover Proposal, that no position has been taken by the Company Board or the Special Committee as to the advisability or desirability of a Takeover Proposal and the operation of this Agreement with respect thereto.

5.03. Efforts.

(a) Subject to the terms and conditions of this Agreement (and the other sections of this Section 5.03), each Party will cooperate with the other Parties and use (and the Company will cause its Subsidiaries to use and Buyer will cause its Affiliates to use) their respective reasonable best efforts to as promptly as reasonably practicable (i) take, or cause to be taken, all actions, and do, or cause to be done, and assist and cooperate with the other Parties in doing, all things necessary, proper or advisable to cause the conditions to Closing to be satisfied as promptly as reasonably practicable and to consummate and make effective, in the most expeditious manner reasonably practicable, the Transactions, including preparing and filing promptly and fully all documentation to effect all necessary, proper and advisable filings, notices, petitions, statements, registrations, declarations, submissions of information, applications, reports and other documents, (ii) obtain all approvals, consents, registrations, waivers, permits, authorizations, exemptions, clearances, orders and other confirmations from any Governmental Authority or third party necessary, proper or advisable to consummate the Transactions, and (iii) execute and deliver any additional instruments necessary to consummate the Transactions.

(b) In furtherance and not in limitation of the foregoing, the Company and Buyer will each use (and the Company will cause its Subsidiaries to use and Buyer will cause its Affiliates to use) their respective reasonable best efforts to (i) take all action necessary to ensure that no Takeover Law is or becomes applicable to any of the Transactions and refrain from taking any actions that would cause the applicability of such Laws and (ii) if the restrictions of any Takeover Law become applicable to any of the Transactions, take all action reasonably necessary to ensure that the Transactions may be consummated as promptly as practicable on the terms contemplated by this Agreement and otherwise lawfully minimize the effect of such Takeover Law on the Transactions.

(c) Subject to Section 5.03(d), Buyer will solely control the timing and strategy for obtaining any approvals, consents, registrations, waivers, permits, authorizations, exemptions, clearances, orders and other confirmations from any other Governmental Authorities in connection with the Transactions (including, for the avoidance of doubt, any Required Regulatory Approvals) and coordinate the overall development of the positions to be taken and the regulatory actions to be requested in any filing or submission with such other Governmental Authority in connection with the Transactions and in connection with any investigation or other inquiry or litigation by or before, or any negotiations with, any such other Governmental Authority relating to the Transactions and of all other regulatory matters incidental thereto, including the final content of any substantive communications with any applicable Governmental Authority with respect to obtaining approval or expiration of any waiting period under the HSR Act and any applicable Antitrust Laws; provided that Buyer will, in good faith, cooperate and consult with the Company in advance and take into consideration the Company’s views, suggestions and comments regarding nonconfidential strategy, efforts and positions to be taken and regulatory actions requested in any filing or submission with such other Governmental Authority.

(d) Notwithstanding anything to the contrary in Section 5.03(a) and Section 5.03(b), each Party agrees to (i) make (and the Company will cause its Subsidiaries and Buyer will cause its Affiliates or, if required pursuant to the HSR Act, any of the Equity Commitment Parties or Investor Group Members or any of their respective Affiliates to make) an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the Transactions as promptly as reasonably practicable, but no later than 20 Business Days, following the date of this Agreement, and to supply (and the Company will cause its Subsidiaries and Buyer will cause its Affiliates or, if required pursuant to the HSR Act, any of the Equity Commitment Parties or Investor Group Members or any of their respective Affiliates to supply) as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act, (ii) use reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, and to assist and cooperate with the other Party in doing, all things reasonably necessary, proper or advisable to obtain approval under any Antitrust Laws that may be required by any foreign or U.S. federal, state or local Governmental Authority, in each case with competent jurisdiction, so as to enable the Parties to consummate the Transactions, (iii) make any filing to any Governmental Authority that is legally mandatory or necessary, proper or advisable to obtain any Required Regulatory Approval as promptly as reasonably practicable following the date hereof, and to supply as promptly as reasonably practicable any additional information and documentary material that may be requested by a Governmental Authority, and (iv) promptly take any and all steps necessary to secure clearance of any filing before a Governmental Authority. Subject to Section 5.03 of the Buyer Disclosure Letter, Buyer’s reasonable best efforts to consummate the Transactions shall include taking or committing to take or causing its controlled Affiliates to take or commit to take any of the following actions: (A) (I) executing settlements, undertakings, consent decrees, stipulations or other agreements with any Governmental Authority or with any other Person; (II) placing restrictions on or agreeing to place restrictions on particular assets or categories of assets or businesses, services or other operations or interests of Buyer; (III) permitting the Company to place any restrictions on any of the particular assets or categories of assets or businesses, services or other operations or interests of the Company or any of its Subsidiaries prior to the Effective Time; (IV) terminating existing relationships, contractual rights or obligations of (x) the Company or its Subsidiaries or (y) Buyer or any of its controlled Affiliates; (V) creating any relationship, contractual right or obligation of (x) the Company or its Subsidiaries or (y) Buyer or any of its controlled Affiliates; or (VI) effectuating any other change or restructuring of (x) the Company or its Subsidiaries or (y) Buyer or any of its controlled Affiliates and (B) defending through litigation any claim asserted in court or administrative or other tribunal by any Person (including any Governmental Authority) in order to avoid the entry of, or to have vacated or terminated, any Restraint that is seeking to or would prevent the Closing prior to the Outside Date then in effect; provided, however, that notwithstanding anything to the contrary in this Section 5.03 or Section 5.03 of the Buyer Disclosure Letter, none of Buyer, any Investor Group Member, any Equity Commitment Party, or any of their respective Affiliates will be required to take or commit to taking any action that would materially adversely affect the governance, economic or other material rights or interests of (x) the Company and its Affiliates, taken as a whole or (y) Buyer, any Investor Group Member, any Equity Commitment Party, or any of their respective Affiliates, taken as a whole. Notwithstanding anything to the contrary in this Section 5.03 or Section 5.03 of the Buyer Disclosure Letter, none of Buyer, the Company, any of its Subsidiaries, any Investor Group Member, any Equity Commitment Party, nor any of their respective Affiliates will be required to sell, divest, hold separate or otherwise dispose of, or agree to sell, divest, hold separate or otherwise dispose of, any assets, businesses or interests. Subject to the foregoing, Buyer will respond to and seek to resolve (subject to its efforts obligations hereunder) as promptly as reasonably practicable any objections asserted by any Governmental Authority with respect to the Transactions. Each of the Company and Buyer will not take (and each of Company and Buyer will cause their respective Affiliates not to take) any action with the intention to, or that would reasonably be expected to, hinder or delay the expiration or termination of any waiting period under the HSR Act or the obtaining of approval of the DOJ or FTC as necessary, in each case, beyond the Outside Date. Nothing in this Agreement will require any party to take or agree to take any action with respect to its business or operations unless the effectiveness of such agreement or action is conditioned upon the Closing. Neither Buyer nor the Company will commit (and will cause their respective Affiliates, including, in the case of Buyer, the Equity Commitment Parties and Investor Group Members and their respective Affiliates, not to commit) to or agree with any Governmental Authority to stay, toll or extend any applicable waiting period under the HSR Act or any other Antitrust Laws or enter into a timing agreement with any Governmental Authority, without the prior written consent of the other Party (such consent not to be unreasonably withheld, conditioned or delayed).

(e) Without limiting the foregoing, Buyer will not, and will not permit any Equity Commitment Party, Investor Group Member or any of their respective Affiliates to, acquire or agree to acquire by merging or consolidating with, or by purchasing a substantial portion of the assets of or equity in or otherwise making any investment in, or by any other manner, any Person or portion thereof, or otherwise acquire or agree to acquire or make any investment in any assets, if the entering into of a definitive agreement relating to or the consummation of such acquisition, merger, consolidation or investment would reasonably be expected to (i) materially delay the obtaining of, or materially increase the risk of not obtaining, any consent, approval, authorization, declaration, waiver, license, franchise, permit, certificate or order of any Governmental Authority necessary to consummate the Transactions or the expiration or termination of any applicable waiting period, (ii) materially increase the risk of any Governmental Authority entering an order prohibiting the consummation of the Transactions, or (iii) materially delay the consummation of the Transactions; provided, that, notwithstanding anything to the contrary herein, any delay that would not permit the Closing to occur on or before the Outside Date shall be deemed to be a material delay.

(f) In furtherance and not in limitation of the foregoing, each Party will use (and will cause their respective Affiliates to use) their respective reasonable best efforts to (i) promptly cooperate in all respects with each other in connection with any necessary, proper or advisable submissions, consents, approvals, filings, petitions, statements, licenses, permits, authorizations, declarations, notifications, registrations, submissions of information, applications, reports, waivers, exemptions, clearances, orders, confirmations and other documents with the FTC, the DOJ or any other Governmental Authority in connection with the Transactions and in connection with any investigation or other inquiry by or before the FTC, the DOJ or any other Governmental Authority relating to the Transactions or any proceeding initiated by a private Person, (ii) keep the other Party informed in all material respects and on a reasonably timely basis of any material written or verbal communication received by such Party from, or given by such Party to, the FTC, the DOJ or any other Governmental Authority (including by promptly sending the other Party a copy of all documents, information, correspondence or other communications) and of any material written or verbal communication received or given in connection with any proceeding by a private Person, in each case regarding any of the Transactions, (iii) subject to applicable Laws and the Confidentiality Agreement relating to the exchange of information, and to the extent reasonably practicable, promptly consult with the other Party with respect to information relating to the other Party and its Subsidiaries, as the case may be, that appears in any filing made with, or written materials submitted to, any third Person or the FTC, the DOJ or any other Governmental Authority in connection with the Transactions, other than “4(c) documents” or “4(d) documents,” as those terms are used in the rules and regulations under the HSR Act, (iv) to the extent reasonably practicable and permitted by the FTC, the DOJ or such other applicable Governmental Authority or other Person, promptly give the other Party the opportunity to attend and participate in such meetings and conferences (whether in person, by telephone or otherwise), and (v) subject to Section 5.03(d), promptly obtain all consents, registrations, waivers, exemptions, approvals, confirmations, clearances, permits, certificates, orders, and authorizations necessary, proper or advisable to be obtained from, or renewed with, the FTC, the DOJ and any other Governmental Authority. Prior to submitting any document or any information relating to the Transactions or the Parties (whether formally or informally, in draft form or final form) to the FTC, the DOJ or any other Governmental Authority, the applicable Party will send the other Party such document or information reasonably in advance of such submission, and such document or information will not be submitted to the FTC, the DOJ or any other Governmental Authority without the prior written consent of the other Party (such consent not to be unreasonably withheld, conditioned or delayed). Notwithstanding anything to the contrary in this Section 5.03, any Party may, as it deems advisable and necessary, reasonably designate any competitively sensitive information and material provided to the other Party under this Section 5.03 as “outside counsel only.” Such materials and the information contained therein will be given only to the outside legal counsel of the recipient and will not be disclosed by such outside counsel to employees, officers, or directors of the recipient, unless express written permission is obtained in advance from the source of the materials. The Parties will use reasonable efforts to share information protected from disclosure under the attorney-client privilege, work product doctrine, joint defense privilege or any other privilege pursuant to this Section 5.03 so as to preserve any applicable privilege.

5.04. Public Announcements. Unless and until an Adverse Recommendation Change has occurred, Buyer, on the one hand, and the Company, on the other hand, will consult (and will cause their respective Affiliates and, in the case of Buyer, the Equity Commitment Parties and the Investor Group Members and their respective Affiliates, to consult) with each other before issuing, and give each other the opportunity to review and comment upon, any press release or other public statements with respect to the Transactions, and will not (and will cause their respective Affiliates and, in the case of Buyer, the Equity Commitment Parties and the Investor Group Members and their respective Affiliates, not to) issue any such press release or make any such public statement without the prior written consent of the other Party (such consent not to be unreasonably withheld, conditioned or delayed), except (i) as may be required with respect to such Person by applicable Law, Judgment, court process or any obligations pursuant to any listing agreement with, or the rules and regulations of, any applicable securities exchange, securities quotation system or other listing authority; provided that Buyer or the Company, as applicable, will, and Buyer will cause the applicable Investor Group Member or Equity Commitment Party or Affiliates thereof to, use reasonable best efforts to give the other Party a reasonable opportunity to review and comment on such press release or public statement, and (ii) for any matters referred to in Section 5.02. The Parties agree that the initial press release to be issued with respect to the Transactions following execution of this Agreement will be in the form agreed to by the Parties prior to the execution of this Agreement (the “Announcement”). Notwithstanding the foregoing, this Section 5.04 will not apply to any press release or other public statement which (a) is consistent with the Announcement and the terms of this Agreement and does not contain any information relating to the Transactions that has not been previously announced or made public in accordance with the terms of this Agreement or (b) is made in the ordinary course of business and does not relate specifically to the signing of this Agreement or the Transactions. Notwithstanding the foregoing, Buyer and its Affiliates may, without consulting the Company, make communications to, and provide ordinary course communications regarding this Agreement and the Transactions, to the Debt Financing Sources Related Parties and existing or prospective general and limited partners, equity holders, members, managers, agents and investors of Buyer or any of its Affiliates, in each case, who are subject to customary confidentiality restrictions.

5.05. Access to Information; Confidentiality. Subject to applicable Law and any applicable Judgment, between the date of this Agreement and the earlier of the Effective Time and the valid termination of this Agreement pursuant to Section 7.01, upon reasonable notice, the Company will afford to Buyer and each of Buyer’s Representatives reasonable access during normal business hours to the Company’s and its Subsidiaries’ officers, employees, agents, properties, books, Contracts and records (other than any of the foregoing that relate to the negotiation and execution of this Agreement, or, except as expressly provided in Section 5.02, to any Takeover Proposal or any other transactions potentially competing with or alternative to the Merger Transactions or proposals from other parties relating to any competing or alternative transactions or relating to any deliberations of the Company Board regarding any Takeover Proposal or Adverse Recommendation Change or the deliberations of the Special Committee on any matter) and the Company will furnish promptly to Buyer and each of Buyer’s Representatives such information concerning its and its Subsidiaries’ business, personnel, assets, liabilities and properties as Buyer may reasonably request, in each case, in connection with the consummation of the Transactions (including for integration planning); provided that Buyer and its Representatives will conduct any such activities in such a manner as not to interfere unreasonably with the business or operations of the Company or any of its Subsidiaries and that Buyer and its Representatives will not conduct any invasive sampling of the environment at any property of the Company Group; provided further, however, that the Company will not be obligated to provide such access or information if the Company determines, in its reasonable judgment, that doing so could (i) violate applicable Law, an applicable Judgment or a Contract or obligation of confidentiality owing to a third party or (ii) jeopardize the protection of an attorney-client privilege, attorney work product protection or other legal privilege; provided that in the case of the foregoing clauses (i) and (ii), the Company will, and will cause its Affiliates to, use reasonable best efforts to find a suitable alternative to disclose information in such a way that such disclosure does not cause the loss or waiver of such privilege or violate any confidentiality obligations or Law, as applicable. All requests for information made pursuant to this Section 5.05 will be directed to the executive officer or other Person designated by the Company. Until the Effective Time, all information provided will be subject to the terms of the confidentiality agreement dated as of August 11, 2026, among the Company, PC (on behalf of itself and PAHC) and Mitsui (on behalf of itself and Mitsui USA) (the “Confidentiality Agreement”).

5.06. Indemnification and Insurance.

(a) For a period of six years from and after the Effective Time, Buyer will, and will cause the Surviving Corporation to, to the fullest extent permissible by applicable Law, (i) indemnify and hold harmless each current or former director or officer of the Company Group and each other Person who at the Effective Time is, or at any time prior to the Effective Time was, indemnified or entitled to be indemnified by the Company Group pursuant to the Company Charter Documents and the organizational documents of such Subsidiaries as in effect on the date of this Agreement or in any agreement in existence as of the date of this Agreement providing for indemnification or advancement of expenses between the Company or any of its Subsidiaries and such Person (each, an “Indemnitee” and, collectively, the “Indemnitees”) with respect to all claims, liabilities, losses, damages, judgments, fines, penalties, costs (including amounts paid in settlement or compromise) and expenses (including fees and expenses of legal counsel) in connection with any Action (whether civil, criminal, administrative or investigative), whenever asserted, based on or arising out of, in whole or in part, (A) the fact that an Indemnitee is or was a member, director, manager, officer, employee or agent of the Company or such Subsidiary or (B) acts or omissions by an Indemnitee in the Indemnitee’s capacity as a member, director, manager, officer, employee or agent of the Company or such Subsidiary or taken at the request of the Company or such Subsidiary (including in connection with serving at the request of the Company or such Subsidiary as a representative of another Person (including any employee benefit plan)), in each case under clause (A) or (B), at, or at any time prior to, the Effective Time (including any Action relating in whole or in part to the Transactions, the approval of this Agreement and the Transactions and the process undertaken in connection therewith or relating to the enforcement of this provision or any other indemnification or expense advancement right of any Indemnitee) and (ii) assume in the Merger without any further action all obligations of the Company and such Subsidiaries to the Indemnitees in respect of indemnification, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time as provided in the Company Charter Documents and the organizational documents of such Subsidiaries as in effect on the date of this Agreement or in any agreement in existence as of the date of this Agreement providing for indemnification or advancement of expenses between the Company Group and any Indemnitee.

(b) Without limiting the foregoing, for a period of six years from and after the Effective Time, to the extent permitted by applicable Law, (i) the Surviving Corporation’s Charter and Bylaws will contain, and the Surviving Corporation will cause the organizational documents of its Subsidiaries to contain, provisions no less favorable to the Indemnitees with respect to limitation of liabilities, indemnification and exculpation, in each case, of members, managers, directors and officers than are set forth as of the date of this Agreement in the Company Charter Documents and the organizational documents of such Subsidiaries as in effect on the date of this Agreement and (ii) to the fullest extent the Company would have been permitted by applicable Law, the Surviving Corporation will, without requiring a preliminary determination of entitlement to indemnification, advance any expenses (including fees and expenses of legal counsel) of any Indemnitee under this Section 5.06 (including in connection with enforcing the indemnity and other obligations referred to in this Section 5.06), subject to receipt from the Indemnitee to whom such expenses are advanced of an undertaking to repay such advances if it is ultimately determined in accordance with applicable Law that such Indemnitee is not entitled to indemnification.

(c) In the event any Action is brought against any Indemnitee and in which indemnification could be sought by such Indemnitee in any threatened or actual litigation, claim or proceeding relating to any acts or omissions covered under this Section 5.06 (each, a “Claim”), (i) neither the Surviving Corporation nor any of its Subsidiaries will settle, compromise or consent to the entry of any judgment in any such Claim, unless (x) such settlement, compromise or consent relates only to monetary damages payable by Persons other than such Indemnitee, does not include any admission or finding of wrongdoing on the part of such Indemnitee and includes an unconditional release of such Indemnitee from all liability arising out of such Claim or (y) such Indemnitee otherwise consents in writing to such settlement, compromise or consent, and (ii) each of the Surviving Corporation, its Subsidiaries and the Indemnitees will cooperate in the defense of any Claim and will provide access to properties and individuals as reasonably requested and furnish or cause to be furnished records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewith.

(d) Prior to the Effective Time, the Company will purchase and bind a six-year prepaid “tail policy” on terms and conditions providing at least substantially equivalent benefits as the current policies of directors’ and officers’ liability insurance maintained by the Company Group with respect to matters existing or occurring prior to the Effective Time, covering without limitation the Transactions (the “D&O Tail Policy”), or, if substantially equivalent insurance coverage is unavailable, the best available coverage. The D&O Tail Policy will provide by its terms that it will survive the Merger for not less than six years for the benefit of the Company, its Subsidiaries, the Company’s and any of its Subsidiary’s past and present directors or officers that are insured under the Company’s current directors’ and officers’ liability insurance policy in effect as of the date hereof. The Surviving Corporation will maintain the D&O Tail Policy in full force and effect and continue to honor the obligations thereunder for a period of six years after the Effective Time or, if such policies are terminated or canceled, obtain (subject to the limitations set forth in the next sentence) an alternative D&O Tail Policy on substantially similar terms as set forth in this Section 5.06(d). Neither the Company (prior to the Effective Time) nor the Surviving Corporation (after the Effective Time) will be required to pay an annual premium for the D&O Tail Policy in excess of 300% (the “Maximum Amount”) of the last annual premium paid prior to the date of this Agreement (it being understood and agreed that in the event the cost of such D&O Tail Policy exceeds the Maximum Amount, in the aggregate, the Company will remain obligated to provide as much comparable insurance as possible for an annual premium equal to the Maximum Amount). The Company and Indemnitees may be required to make reasonable application and provide reasonable and customary representations and warranties to applicable insurance carriers for the purpose of obtaining such D&O Tail Policy.

(e) The provisions of this Section 5.06 are (i) intended to be for the benefit of, and are enforceable by, each Indemnitee, his or her heirs and his or her representatives and (ii) in addition to, and not in substitution for, any other rights to indemnification or contribution that any such individual may have under the Company Charter Documents, under the organizational documents of such Subsidiaries as in effect on the date of this Agreement or by contract or otherwise. The obligations of Buyer, the Company and the Surviving Corporation under this Section 5.06 will not be terminated or modified in such a manner as to adversely affect the rights of any Indemnitee to whom this Section 5.06 applies unless (x) such termination or modification is required by applicable Law or (y) the affected Indemnitee has consented in writing to such termination or modification (it being expressly agreed that the Indemnitees to whom this Section 5.06 applies are third-party beneficiaries of this Section 5.06).

(f) In the event that the Surviving Corporation or any of its successors or assigns (i) consolidates with or merges into any other Person and is not the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, proper provision will be made so that the successors and assigns of the Surviving Corporation assume all of the obligations thereof set forth in this Section 5.06.

(g) Nothing in this Agreement is intended to, will be construed to or will release, waive or impair any rights to directors’ and officers’ insurance claims under any policy that is or has been in existence with respect to the Company or any of its Subsidiaries for any of their respective directors, officers or other employees, it being understood and agreed that the indemnification provided for in this Section 5.06 is not prior to or in substitution for any such claims under such policies.

5.07. Employee Matters.

(a) For the period beginning at the Effective Time and for 12 months thereafter (or, if shorter, until the date of employment termination of the relevant Continuing Employee (such period, the “Comparability Period”)), the Company will, and will cause its Subsidiaries to, provide to each Person who is an employee of the Company or any of its Subsidiaries immediately prior to the Effective Time (each, a “Continuing Employee”), (i) a base salary or wage rate and target short-term incentive opportunities (excluding retention or change in control or equity incentives (including, for the avoidance of doubt, any equity incentives provided under the Company KSOP)) that are no less favorable, in each case, than those in effect immediately prior to the Effective Time, (ii) opportunities for annual discretionary bonuses based on similar factors and criteria that were used to determine discretionary bonuses in the previous year and (iii) employee benefit plans and arrangements sponsored or maintained by a member of the Company Group (excluding any retiree welfare benefits, nonqualified deferred compensation, long-term or equity incentive opportunities (including, for the avoidance of doubt, any equity incentives provided under the Company KSOP) and defined benefit pension plans (collectively, “Excluded Benefits”)) that are substantially comparable in the aggregate to those provided to such Continuing Employee immediately prior to the Effective Time, provided that, notwithstanding anything to the contrary in this Section 5.07, the Company may modify the compensation otherwise required under this Section 5.07 for any Continuing Employee whom the Company determines, in its reasonable discretion, to be underperforming. For the Comparability Period, the Company may, and may cause its Subsidiaries to, provide to certain Continuing Employees, as determined on a case-by-case basis in the sole discretion of Buyer, long-term incentive opportunities (which may be provided in the form of cash awards, phantom equity awards or a combination thereof as determined in the discretion of Buyer) that are no less favorable, in the aggregate, than the long-term incentive opportunities provided to such Continuing Employee as of immediately prior to the Effective Time.

(b) With respect to all employee benefit plans and arrangements sponsored or maintained by a member of the Company Group in which Continuing Employees are eligible to participate from and after the Effective Time, including any “employee benefit plan” (as defined in Section 3(3) of ERISA) (but excluding any plans providing for Excluded Benefits), for purposes of determining eligibility to participate, level of benefits, vesting and benefit accruals, the Company Group will continue to recognize each Continuing Employee’s service with the Company Group; provided, however, that such service need not be recognized to the extent that such recognition would result in any duplication of benefits for the same period of service or to the extent it was not credited for such purposes under the analogous Company Plan prior to the Effective Time.

(c) With respect to any Company Plan providing for health and welfare benefits in which Continuing Employees are eligible to participate from and after the Effective Time, the Company Group shall, as applicable (i) waive, or use reasonable best efforts to cause insurance carriers to waive, all limitations as to preexisting conditions, exclusions and waiting periods with respect to participation and coverage requirements applicable to such employees (and their covered dependents) but, unless otherwise required by applicable Law, only to the same extent waived under such Company Plan prior to the Effective Time and (ii) give effect, or use reasonable best efforts to cause insurance carriers to give effect, in determining any deductible and maximum out-of-pocket limitations, to amounts paid by such employees (and their covered dependents) with respect to such Company Plan, only to the same extent recognized by the Company or the applicable Subsidiary prior to the Effective Time. Such credited expenses shall also count toward any annual or lifetime limits, treatment or visit limits or similar limitations that apply under the terms of the applicable plan.

(d) The provisions of this Section 5.07 are solely for the benefit of the Parties, and no provision of this Section 5.07 is intended to, or will constitute the establishment or adoption of, or an amendment to, any employee benefit plan for purposes of ERISA or otherwise and, except as otherwise explicitly provided for in this Agreement, no current or former employee or any other individual associated therewith will be regarded for any purpose as a third-party beneficiary of this Agreement or have the right to enforce the provisions hereof.

5.08. Notification of Certain Matters; Stockholder Litigation.

(a) Except in connection with an Action subject to Section 2.05(b) (which will be governed by Section 2.05(b)), the Company will promptly notify Buyer of any Action brought by stockholders of the Company or other Persons against the Company Group or any of its directors, officers or its Representatives arising out of or relating to this Agreement or the Transactions (the “Transaction Litigation”), and will keep Buyer reasonably informed with respect to the status thereof. Without limiting the preceding sentence, the Company will give Buyer the opportunity to participate in the defense, resolution and settlement of any Transaction Litigation against the Company or the Company’s directors relating to this Agreement or the Transactions (including by allowing for advanced review and comment on all filings or responses to be made in connection therewith and reasonable advance review of materials proposed to be delivered in connection with any discovery or document production), and the Company will in good faith give consideration to Buyer’s advice with respect to such Transaction Litigation; provided that the Company will retain all decision making power and authority with respect to such Transaction Litigation. Notwithstanding the immediately preceding sentence, the Company will not settle or resolve any Transaction Litigation without Buyer’s prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed. Disclosure of information pursuant to this Section 5.08 will be subject to the terms and conditions of Section 5.05, including regarding attorney-client privilege, attorney work product protection or other legal privilege.

(b) The Company will not, without the prior written consent of an Indemnitee, settle any Transaction Litigation against such Indemnitee unless the settlement relates only to monetary damages payable by Persons other than such Indemnitee, does not include any admission or finding of wrongdoing on the part of such Indemnitee and includes an unconditional release of such Indemnitee from liability arising out of such Transaction Litigation.

5.09. Buyer Adoption of Agreement. Concurrently with the execution and delivery of this Agreement, Buyer will deliver to the Company the unanimous written consent of the stockholders of Buyer adopting this Agreement and approving the Transactions in accordance with the DGCL, with effect immediately following the execution of this Agreement.

5.10. Stock Exchange De-listing. Buyer and the Company will cooperate and use their respective reasonable best efforts to take, or cause to be taken, and do or cause to be done all things reasonably necessary, proper or advisable under applicable Law and the rules and policies of the NYSE to enable the delisting by the Company of the shares of Company Common Stock from the NYSE and the deregistration of the Company Common Stock under the Exchange Act as promptly as practicable after the Effective Time. Without limiting the foregoing, Buyer will be responsible for preparing and filing, or causing the NYSE or the Surviving Corporation to prepare and file, (a) a Form 25 pursuant to Rule 12d2-2 under the Exchange Act with respect to the delisting of the Company Common Stock from the NYSE and (b) a Form 15 pursuant to Rules 12g-4 and 12h-3 under the Exchange Act with respect to the deregistration of the Company Common Stock, in each case as promptly as practicable, and in any event within ten Business Days, after the Effective Time.

5.11. Section 16. The Company and the Company Board (or a duly formed committee thereof consisting of non-employee directors (as such term is defined for the purposes of Rule 16b-3 promulgated under the Exchange Act)), will, to the extent necessary, take appropriate action, prior to or as of the Effective Time, to approve, for purposes of Section 16(b) of the Exchange Act, the disposition and cancelation or deemed disposition and cancelation of shares of Company Common Stock and Equity-Based Awards in the Merger by applicable individuals and to cause such dispositions or cancelations to be exempt under Rule 16b-3 promulgated under the Exchange Act.

5.12. Preparation of the Proxy Statement.

(a) The Company will prepare and file with the SEC, as promptly as practicable after the date of this Agreement, but in any event within 30 Business Days after the date of this Agreement, a Proxy Statement in preliminary form relating to the Company Stockholders Meeting. Except under the circumstances expressly permitted by Section 5.02, the Proxy Statement will include the Company Recommendation and the Special Committee Recommendation. The Company and Buyer will cooperate to, concurrently with the preparation and filing of the Proxy Statement, jointly prepare and file with the SEC a Rule 13E-3 Transaction Statement on Schedule 13E-3 (such transaction statement, including any amendment or supplement thereto, the “Schedule 13E-3”) relating to the Transactions.

(b) The Company will use reasonable best efforts to cause the Proxy Statement to comply as to form and substance with the provisions of the Exchange Act in all material respects. The Company and Buyer will use reasonable best efforts to cause, as to themselves and their Affiliates, the Schedule 13E-3 to comply as to form and substance with the provisions of the Exchange Act in all material respects. The Company and Buyer will furnish all information required by the Exchange Act or other applicable Law concerning it and its Affiliates, respectively, as the other Party may reasonably request or as customarily included in a Proxy Statement or a Schedule 13E-3 prepared in connection with a transaction of the type contemplated by this Agreement, and the Company and Buyer will ensure that none of the information supplied by it or any of its Affiliates or their respective Representatives for inclusion or incorporation by reference in the Proxy Statement or the Schedule 13E-3 will, at the date of mailing to stockholders of the Company, at the time of the Company Stockholders Meeting or at the time of filing with the SEC (as applicable), contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.

(c) If at any time prior to the Company Stockholders Meeting, any information relating to the Company and Buyer, or any of their respective Affiliates or its or their respective Representatives, should be discovered by a Party, which information should be set forth in an amendment or supplement to the Proxy Statement or the Schedule 13E-3, so that either the Proxy Statement or the Schedule 13E-3, as applicable, would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they are made, not misleading, the Party that discovers such information will as promptly as practicable following such discovery notify the other Party or Parties (as the case may be) and after such notification (A) the Company will, as and to the extent required by applicable Law, promptly prepare an amendment or supplement to the Proxy Statement, (B) the Company and Buyer will, as and to the extent required by applicable Law, promptly prepare an amendment or supplement to the Schedule 13E-3, and (C) the Company will cause the Proxy Statement or Schedule 13E-3 as so amended or supplemented to be filed with the SEC and, if required by applicable Law, to be disseminated to its stockholders.

(d) The Company will (i) provide Buyer, its Affiliates and their respective Representatives with a reasonable opportunity to review and comment on drafts of the Proxy Statement and other documents and communications related to the Company Stockholders Meeting prior to filing, furnishing or delivering such documents with or such communications to the applicable Governmental Authority and dissemination of such documents or communications to the Company’s stockholders and (ii) consider in good faith any comments thereto reasonably proposed by Buyer, its Affiliates and their respective Representatives, and the Company agrees that all information relating to the Investor Group Members, Buyer, their Subsidiaries and its and their respective Representatives included in the Proxy Statement will be in form and content reasonably satisfactory to Buyer. The Company and Buyer will (1) provide each other with a reasonable opportunity to review and comment on drafts of the Schedule 13E-3 prior to filing it with the SEC and (2) consider in good faith any comments thereto reasonably proposed by the other Party and its Representatives, and each of the Company and Buyer agree that all information relating to the other Party, its Affiliates and its and their respective Representatives included in the Schedule 13E-3 will be in form and content satisfactory to such other Party.

(e) Each Party will promptly notify each other Party of the receipt of any comments from the SEC with respect to the Proxy Statement or the Schedule 13E-3 and of any request by the SEC for any amendment or supplement to the Proxy Statement or the Schedule 13E-3 or for additional information and will as promptly as reasonably possible following receipt thereof provide the other Party with copies of all material written correspondence between itself or any of its Representatives and the SEC with respect to the Proxy Statement or the Schedule 13E–3 (or where the correspondence is not written, a reasonably detailed description thereof) and provide the other Party and its Representatives a reasonable opportunity to participate in any discussions or meetings with the SEC (or portions of any such discussions or meetings that relate to the Proxy Statement or the Schedule 13E-3) unless pursuant to a telephone call initiated by the SEC or with respect to procedural or administrative matters. The Company and Buyer (as the case may be) will, subject to the requirements of Section 5.12(d), promptly provide responses to the SEC with respect to any comments received on the Proxy Statement or the Schedule 13E-3 by the SEC and any requests by the SEC for any amendment or supplement to the Proxy Statement or the Schedule 13E-3 or for additional information. The Company will cause the definitive Proxy Statement and the Schedule 13E-3 to be mailed as promptly as reasonably possible after the date the SEC staff confirms that the SEC does not intend to review the preliminary Proxy Statement or advises that it has no further comments thereon or that the Company may commence mailing of the Proxy Statement.

(f) If the Company determines that it is required to file any document other than the Proxy Statement and the Schedule 13E-3 with the SEC in connection with the Merger pursuant to applicable Law (such document, as amended or supplemented, an “Other Required Company Filing”), then the Company will use its reasonable best efforts to promptly prepare and file such Other Required Company Filing with the SEC. The Company will use its reasonable best efforts to cause any Other Required Company Filing to comply as to form and substance with the provisions of the Exchange Act in all material respects. Except in connection with an Adverse Recommendation Change, the Company may not file any Other Required Company Filing with the SEC without first providing Buyer, its Affiliates and their respective Representatives a reasonable opportunity to review and comment thereon, and the Company will give good faith consideration to all reasonable additions, deletions or changes suggested by Buyer, its Affiliates or their respective Representatives.

(g) If Buyer determines that it or any of its Affiliates is required to file any document with the SEC other than the Schedule 13E-3 in connection with the Merger or the Company Stockholders Meeting pursuant to applicable Law (an “Other Required Buyer Filing”), then Buyer will, and will cause its applicable Affiliates to, use its or their respective reasonable best efforts to promptly prepare and file such Other Required Buyer Filing with the SEC. Buyer will cause any Other Required Buyer Filing to comply as to form and substance with the provisions of the Exchange Act in all material respects. Buyer may not file any Other Required Buyer Filing with the SEC without first providing the Company and its Representatives a reasonable opportunity to review and comment thereon, and Buyer will give good faith consideration to all reasonable additions, deletions or changes suggested by the Company or its Representatives.

5.13. Company Stockholders Meeting.

(a) The Company will take all action necessary in accordance with applicable Law and the Company Charter Documents to establish a record date for (including conducting, as promptly as practicable after the date hereof and in consultation with Buyer, one or more “broker searches” in accordance with Rule 14a-13 of the Exchange Act to enable such record date to be so set), duly call, give notice of, convene and hold a meeting of the Company Stockholders (including any adjournment, postponement or other delay thereof, the “Company Stockholders Meeting”) as promptly as reasonably practicable following the mailing of the Proxy Statement and the Schedule 13E-3 to the Company Stockholders for the purpose of, among other things, (i) seeking the Company Stockholder Approval and (ii) in accordance with Regulation 14A under the Exchange Act, seeking advisory approval of a proposal in connection with a non-binding, advisory vote to approve certain compensation that may become payable to the Company’s named executive officers in connection with the consummation of the Merger. Notwithstanding anything to the contrary in this Agreement, and regardless of whether the Special Committee or the Company Board has made, or publicly proposed to make, an Adverse Recommendation Change in accordance with Section 5.02, the Company’s obligation to duly call, give notice of, convene and hold the Company Stockholders Meeting, and to submit this Agreement to a vote of the Company Stockholders thereat, will continue in full force and effect and will not be limited, altered, suspended or otherwise affected by any Adverse Recommendation Change, any Takeover Proposal or Superior Proposal, or any determination, communication or other action by the Special Committee or the Company Board with respect thereto. Unless and until this Agreement is validly terminated pursuant to Section 7.01 (including, for the avoidance of doubt, pursuant to Section 7.01(c)(ii) (Adverse Recommendation Change) or Section 7.01(d)(ii) (Superior Proposal)), the Company will (A) submit this Agreement for adoption by a vote of the Company Stockholders at the Company Stockholders Meeting and (B) use reasonable best efforts to solicit proxies to obtain the Company Stockholder Approval and the vote of the Company Stockholders required by applicable Law to effect the Merger. The Company will cooperate with and keep Buyer informed on a reasonably current basis regarding its solicitation efforts and voting results following dissemination of the definitive Proxy Statement. Without the prior written consent of Buyer (such consent not to be unreasonably withheld, conditioned or delayed), the adoption of this Agreement, a vote on any proposal to adjourn the meeting in accordance with Section 5.13(b) and a non-binding, advisory vote to approve certain compensation that may become payable to the Company’s named executive officers in connection with the consummation of the Merger will be the only matters (other than matters of procedure and matters required by applicable Law to be voted upon by the Company Stockholders in connection with the Transactions) that the Company will propose to be acted upon at the Company Stockholders Meeting.

(b) Notwithstanding anything to the contrary in this Agreement, the Company will be permitted to postpone or adjourn the Company Stockholders Meeting if (i) there are holders of insufficient shares of the Company Common Stock present or represented by proxy at the Company Stockholders Meeting to constitute a quorum at the Company Stockholders Meeting, (ii) the Company is required to postpone or adjourn the Company Stockholders Meeting by applicable Law, order or a request from the SEC, (iii) to ensure that any supplement or amendment to the Proxy Statement or Schedule 13E-3 required by applicable Law is provided to Company Stockholders with a reasonable amount of time in advance of the Company Stockholders Meeting, (iv) Buyer has so consented in writing, or (v) to allow additional time for the solicitation of votes in order to obtain the Company Stockholder Approval. If requested by Buyer on no more than two separate occasions in order to allow additional time for the solicitation of votes in order to obtain the Company Stockholder Approval, the Company will postpone or adjourn the meeting for up to ten Business Days. Without the prior written consent of Buyer (which will not be unreasonably withheld, conditioned or delayed), the Company Stockholders Meeting will not be postponed or adjourned by more than ten Business Days in the aggregate pursuant to clauses (i), (iii) and (v) above, and, except pursuant to clauses (ii) or (iv) above, in no event will the Company Stockholders Meeting, as postponed or adjourned, be held later than three Business Days prior to the Outside Date. In no event will the record date of the Company Stockholders Meeting be changed without Buyer’s prior written consent (such consent not to be unreasonably withheld, conditioned or delayed), unless required by applicable Law.

5.14. Financing.

(a) Prior to the Closing Date, the Company Group will use its reasonable best efforts to provide, and will cause its Representatives to use reasonable best efforts to provide (in each case, subject to Section 5.14(f) and Section 5.14(g), at Buyer’s sole expense), to Buyer and its Affiliates the following cooperation to the extent reasonably requested by Buyer to assist Buyer with the arrangement of the Debt Financing, and that is customary in connection with efforts to obtain financing of the type of the Debt Financing (including any offering or private placement of debt securities pursuant to Rule 144A under the Securities Act):

(i) (x) furnish Buyer with the Required Financial Information and other historical financial information regarding the Company Group as may be reasonably requested by Buyer to the extent such information is customarily included in marketing materials or offering documents for financings similar to the financings contemplated by the Debt Commitment Letter, (y) inform Buyer if the chief executive officer, chief financial officer, treasurer, controller or comparable officer of the Company or any member of the audit committee of the Company Board has knowledge of any facts as a result of which a restatement of any financial statements (or portion thereof) comprising a portion of the Required Financial Information is reasonably likely or under consideration in order for such financial statements (or portion thereof) to comply with GAAP, and (z) provide financial information and timely assistance necessary for Buyer to prepare pro forma financial information and pro forma financial statements of the type that would be required by Regulation S-X if the offering of debt securities contemplated by the Debt Commitment Letter were conducted as a registered offering and reasonably requested by Buyer to be included in any marketing materials or offering documents or of the type required by or referred to in the Debt Commitment Letter; provided that, for the avoidance of doubt, the Company Group will not be required to actually (A) prepare any such pro forma financial statements, (B) prepare projections or other forward-looking information covering any period after the Closing, or (C) provide any information relating to (I) the proposed aggregate amount of the Financing, together with assumed interest rates, dividends (if any) or any fees and expenses relating to the incurrence of the Financing, (II) any post-Closing or pro forma cost savings, synergies, capitalization, ownership or other pro forma adjustments desired to be incorporated into any information used in connection with the Debt Financing, or (III) any financial information related to Buyer, its Affiliates (other than the Company and its Subsidiaries) or any adjustments that are not directly related to the Merger of the Company with Buyer;

(ii) reasonably cooperate with the due diligence of any Debt Financing Source, including by taking reasonable actions necessary to permit the Debt Financing Sources to evaluate the Company’s and its Subsidiaries’ current assets, cash management and accounting systems and equipment for the purpose of establishing collateral arrangements and assisting with other collateral audits and collateral appraisals;

(iii) assist in preparation for and cause management of an appropriate level to participate in a reasonable number of meetings and calls (that are requested in advance with or by the parties acting as lead arrangers or agents for, and prospective lenders and purchasers of, the Debt Financing), presentations, roadshows, due diligence sessions (including accounting due diligence sessions), drafting sessions and sessions with rating agencies, in each case, upon reasonable advance notice from, and as reasonably requested by, Buyer and at reasonable times and locations (which may be virtual) to be mutually agreed and any telephonic meetings, roadshows, drafting sessions, due diligence sessions and sessions with rating agencies will be reasonable in number, scheduled on reasonable advance notice, limited to management of an appropriate level and conducted in a manner that does not unreasonably interfere with the business or operations of the Company Group), and assisting Buyer and its Affiliates in obtaining ratings in connection with the Debt Financing;

(iv) assist Buyer with the timely preparation of (A) materials for rating agency presentations and (B) bank information memoranda, lender presentations, investor presentations, offering documents, prospectuses, roadshows, rating agency presentations and similar documents customary or reasonably required for use in connection with the Debt Financing, including reviewing and commenting on Buyer’s draft of a business description to be included in marketing materials or offering documents, executing certificates of the chief financial officer (or other comparable officer) of the Company Group with respect to financial information (excluding pro forma financial information) included in the marketing materials, in each case to the extent reasonably requested by Buyer;

(v) request and facilitate its independent auditors to (A) provide, consistent with customary practice and applicable auditor policies, (x) reasonable assistance to Buyer and its Affiliates with respect to the historical financial information of the Company Group, including to the extent such historical financial information is used in connection with Buyer’s and its Affiliates’ preparation of pro forma financial statements and information, and (y) customary auditors’ consents (including consents of accountants for use of their reports in any material relating to the Debt Financing) and customary comfort letters (including “negative assurance” comfort and change period comfort, in each case, solely to the extent customary and available under applicable professional standards and the applicable independent auditors’ customary policies for the applicable type, timing and structure of the Debt Financing) with respect to financial information relating to the Company Group included in any offering memorandum used in connection with the Debt Financing and delivered upon “pricing” and “closing” of the Debt Financing as reasonably requested by Buyer or the Debt Financing Sources; provided that no comfort letter or certificate will be required with respect to Buyer-prepared pro forma information, synergies or financing terms and (B) attend accounting due diligence sessions;

(vi) assist in the preparation of and execute and deliver as of (but not prior to) the Closing any guarantee, pledge and security documents, mortgages, supplemental indentures, currency or interest rate hedging arrangements, other definitive financing documents, or other certificates or documents as may be reasonably requested by Buyer, its Affiliates or the Debt Financing Sources, certificates of the chief financial officer (or other executive officer) of the Company with respect to solvency matters in the form set forth as an exhibit to the Debt Commitment Letter and otherwise reasonably facilitate the pledging of collateral and the granting of security interests in respect of the Debt Financing (including reasonable best efforts to deliver any original stock certificates and related powers, any original promissory notes and related powers, or other certificates intended to constitute collateral as contemplated by the Debt Commitment Letter) (it being understood that such documents will not take effect prior to the Effective Time and will be contingent on the Closing occurring);

(vii) provide customary authorization letters to the extent reasonably requested by Debt Financing Sources authorizing the distribution of information to prospective lenders or investors, subject to customary confidentiality provisions (which may include customary “click through” confidentiality arrangements or other confidentiality arrangements customary for syndication and arrangement procedures), and containing a customary representation to the Debt Financing Sources as contemplated by the Debt Commitment Letter, including that the public side versions of such documents do not include material non-public information about the Company Group or their securities and as to the accuracy of the information contained in the disclosure and marketing materials related to the Debt Financing;

(viii) promptly and in any event at least four Business Days prior to the Closing Date, provide Buyer and Debt Financing Sources with all documentation and other information about the Company Group that is required in connection with Debt Financing under applicable “know your customer” and anti-money laundering rules and regulations including the USA PATRIOT Act and a beneficial ownership certificate for any entity that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation (31 C.F.R. § 1010.230), in each case to the extent reasonably requested in writing at least nine days in advance of the Closing;

(ix) assist in the taking of customary corporate and other similar actions, subject to and contingent upon the occurrence of the Closing, reasonably necessary to permit the consummation of the Debt Financing on the Closing Date; and

(x) reasonably cooperate with the outside and internal counsel of Buyer in connection with providing back-up certificates and factual information related to any legal opinion that such counsel may be required to deliver in connection with any Debt Financing.

(b) Prior to the Closing Date, the Company Group will use its reasonable best efforts to provide, and will cause its Representatives to use reasonable best efforts to provide (in each case, subject to Section 5.14(f) and Section 5.14(g), at Buyer’s sole expense), to Buyer and its Affiliates the following cooperation to the extent reasonably requested by Buyer to assist Buyer with the arrangement of any Company Credit Agreement Amendment and borrowings under the Company Credit Agreement on the Closing Date, and that is customary in connection with efforts to obtain financing of the type provided under the Company Credit Agreement:

(i) deliver to the agent under the Company Credit Agreement, at Buyer’s reasonable request and within the time periods required thereunder, a borrowing notice (which may be conditioned upon the occurrence of the Closing and may be revoked or the requested borrowing date extended) requesting a borrowing on the Closing Date of loans under the Company Credit Agreement in the amounts and of the types specified by Buyer, and take such other actions within the Company’s control as are reasonably requested by Buyer to satisfy, as of the Closing Date, any conditions to such borrowing that are to be satisfied by the Company;

(ii) assist in the preparation of and execute and deliver as of (but not prior to) the Closing, certificates or documents as may be reasonably requested by Buyer, its Affiliates or the Credit Agreement Financing Sources, including, without limitation, a borrowing base certificate (it being understood that such documents will not take effect prior to the Effective Time and will be contingent on the Closing occurring);

(iii) assist in the taking of customary corporate and other similar actions, subject to and contingent upon the occurrence of the Closing, reasonably necessary to permit the consummation of commitment increase and borrowings under the Company Credit Agreement on the Closing Date;

(iv) reasonably cooperate with the outside and internal counsel of Buyer in connection with providing back-up certificates and factual information related to any legal opinion that such counsel may be required to deliver in connection with any Company Credit Agreement Amendment or any borrowings under the Company Credit Agreement; and

(v) at Buyer’s reasonable request, facilitate discussions and negotiations between Buyer and the Credit Agreement Financing Sources regarding any further amendments, consents, waivers or commitment increases relating to the borrowing capacity available thereunder on the Closing Date, including by making appropriate officers of the Company available for such discussions and, to the extent agreed by the Credit Agreement Financing Sources and reasonably requested by Buyer, executing any such amendment, consent or waiver; provided that the effectiveness of any such amendment, consent, waiver or commitment increase (other than any provisions that impose no cost or obligation on the Company Group that is not paid directly by or reimbursed by the Buyer pursuant to Section 5.14(f) or Section 5.14(g)) will be conditioned upon the occurrence of the Closing.

(c) The Company hereby consents to the use of its and its Subsidiaries’ logos in connection with the Debt Financing solely in connection with a description of the Company Group or the Transactions; provided that such logos are used solely in a manner that is accurate and is not intended to, nor reasonably likely to, harm or disparage the Company or the Company’s Subsidiaries and that complies with the Company’s usage requirements and guidelines to the extent made available to Buyer prior to such use.

(d) Notwithstanding anything in this Section 5.14 to the contrary, nothing in Section 5.14(a) or Section 5.14(b) will require any such cooperation or assistance to the extent that it could result in the Company or any of its Subsidiaries being required to:

(i) pledge any assets as collateral or enter into any definitive loan documents or agreements related to the Debt Financing that is not contingent upon the Closing or that would be effective prior to the Effective Time;

(ii) agree to pay any fee, bear any cost or expense, incur any other liability or give any indemnities to any third party or otherwise commit to take any similar action in connection with the Debt Financing or the Company Credit Agreement (including any Company Credit Agreement Amendment) prior to the Closing, in each case, that has not been or will not be reimbursed or indemnified by Buyer to the extent required pursuant to Section 5.14(f) or Section 5.14(g);

(iii) take any actions to the extent such actions would (A) unreasonably interfere with the ongoing business or operations of the Company or any of its Subsidiaries, (B) subject any director, manager, officer or employee of the Company or any of its Affiliates to any actual or potential personal liability with respect to matters related to the Debt Financing, (C) conflict with, or result in any violation or breach of, or default (with or without notice, or lapse of time or both) under, the organizational documents of the Company or any of its Subsidiaries, any applicable Law or Judgment or rules or regulations of any applicable securities exchange, quotation system or other listing authority or any material Contract to which the Company or any of its Subsidiaries is a party or by which any of their respective properties or assets is bound, (D) require any such entity to change any fiscal period, or (E) cause (I) any closing condition set forth in Article VI of this Agreement to fail to be satisfied or (II) any other breach of this Agreement;

(iv) waive or amend any terms of this Agreement;

(v) commit to take any action under any certificate, document or instrument or enter into any definitive agreement that is not contingent upon the Closing (other than representation letters and authorization letters referred to above and the documentation referred to in Section 5.14(a)(iv) and Section 5.14(a)(viii));

(vi) provide access to or disclose information that the Company determines, in its reasonable judgment, would jeopardize any attorney-client privilege, attorney work product or other legal privilege of, or conflict with any confidentiality requirements owing to a third party applicable to, the Company or its Affiliates; provided that the Company will, and will cause its Affiliates to, use reasonable best efforts to find a suitable alternative to disclose information in such a way that such disclosure does not cause loss or waiver of such privilege or violate any such confidentiality obligations as applicable;

(vii) cause any representation, warranty, covenant, agreement or obligation in this Agreement to be breached by the Company or any of its Subsidiaries;

(viii) cause the Company or any of its Subsidiaries, prior to the Closing, to be an issuer or other obligor with respect to the Debt Financing;

(ix) cause any director, manager or equivalent, or any officer or employee of the Company or any of its Subsidiaries to pass resolutions to approve the Debt Financing or authorize the creation of any agreements, documents or actions in connection therewith, or to execute or deliver any certificate in connection with the Debt Financing (other than any director, manager or equivalent, or officer or employee of the Company or any of its Subsidiaries who will continue in such a position following the Closing and the passing of such resolutions), in each case, that are not contingent on the Closing or would be effective prior to the Closing (other than representation letters and authorization letters referred to above and documentation referred to in Section 5.14(a)(iv)); or

(x) deliver any legal opinion.

(e) The Company Group will use its reasonable best efforts to periodically update any Required Financial Information provided to Buyer and the Debt Financing Sources as may be necessary so that such Required Financial Information (i) is Compliant and (ii) meets the applicable requirements set forth in the definition of “Required Financial Information;” provided that (x) the Company shall not be required to update, supplement, or provide Required Financial Information more frequently than would be required to maintain compliance with the periodic reporting requirements of the Exchange Act, except to the extent expressly required pursuant to clause (z) below, (y) the Company’s obligations under this Section 5.14(e) shall be subject to the limitations set forth in Section 5.14(d) and the Excluded Information carve-outs set forth in the definition of “Required Financial Information,” and (z) upon Buyer’s reasonable written request, the Company Group shall use its reasonable best efforts to provide customary recent-development or “flash” financial information, which may be provided in the form of a reasonable range or estimate, to the extent reasonably necessary so that the Required Financial Information is Compliant for purposes of a customary offering memorandum for private placements of non-convertible high-yield debt securities pursuant to Rule 144A promulgated under the Securities Act of the type contemplated by the Debt Commitment Letter; provided, further, that the Company Group shall have no obligation to provide any such information unless such information (A) is customarily included in such an offering memorandum for comparable debt securities, (B) is reasonably available from the Company Group’s ordinary-course books and records without undue burden, (C) does not constitute Excluded Information, (D) is consistent with the Company’s disclosure controls and procedures, the Company’s internal control over financial reporting, applicable auditor policies and applicable Law, including applicable securities Laws, and (E) if such information constitutes material non-public information regarding the Company Group or their securities, is included in any marketing materials or offering documents related to the Debt Financing only after consultation with the Company and subject to such filing on Form 8-K or other public disclosure or cleansing, if any, as the Company determines in good faith is required or appropriate. For the avoidance of doubt, nothing in this Section 5.14(e) shall limit the protections afforded to the Company Group under Sections 5.14(d), 5.14(h) or 5.14(l) or otherwise expand Buyer’s rights under Article VI or Article VII.

(f) Buyer will (i) on the Closing Date or upon the earlier termination of this Agreement pursuant to its terms, reimburse the Company for all reasonable and documented out-of-pocket costs and expenses (including reasonable and documented out-of-pocket attorneys’ fees) incurred by the Company or any of its Subsidiaries and their respective Representatives in connection with the Financing, including the cooperation of the Company Group and Representatives contemplated by this Section 5.14; provided that such reimbursement will not include, and Buyer will not be responsible for, (x) any ordinary course amounts payable to existing employees of, or consultants to, the Company, its Subsidiaries or any of their respective Affiliates and (y) costs and expenses incurred in connection with the preparation of any historical financial statements or other financial information prepared in the ordinary course of business and (ii) indemnify and hold harmless the Company, its Subsidiaries and their respective Representatives from and against any and all losses, damages, claims, costs or expenses suffered or incurred by any of them in connection with their cooperation in the arrangement of the Financing or pursuant to Section 5.14(b) and the provision of any information used in connection therewith (other than information provided by the Company Group), in each case, other than to the extent any of the foregoing was suffered or incurred as a result of the bad faith, gross negligence or willful misconduct of, or material breach of this Agreement by, the Company, its Subsidiaries or their Representatives.

(g) Notwithstanding anything to the contrary set forth in this Agreement, none of the Company, its Subsidiaries or their respective Representatives will be required to bear or pay or agree to pay any consent, amendment, waiver, upfront, arrangement, commitment, ticking, unused line or other fees, increased interest or margin, breakage costs, costs and expenses (including fees and expenses of counsel to any agent or lender thereunder) or other amounts payable to any Credit Agreement Financing Source pursuant to or in connection with the Company Credit Agreement (A) on or about the date of this Agreement in connection with the Company Credit Agreement Amendment or (B) from and after the date of this Agreement, to the extent attributable to any Company Credit Agreement Amendment (including in respect of any increased commitments, fees, margin, interest rates or other obligations thereunder) (collectively, the “Financing Costs”). The Company Group may pay any Financing Costs as and when due, and Buyer will reimburse the Company for all Financing Costs paid by the Company Group within five Business Days after written request therefor (together with supporting documentation), whether or not the Closing occurs. The Company’s determination of the amount of any Financing Costs (including any portion thereof attributable to any Company Credit Agreement Amendment) set forth in any such request will be conclusive and binding on Buyer absent manifest error.

(h) Subject to Section 7.03 and the limitations on specific enforcement set forth in Section 8.08, Buyer acknowledges and agrees the obligations of Buyer to consummate the Transactions on the terms contemplated by this Agreement are not contingent upon or otherwise subject to Buyer’s consummation of any financing arrangement, Buyer or any of its Affiliates obtaining any financing (including the Financing or any Alternative Financing) or the availability, grant, provision or extension of any financing to Buyer or any of its Affiliates (including the Financing or any Alternative Financing).

(i) Subject to the terms and conditions of this Agreement, Buyer will, and will cause its applicable Affiliates to, use reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things that are within Buyer’s or its Affiliates’ control reasonably necessary, proper or advisable to consummate and obtain the Financing on the terms and subject only to the conditions (including the “market flex” provisions in any fee letter associated with the Commitment Letters) set forth in the Commitment Letters (or on terms, other than with respect to conditionality, not materially less favorable to Buyer than the terms and conditions (including “market flex” provisions in any fee letter associated with the Commitment Letters) set forth in the Commitment Letters), including using reasonable best efforts to (i) maintain in effect and comply with the Commitment Letters, (ii) negotiate and enter into definitive agreements with respect to the Debt Financing on the terms and subject only to the conditions (including the “market flex” provisions in any fee letter associated with the Commitment Letters) set forth in the Debt Commitment Letter (or on terms, other than with respect to conditionality, not materially less favorable to Buyer than the terms and conditions (including “market flex” provisions in any fee letter associated with the Commitment Letters) set forth in the Debt Commitment Letter), (iii) satisfy (and cause its Affiliates to satisfy) on a timely basis all conditions to the funding or investing of the Financing required to satisfy the Financing Uses applicable to Buyer and its Affiliates in the Commitment Letters and the definitive agreements related thereto that are within their control that are to be satisfied by Buyer, (iv) consummate the Financing in an amount required to satisfy the Financing Uses at or prior to the Closing Date, including, in the event that all conditions contained in the Commitment Letters or the definitive financing documents applicable to the funding or investing of the Financing required to satisfy the Financing Uses (except those that, by their nature, are to be satisfied at the Closing) have been satisfied or waived, using its (and causing its Affiliates to use) reasonable best efforts to cause the lenders and the other Persons committing to fund the Financing to fund the Financing at the Closing, and (v) enforce its rights under the Commitment Letters and the definitive agreements relating to the Financing. Buyer will not, without the prior written consent of the Company (such consent not to be unreasonably withheld, conditioned or delayed), agree to or permit any termination of or material amendment or modification to be made to, or grant any material waiver of any provision under, the Commitment Letters if such termination, amendment, modification or waiver would reasonably be expected to (x) reduce the aggregate amount of the Financing below the amount necessary to satisfy the Financing Uses (including by increasing the amount of fees to be paid or original issue discount) or (y) impose new or additional conditions precedent to the availability of the Financing or otherwise adversely expand, amend or modify any of the conditions to the receipt of any portion of the Financing necessary to consummate the Transactions, or otherwise expand, amend or modify any other provision of the Commitment Letters in a manner that would reasonably be expected to (1) delay or prevent the funding of the Financing in an amount required to satisfy the Financing Uses on the Closing Date or (2) adversely impact the ability of Buyer to enforce its rights against other parties to the Commitment Letters in any material respect; provided that Buyer may amend the Debt Commitment Letter to add lenders, arrangers, bookrunners, syndication agents or other entities who had not executed the Debt Commitment Letter as of the date of this Agreement, to increase the amount of funds available thereunder and, in connection therewith, amend the economic and other arrangements with respect to the appointment of such existing and additional lenders, arrangers, bookrunners, syndication agents or other entities, or to reallocate the commitments provided thereunder. Buyer will promptly deliver to the Company copies of any such amendment, modification or waiver of a Commitment Letter (which may be redacted in a manner consistent with the redactions permitted by Section 4.05(b)). Buyer will fully pay, or cause to be paid, all commitment and other fees under or arising pursuant to the Debt Commitment Letter that are due and payable prior to the Closing Date as and when they become due and payable. Without the prior written consent of the Company, Buyer will not, and will cause its Affiliates not to, voluntarily reduce or terminate any commitments under the Debt Commitment Letter, or take any action that would result in a mandatory reduction thereof, unless, immediately after giving effect thereto, the sum of (w) the remaining commitments under the Debt Commitment Letter, (x) the Equity Financing, (y) the net cash proceeds of any debt securities or other Indebtedness that are held in escrow or a segregated account for the purpose of funding the Financing Uses at the Closing and are not subject to repayment, sweep, cash dominion or reduction prior to the Closing and (z) the unfunded commitments under any other executed commitment letter or definitive financing agreement (i) the conditions precedent to the funding of which are no less favorable to Buyer than the conditions precedent set forth in the Debt Commitment Letter as in effect on the date hereof, (ii) the commitments under which do not terminate prior to the termination of the commitments under the Debt Commitment Letter as in effect on the date hereof and (iii) a true, complete and correct copy of which (subject to redactions consistent with Section 4.05(b)) has been delivered to the Company, is sufficient to fund the Financing Uses; it being understood and agreed that (A) any financing the availability or funding of which is conditioned upon, subject to or limited by a borrowing base or similar asset-based borrowing criteria (including the Company Credit Agreement and the Revolving Commitment Increase (as defined in the Company Credit Agreement)) shall be deemed not to satisfy clause (z)(i) and (B) any financing described in clause (y) or (z) shall constitute “Debt Financing,” and any commitment letter or agreement in respect thereof shall constitute a “Debt Commitment Letter” for all purposes of this Agreement.

(j) Upon the reasonable request of the Company, promptly (and in any event within a reasonable period of time under the circumstances), Buyer will keep the Company informed on a reasonably current basis and in reasonable detail of the status of its efforts to arrange the Debt Financing and provide to the Company copies (including drafts) of the material definitive documents for the Debt Financing. Buyer will, promptly after obtaining Knowledge thereof, give the Company notice of, and keep the Company informed on a current basis and in reasonable detail of (i) any breach, default, termination or repudiation by any party to any of the Commitment Letters or definitive documents related to the Financing of which Buyer becomes aware, (ii) the receipt of any written notice or other written communication from any financing source with respect to any (A) actual or potential breach, default, termination or repudiation by any party to any of the Commitment Letters or any definitive document related to the Financing of any provisions of the Commitment Letters or any definitive document related to the Financing or (B) material dispute or disagreement between or among any parties to any of the Commitment Letters or any definitive document related to the Financing, in each case, that would reasonably be expected to prevent or delay the funding of the Financing in an amount required to satisfy the Financing Uses on the Closing Date, and (iii) the occurrence of an event or development that could reasonably be expected to adversely impact the ability of Buyer to obtain all or any portion of the Financing in an amount required to satisfy the Financing Uses. If any portion of the Debt Financing in an amount required to satisfy the Financing Uses becomes unavailable or Buyer becomes aware of any event or circumstance that would reasonably be expected to make any portion of the Debt Financing in an amount required to satisfy the Financing Uses unavailable, in each case, on the terms and conditions (including any applicable “market flex” provisions in any fee letter associated with the Debt Commitment Letter) contemplated by the Debt Commitment Letter, Buyer will use its reasonable best efforts to arrange and obtain in replacement thereof, and negotiate and enter into definitive agreements with respect to, alternative financing from alternative sources (such financing, the “Alternative Financing”) (x) in an amount sufficient to satisfy the Financing Uses (after taking into consideration the portion of the Debt Financing that is and remains available and the amount of Equity Financing ), (y) with terms (including “market flex” provisions in any fee letter associated with the Debt Commitment Letter), other than with respect to conditionality, not materially less favorable to Buyer (or its Affiliates) than the terms and conditions (including the “market flex” provisions) set forth in the Debt Commitment Letter, and (z) which would not reasonably be expected to prevent or delay or make less likely to occur the funding of the Financing (or the satisfaction of the conditions to the Financing) on the Closing Date, as promptly as reasonably practicable following the occurrence of such event (but not later than the date Buyer is required to consummate the Closing in accordance with this Agreement); provided that the failure to obtain Alternative Financing will not relieve Buyer of any obligation hereunder. Buyer will deliver to the Company true, complete and correct copies of the new executed commitment letter that provided for such Alternative Financing (which may be redacted in a manner consistent with the redactions permitted by Section 4.05(b)). For purposes of this Agreement (other than with respect to representation in this Agreement made by Buyer as of the date of this Agreement), references to (1) the “Financing” and “Debt Financing” includes any such Alternative Financing and (2) the “Debt Commitment Letter” and “Commitment Letters” includes such documents with respect to any such Alternative Financing.

(k) Notwithstanding anything to the contrary contained in this Agreement, nothing contained in this Section 5.14 will require, and in no event will the reasonable best efforts of Buyer be deemed or construed to require, Buyer to (i) seek the Equity Financing from any source other than a counterparty to, or in any amount in excess of that contemplated by, the Equity Commitment Letters or (ii) pay any fees in excess of those contemplated by the Equity Commitment Letters or the Debt Commitment Letter.

(l) Notwithstanding anything to the contrary contained in this Agreement, the Parties acknowledge and agree that any action taken or omitted to be taken by the Company or any of its Affiliates or any of its or their respective Representatives with respect to the matters contemplated by this Section 5.14, and compliance with the provisions hereof (unless (i) the Company or any of its Affiliates or any of its or their respective Representatives have taken or failed to take an action that constitutes a Willful Breach of its obligations contained in this Section 5.14, (ii) such Willful Breach has not been cured within 10 days following written notice by Buyer (provided such notice describes such Willful Breach in reasonable specificity to enable the Company a reasonable opportunity to cure such Willful Breach), and (iii) such Willful Breach was a proximate cause of Buyer’s failure to receive any material portion of the proceeds of the Debt Financing necessary to fund the Financing Uses), will not be taken into account for purposes of determining whether any of the conditions in Article VI have been satisfied or whether any right of termination arises under Article VII.

5.15. Indenture.

(a) Buyer will be permitted, at its option, to commence and conduct, in accordance with the terms of the Indenture, dated November 21, 2014, between the Company and The Bank of New York Mellon Trust Company, N.A., as trustee (the “Trustee”), as amended, modified and supplemented to the date hereof, including by the Ninth Supplemental Indenture, dated June 15, 2021, among the Company, the guarantors party thereto and the Trustee (as so amended, modified and supplemented, the “Senior Subordinated Notes Indenture”), pursuant to which the Company issued its 3.75% Senior Subordinated Notes due 2029 (the “Senior Subordinated Notes”), one or more offers to purchase or (if it so elects) to conduct a consent solicitation with respect to the outstanding Senior Subordinated Notes (any such offer to purchase, together with any such consent solicitation, a “Debt Offer”). Any such Debt Offer shall be consummated using funds provided by Buyer. If Buyer elects to conduct a Debt Offer, Buyer will provide the Company with drafts of the necessary offer to purchase, letter of transmittal, supplemental indenture or other related documents in connection with the Debt Offer (collectively, the “Debt Offer Documents”) a reasonable period of time in advance of commencing the applicable Debt Offer to allow the Company and its counsel to review and comment on the related Debt Offer Documents, and Buyer will give reasonable and good faith consideration to any comments made by the Company and its counsel. Buyer will reasonably consult with the Company regarding the timing and commencement of any Debt Offer and any relevant tender or consent deadlines. The closing (or, if applicable, effectiveness) of any Debt Offer will be expressly conditioned on the consummation of the Merger (which condition will not be waivable by Buyer) and the acceptance for purchase of the Senior Subordinated Notes by Buyer of all validly tendered and not validly withdrawn by the holders thereof in such Debt Offer. The Company will reasonably cooperate with Buyer to cause any such Debt Offer to close concurrently with the consummation of the Merger. If Buyer elects to conduct a Debt Offer, (i) the Debt Offer will be conducted in compliance with the Senior Subordinated Notes Indenture and applicable Law, including all SEC rules and regulations, and (ii) the Company will, and will cause its Subsidiaries and will use its reasonable best efforts to cause their respective Representatives to, provide all cooperation reasonably requested by Buyer in connection with any Debt Offer, at the sole expense of Buyer. For the avoidance of doubt, (A) the consummation of a Debt Offer will not be a condition to Closing and (B) neither the Company nor any of its directors, officers, employees or Affiliates will be obligated to make any recommendation with respect to any Debt Offer.

(b) Subject to the receipt of any requisite consents as part of any Debt Offer including a consent solicitation, the Company will execute a supplemental indenture to the Senior Subordinated Notes Indenture in accordance with the Senior Subordinated Notes Indenture, amending the terms and provisions of the Senior Subordinated Notes as described in the Debt Offer Documents as reasonably requested by Buyer, which supplemental indenture will become operative no earlier than the consummation of such Debt Offer, and will use reasonable best efforts to cause the Trustee to enter into such supplemental indenture prior to or substantially simultaneously with the Closing; provided, however, that in no event will the Company or any of its officers, directors or other Representatives have any obligation to authorize, adopt or execute any amendments or other agreement that is not permitted under applicable Law or would become operative prior to the Closing or the time of acceptance for purchase of the Senior Subordinated Notes by Buyer. The Company will, and will use its reasonable best efforts to cause its Representatives to, provide all cooperation reasonably requested by Buyer in connection with the execution of the supplemental indentures referred to in the immediately preceding sentence, at the sole expense of Buyer. If requested by Buyer, the Company will use reasonable best efforts to cause its legal counsel to provide customary legal opinions in customary form and scope and subject to customary assumptions, qualifications and limitations, solely to the extent such opinions relate to the Company, the Senior Subordinated Notes Indenture, any supplemental indenture, any notice of redemption, or any other document required to be delivered by the Company to the Trustee under the Senior Subordinated Notes Indenture in connection with the transactions contemplated by this Section 5.15 to the extent such legal opinion relates to the Company and is required to be delivered prior to the Closing Date. For the avoidance of doubt, nothing in the preceding sentence shall require counsel to the Special Committee of the Company to render any legal opinion. Notwithstanding the foregoing, in no event will the Company or its legal counsel be required to give an opinion with respect to a Debt Offer that in the opinion of the Company or its legal counsel does not comply with applicable Laws or the Senior Subordinated Notes Indenture, or an opinion with respect to financing by Buyer.

(c) If requested by Buyer, in lieu of or in addition to Buyer commencing any Debt Offer, the Company will (i) send any notices of redemption with respect to all or a portion of the outstanding aggregate principal amount of any Senior Subordinated Notes (which will be in the form required under the Senior Subordinated Notes Indenture and conditioned upon the consummation of the Closing, and will be in form and substance reasonably satisfactory to Buyer) to the Trustee, (ii) take such actions as may be required under the Senior Subordinated Notes Indenture to cause the Trustee to proceed with the redemption of the Senior Subordinated Notes under the Senior Subordinated Notes Indenture and to provide the notice of redemption (conditioned upon consummation of the Closing if provided prior to the Closing) to the holders of the Senior Subordinated Notes pursuant to the Senior Subordinated Notes Indenture, (iii) deliver all other documents required under the Senior Subordinated Notes Indenture (including any officer’s certificates and legal opinions to the extent required to be delivered prior to the Closing) as may be required under the Senior Subordinated Notes Indenture to issue notices of redemption (conditioned upon consummation of the Closing, if issued prior to the Closing) for the Senior Subordinated Notes in accordance with the Senior Subordinated Notes Indenture, and (iv) otherwise provide for (x) the redemption of the Senior Subordinated Notes on the Closing Date or such later date as specified by Buyer and (y) the satisfaction and discharge of the applicable Senior Subordinated Notes on the Closing Date or such later date as specified by Buyer, in each case, pursuant to the requisite provisions of the Senior Subordinated Notes Indenture. If permitted by the Senior Subordinated Notes Indenture, the notices of redemption delivered to the Trustee and holders of the Senior Subordinated Notes (if delivered prior to Closing) may state that the redemption date may be delayed until such time as any condition to redemption stated therein is satisfied or such redemption may not occur and such notice may be rescinded in the event such condition is not satisfied. Buyer will provide, or arrange for its Financing sources to provide, to the Company, the funds necessary to consummate any such redemption (including the payment of all applicable premiums) on the applicable redemption date.

(d) Prior to the Effective Time, the Company will take all actions required by the Senior Subordinated Notes Indenture to be performed by the Company as a result of the execution and delivery of this Agreement and the consummation of the Transactions, including the giving of any notices that may be required in connection with the Senior Subordinated Notes Indenture and the delivery to the Trustee of any certificates, opinions, documents or instruments required to be delivered to the Trustee, in each case, in connection with the Transactions or otherwise required pursuant to the terms of the Senior Subordinated Notes Indenture. Buyer and its counsel will be given a reasonable opportunity to review and comment on any such notice, certificate, opinion, document or instrument, in each case before such document is provided to the Trustee, and the Company will give reasonable and good faith consideration to any comments made by Buyer and its counsel.

(e) Buyer will promptly, upon request by the Company, reimburse the Company for all reasonable out-of-pocket costs and expenses (including reasonable attorneys’ fees) incurred by the Company Group and its Representatives in connection with any Debt Offer or redemption of the Senior Subordinated Notes and will indemnify and hold harmless each member of the Company Group and its respective Representatives from and against any and all losses, damages, claims, costs or expenses suffered or incurred by any of them in connection with their cooperation in connection with any Debt Offer or redemption of the Senior Subordinated Notes and the provision of any information used in connection therewith (other than information provided by the Company Group), in each case, other than to the extent any of the foregoing was suffered or incurred as a result of the bad faith, gross negligence or willful misconduct of, or material breach of this Agreement by, the Company, its Subsidiaries or their Representatives.

(f) Notwithstanding anything to the contrary contained in this Agreement, the Parties acknowledge and agree that any action taken or omitted to be taken by the Company or any of its Affiliates or any of its or their respective Representatives with respect to the matters contemplated by this Section 5.15, and compliance with the provisions thereof, will not be taken into account for purposes of determining whether any of the conditions in Article VI have been satisfied or whether any right of termination arises under Article VII (unless (i) the Company or any of its Affiliates or any of its or their respective Representatives have taken or failed to take an action that constitutes a Willful Breach of its obligations contained in this Section 5.15, (ii) such Willful Breach has not been cured within 10 days following written notice by Buyer (provided such notice describes such Willful Breach in reasonable specificity to enable the Company a reasonable opportunity to cure such Willful Breach), and (iii) such Willful Breach was a proximate cause of the failure of the Senior Subordinated Notes Indenture to be performed; provided, that, notwithstanding the foregoing, regardless of whether or not it constitutes a Willful Breach, such action taken or omitted to be taken shall not be taken into account for purposes of determining whether any of the conditions in Article VI have been satisfied or whether any right of termination arises under Article VII if the Debt Financing (or Alternative Financing) has been funded in full in accordance with the terms thereof or will be funded in full in accordance with the terms thereof at the Closing if the Equity Financing is funded at the Closing).

5.16. Further Assurances. At and after the Effective Time, the officers and directors of the Company will be authorized to execute and deliver, in the name and on behalf of itself or Buyer, any instruments or assurances and to take and do, in the name and on behalf of itself or Buyer, any other actions and things to vest, perfect or confirm of record or otherwise in the Company any and all right, title and interest in, to and under any of the rights, properties or assets of the Company acquired or to be acquired by the Company as a result of, or in connection with, the Merger.

5.17. Certain Tax Matters.

(a) FIRPTA Certificate. At the Closing, the Company will deliver to Buyer a statement (and an accompanying notice addressed to the IRS), dated no more than 30 days prior to the Closing Date and executed by an officer of the Company, in accordance with Treasury Regulations Sections 1.1445-2(c)(3)(i) and 1.897-2(h), certifying that no equity interest in the Company is a U.S. real property interest within the meaning of Section 897(c) of the Code, substantially in a form reasonably acceptable to Buyer; provided, however, that Buyer’s sole recourse for any failure by the Company to deliver such statement to Buyer pursuant to this Section 5.17 will be the right to withhold pursuant to Section 2.02(g).

(b) Tax Treatment. The Parties acknowledge and agree that (i) for U.S. federal (and applicable state and local) income tax purposes, the Merger is intended to be treated as a sale or exchange under Sections 1001 and 302(b) of the Code and (ii) no excise Tax under Section 4501 of the Code will be applicable to the Merger Consideration pursuant to Treasury Regulations Section 58.4501-2(e)(3)(ii). No Party will (and each Party will cause its Affiliates not to) take any position inconsistent with the tax treatment described in this Section 5.17(b) on any Tax Return, in any Tax contest, Tax audit, or Tax proceeding, or otherwise with respect to any Tax, except as required under applicable Law.

(c) Transfer Taxes. Except as otherwise provided in Section 2.02(b)(iv), all transfer, documentary, sales, use, stamp, registration and other similar Taxes and fees (including penalties and interest) incurred by the Company or the Subsidiaries of the Company in connection with the Merger shall be paid by the Surviving Corporation or the Subsidiaries of the Company, as applicable, when due and expressly shall not be a liability of the holders of Company Common Stock.

5.18. Company KSOP Matters.

(a) As soon as practicable after the date of this Agreement, the Company will coordinate with the trustee or other applicable fiduciary of the Company KSOP regarding the participant pass-through vote to be conducted in accordance with the voting requirements of Section 409(e)(2) of the Code and the terms of the Company KSOP in connection with the Transactions. The Company will request the trustee to provide to Buyer for review, reasonably in advance of such pass-through vote, but in any event at least 10 Business Days prior to distribution thereof to the participants, all materials (other than the Proxy Statement) prepared by the Company and approved by the trustee proposed to be disclosed to the participants in connection with such pass-through vote, and the Company shall incorporate any comments reasonably proposed by Buyer with respect to any portion of such materials that discusses the terms of this Agreement or the Transactions.

(b) The Company shall use reasonable best efforts to obtain, prior to the delivery of the Proxy Statement to Company Stockholders, a written opinion from an independent valuation firm selected by the Company KSOP’s named fiduciary and directed to the Company KSOP’s named fiduciary to the effect that as of the date of such opinion and subject to the limitations, qualifications and assumptions set forth therein, the Merger Consideration to be received by the Company KSOP participants who have Company Common Stock in their Company KSOP accounts pursuant to this Agreement represents “adequate consideration” within the meaning of Section 3(18) of ERISA (the “KSOP Adequate Consideration Opinion”). A signed, true, correct and complete copy of the KSOP Adequate Consideration Opinion will be made available to Buyer promptly following receipt by the Company KSOP’s named fiduciary. As soon as administratively practicable after the date of this Agreement, the Company shall take such actions reasonably necessary to suspend new eligibility, new entry and the opportunity to purchase or contribute additional shares under the employee stock ownership plan portion of the Company KSOP (the “ESOP Component Plan”), such that no employees will be able to acquire additional Company Common Stock under the ESOP Component Plan, no further employee or employer contributions shall be made to the ESOP Component Plan, and the Company KSOP shall not permit new investment in Company Securities, in each case other than with respect to Company dividends payable, in accordance with the terms of the Company KSOP, on Company Common Stock invested under the ESOP Component Plan prior to such suspension.

(c) Prior to the Effective Time, the Company Board will adopt resolutions and amendments relating to the Company KSOP, in each case, duly executed by the Company and, as required, the trustee of the Company KSOP (all such resolutions and amendments, collectively, the “KSOP Amendment”), that are effective as of and contingent upon the Effective Time, providing for (i) recharacterization of the ESOP Component Plan from an employee stock ownership plan to a profit sharing plan (such portion, the “Recharacterized Plan”) that is no longer required or allowed to be invested in Company Securities, (ii) removal from the Recharacterized Plan of the right to receive distributions in the form of Company Common Stock, (iii) suspending eligibility, entry and further benefit accruals under the Recharacterized Plan effective as of the Effective Time, such that no further employees will become eligible under the Recharacterized Plan and no further contributions shall be made to the Recharacterized Plan, in each case after the Effective Time, and (iv) allocation of the Merger Consideration to participants’ accounts under the Recharacterized Plan in accordance with the terms of the Recharacterized Plan and the KSOP Amendment.

ARTICLE VI

Conditions to the Merger

6.01. Conditions to Each Party’s Obligation To Effect the Merger. The respective obligations of each Party to effect the Merger shall be subject to the satisfaction on or prior to the Closing Date of the following conditions:

(a) No Restraints. No Judgment enacted, promulgated, issued, entered, amended or enforced by any Governmental Authority of competent jurisdiction or any applicable Law enacted (collectively, “Restraints”) shall be in effect enjoining, restraining or otherwise making illegal, preventing or prohibiting the consummation of the Merger;

(b) Required Regulatory Approvals; HSR. (i) The waiting period (and any extension thereof) applicable to the consummation of the Merger under the HSR Act shall have expired or early termination thereof shall have been granted and (ii) the consents, approvals or other clearances set forth in Section 6.01(b) of the Company Disclosure Letter shall have been obtained (collectively, the “Required Regulatory Approvals”); and

6.02. Conditions to the Obligations of Buyer. The obligations of Buyer to effect the Merger shall be subject to the satisfaction on or prior to the Closing Date of the following conditions:

(a) Representations and Warranties. The representations and warranties of the Company (i) set forth in Section 3.02 (Capitalization) shall be true and correct in all but de minimis respects as of the Closing Date with the same effect as though made as of the Closing Date (except to the extent expressly made as of an earlier date or time, in which case as of such earlier date or time), (ii) set forth in Section 3.07(b) (No Material Adverse Effect) shall be true and correct as of the Closing Date with the same effect as though made as of the Closing Date (except to the extent expressly made as of an earlier date or time, in which case as of such earlier date or time), (iii) set forth in Section 3.01 (Organization; Standing) (other than the third sentence of Section 3.01), Section 3.04(a) through (d) (Authority; Noncontravention), Section 3.20 (No Rights Agreement; Anti-Takeover Provisions), Section 3.21 (Opinion of Financial Advisor) and Section 3.22 (Brokers and Other Advisors) (clauses (i), (ii) and (iii) collectively, the “Fundamental Representations”) (A) to the extent qualified by “materiality,” “Material Adverse Effect” and words of similar import set forth therein, shall be true and correct in all respects as of the Closing Date as if made on the Closing Date (except to the extent expressly made as of an earlier date or time, in which case as of such earlier date or time), and (B) to the extent not qualified by “materiality”, “Material Adverse Effect” and words of similar import set forth therein shall be true and correct in all material respects as of the Closing Date with the same force and effect as if made on the Closing Date (except to the extent expressly made as of an earlier date or time, in which case as of such earlier date or time), and (iv) set forth in this Agreement, other than the Fundamental Representations, shall be true and correct (disregarding all qualifications or limitations as to “materiality,” “Material Adverse Effect” and words of similar import set forth therein except for and within the defined term “Material Contract”) as of the Closing Date with the same force and effect as if made as of the Closing Date (except to the extent expressly made as of an earlier date, in which case as of such earlier date), except, in the case of this clause (iv), where the failure to be true and correct would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect;

(b) Compliance with Covenants. The Company shall have complied with or performed in all material respects its obligations required to be complied with or performed by it at or prior to the Effective Time under this Agreement;

(c) No Material Adverse Effect. Since the date of this Agreement, there shall not have occurred any change, event, development, occurrence, state of facts, circumstance or effect that, individually or in the aggregate, has had or would reasonably be expected to have a Material Adverse Effect; and

(d) Company Closing Certificate. The Company shall have delivered to Buyer a certificate, dated as of the Closing Date and signed by an executive officer of the Company, certifying to the effect that the conditions set forth in Sections 6.02(a), 6.02(b) and 6.02(c) have been satisfied.

6.03. Conditions to the Obligations of the Company. The obligations of the Company to effect the Merger shall be subject to the satisfaction on or prior to the Closing Date of the following conditions:

(a) Representations and Warranties. The representations and warranties of Buyer (i) set forth in Section 4.01 (Organization; Standing) and Section 4.02(a) (Authority) shall be true and correct in all material respects (disregarding all qualifications or limitations as to “materiality,” “Buyer Material Adverse Effect” and words of similar import set forth therein) as of the Closing Date with the same effect as though made as of the Closing Date (except to the extent expressly made as of an earlier date, in which case as of such earlier date) and (ii) other than those Sections specifically identified in clause (i) of this paragraph, shall be true and correct (disregarding all qualifications or limitations as to “materiality,” “Buyer Material Adverse Effect” and words of similar import set forth therein) as of the Closing Date with the same effect as though made as of the Closing Date (except to the extent expressly made as of an earlier date, in which case as of such earlier date), except, in the case of this clause (ii), where the failure to be true and correct would not, individually or in the aggregate, reasonably be expected to have a Buyer Material Adverse Effect;

(b) Compliance with Covenants. Buyer shall have complied with or performed in all material respects its obligations required to be complied with or performed by it at or prior to the Effective Time under this Agreement; and

(c) Buyer Closing Certificate. Buyer shall have delivered to the Company a certificate, dated as of the Closing Date and signed by an executive officer of Buyer, certifying to the effect that the conditions set forth in Section 6.03(a) and Section 6.03(b) have been satisfied.

ARTICLE VII

Termination

7.01. Termination. This Agreement may be terminated, and the Transactions abandoned at any time prior to the Effective Time, notwithstanding receipt of the Company Stockholder Approval (except as otherwise specified in this Section 7.01):

(a) by the mutual written consent of the Company and Buyer;

(b) by either the Company or Buyer, upon prior written notice to the other Party, if:

(i) the Effective Time has not occurred on or prior to 11:59 p.m. New York City time on October 15, 2027 (the “Outside Date”);

(ii) any Restraint having the effect set forth in Section 6.01(a) (No Restraints) is in effect and has become final and nonappealable; or

(iii) the Company Stockholder Approval has not been obtained at the Company Stockholders Meeting (including any adjournments or postponements thereof);

(i) the Company has breached any of its representations or warranties or failed to perform any of its covenants set forth in this Agreement, which breach or failure to perform (A) would give rise to the failure of a condition set forth in Section 6.02(a) (Company Representations) or Section 6.02(b) (Compliance with Covenants) and (B) is incapable of being cured or, if capable of being cured, has not been cured by the earlier of (I) 30 days following written notice thereof from Buyer to the Company and (II) the Outside Date; provided that Buyer shall not have the right to terminate this Agreement pursuant to this Section 7.01(c)(i) if Buyer is then in breach of any of its representations, warranties or covenants under this Agreement so as to cause any of the conditions set forth in Section 6.03(a) (Buyer Representations) or Section 6.03(b) (Compliance with Covenants) not to be satisfied or capable of being satisfied; or

(ii) at any time prior to obtaining the Company Stockholder Approval, the Special Committee or the Company Board (acting on the recommendation of the Special Committee) has made an Adverse Recommendation Change; or

(d) by the Company, upon prior written notice to Buyer:

(i) if Buyer has breached any of its representations or warranties or failed to perform any of its covenants set forth in this Agreement, which breach or failure to perform (A) would give rise to the failure of a condition set forth in Section 6.03(a) (Buyer Representations) or Section 6.03(b) (Compliance with Covenants) and (B) is incapable of being cured or, if capable of being cured, has not been cured by the earlier of (I) 30 days following written notice thereof from the Company to Buyer and (II) the Outside Date; provided that the Company shall not have the right to terminate this Agreement pursuant to this Section 7.01(d)(i) if the Company is then in breach of any of its representations, warranties or covenants under this Agreement so as to cause any of the conditions set forth in Section 6.02(a) (Company Representations) or Section 6.02(b) (Compliance with Covenants) not to be satisfied or capable of being satisfied;

(ii) at any time prior to obtaining the Company Stockholder Approval, in connection with the Company entering into a Company Acquisition Agreement in accordance with Section 5.02(e) (Solicitation; Change in Recommendation); provided that prior to or concurrently with such termination the payment required by Section 7.03(a) (Company Termination Fee) is paid in full to Buyer; or

(iii) if (A) on the date the Closing should have occurred pursuant to Section 1.02 (Closing), the conditions set forth in Section 6.01 (Conditions to Each Party’s Obligations) and Section 6.02 (Conditions to the Obligations of Buyer) had been satisfied or waived (to the extent such waiver is permitted by applicable Law) (other than those conditions that by their nature are to be satisfied at the Closing, but provided that such conditions were then capable of being satisfied when the Closing would have been required to occur pursuant to Section 1.02 (Closing)), (B) on or after the date the Closing should have occurred pursuant to Section 1.02 (Closing), the Company has irrevocably confirmed by written notice to Buyer that all conditions set forth in Section 6.03 (Conditions to the Obligations of the Company) have been satisfied (other than those conditions that by their nature are to be satisfied at the Closing, but provided that such conditions are then capable of being satisfied at Closing) or that the Company is willing to irrevocably waive any unsatisfied conditions set forth in Section 6.03 (Conditions to the Obligations of the Company), and (C) the Merger has not been consummated within three Business Days after the delivery of such notice.

Any termination of this Agreement by the Company pursuant to this Section 7.01, and any determination by the Company to exercise or refrain from exercising any termination right pursuant to this Section 7.01, shall require the prior approval of the Special Committee.

7.02. Effect of Termination. In the event of the valid termination of this Agreement as provided in Section 7.01 (Termination), written notice thereof shall be given to the other Party specifying the provision hereof pursuant to which such termination is made, and this Agreement will forthwith become null and void and of no effect, without liability or obligation on the part of any Party (or any of its Representatives) relating to, based on or arising under or out of this Agreement or the Transactions, except that (a) the Confidentiality Agreement shall survive the termination of this Agreement and will remain in effect in accordance with its terms, (b) Section 5.04 (Public Announcements), the last sentence of Section 5.05 (Access to Information; Confidentiality), Section 5.14(f) and Section 5.14(g) (Financing), Section 5.15(e) (Indenture), this Section 7.02, Section 7.03 (Termination Fee) and Article VIII (Miscellaneous Provisions) will survive the termination of this Agreement and remain in full force and effect, and (c) subject to Section 7.03, no such termination will relieve any Party from any liability or damages resulting from any Fraud or any Willful Breach occurring prior to such termination or relieve any Party from any liability or damages resulting from any breach of the Confidentiality Agreement or the Limited Guarantees (subject to any limitations therein), in which case the aggrieved Party shall be entitled to all rights and remedies available at law or in equity.

7.03. Termination Fee.

(a) In the event that:

(i) this Agreement is terminated by the Company pursuant to Section 7.01(d)(ii) (Superior Proposal);

(ii) this Agreement is terminated by Buyer pursuant to Section 7.01(c)(ii) (Adverse Recommendation Change); or

(iii) (A) this Agreement is terminated by Buyer or the Company pursuant to Section 7.01(b)(i) (Outside Date) or Section 7.01(b)(iii) (Failure to Obtain Company Stockholder Approval) or by Buyer pursuant to Section 7.01(c)(i) (Company Terminating Breach), (B) a bona fide Takeover Proposal has been publicly announced or become publicly disclosed or publicly known after the date of this Agreement and prior to such termination and, in either case, has not been publicly withdrawn or otherwise publicly abandoned prior to such termination (or, in the case of a termination pursuant to Section 7.01(b)(iii) (Failure to Obtain Company Stockholder Approval), at least three Business Days prior to the Company Stockholders Meeting), and (C) within 12 months following such termination, the Company enters into a definitive written agreement providing for a Takeover Proposal that is later consummated or a Takeover Proposal is consummated (provided that for purposes of this Section 7.03(a)(iii), the term “Takeover Proposal” shall have the meaning given to such term in this Agreement, except that percentages included in the definition of “Takeover Proposal” shall be increased to 50%);

then the Company will pay, as directed by the Equity Commitment Parties, the Company Termination Fee. Payment of the Company Termination Fee will be made by wire transfer of same day funds to the account or accounts designated by the Equity Commitment Parties as follows: (1) in the case of Section 7.03(a)(i), prior to or substantially concurrently with termination of this Agreement pursuant to Section 7.01(d)(ii); (2) in the case of Section 7.03(a)(ii), within three Business Days after termination of this Agreement pursuant to Section 7.01(c)(ii); and (3) in the case of Section 7.03(a)(iii), within three Business Days of the consummation of the applicable Takeover Proposal. For the avoidance of doubt, any payment made by the Company under this Section 7.03(a) will be payable only once with respect to this Section 7.03(a), and not in duplication, even though such payment may be payable under one or more provisions hereof. In any circumstance in which this Agreement is terminated and the Company Termination Fee is payable pursuant to this Section 7.03(a) the Company Termination Fee and, if applicable, any Buyer Recovery Costs paid in accordance with this Section 7.03(a), will be (I) deemed to be liquidated damages for any and all losses or damages suffered or incurred by Buyer, the Equity Commitment Parties or any of their Affiliates or Representatives or any other Person in connection with this Agreement (and the termination hereof), the Transactions (and the abandonment thereof) or any matter forming the basis for such termination and (II) the sole and exclusive remedy of the Buyer Related Parties or any other Person for any and all losses or damages suffered or incurred in connection with this Agreement (and the termination hereof), the Transactions (and the abandonment thereof) or any matter forming the basis for such termination. In any circumstances in which this Agreement is terminated and the Company Termination Fee is payable pursuant to this Section 7.03(a), upon payment of the Company Termination Fee and, if applicable, any Buyer Recovery Costs contemplated by this Section 7.03(a), none of the Company, any of its Subsidiaries or any of the Company’s or its Subsidiaries’ respective former, current or future officers, directors, partners, stockholders, managers, members, Affiliates or Representatives, or any of the respective successors or assigns of any of the foregoing (collectively, the “Company Related Parties”) will have further liability, whether pursuant to a claim at Law or in equity, to Buyer, the Equity Commitment Parties or any of their Affiliates or Representatives or any other Person in connection with this Agreement (and the termination hereof), the Transactions (and the abandonment thereof) or any matter forming the basis for such termination, and none of Buyer, the Equity Commitment Parties or any of their Affiliates or Representatives or any other Person will be entitled to bring or maintain any Action against any Company Related Party for damages or any equitable relief arising out of or in connection with this Agreement (and the termination hereof), the Transactions (and the abandonment thereof) or any matters forming the basis for such termination, in each case other than an Action seeking equitable relief to require payment of the Company Termination Fee and any Buyer Recovery Costs. If the Company fails to pay the Company Termination Fee and Buyer or any Equity Commitment Party commences a suit which results in a final, non-appealable judgment against the Company for the Company Termination Fee or any portion thereof, then the Company will pay Buyer or such Equity Commitment Party, as applicable, its reasonable, documented out-of-pocket costs and expenses (including reasonable attorneys’ fees and disbursements) in connection with such suit, together with interest on the Company Termination Fee at the “prime rate” as published in The Wall Street Journal, Eastern Edition, in effect on the date such payment was required to be made through the date of payment (calculated daily on the basis of a year of 365 days and the actual number of days elapsed, without compounding) (the “Buyer Recovery Costs”). As used herein, “Company Termination Fee” means a cash amount equal to three hundred eighty-three million dollars ($383,000,000).

(b) In the event that this Agreement is terminated:

(i) by the Company pursuant to Section 7.01(d)(i) (Buyer Terminating Breach);

(ii) by the Company pursuant to Section 7.01(d)(iii) (Buyer Failure to Close); or

(iii) by Buyer or the Company pursuant to Section 7.01(b)(i) (Outside Date), and at the time of such termination the Company would have been entitled to terminate this Agreement pursuant to Section 7.01(d)(i) (Buyer Terminating Breach) or Section 7.01(d)(iii) (Buyer Failure to Close);

then Buyer will pay, as directed by the Company, the Buyer Termination Fee. Payment of the Buyer Termination Fee will be made by wire transfer of same day funds to the account or accounts designated by the Company within three Business Days after termination of this Agreement pursuant to this Section 7.03(b). For the avoidance of doubt, any payment made by Buyer under this Section 7.03(b) will be payable only once with respect to this Section 7.03(b), and not in duplication, even though such payment may be payable under one or more provisions hereof. In any circumstance in which this Agreement is terminated and the Buyer Termination Fee is payable pursuant to this Section 7.03(b), the Buyer Termination Fee and, if applicable, any Company Recovery Costs paid in accordance with this Section 7.03(b), will be (I) deemed to be liquidated damages for any and all losses or damages suffered or incurred by the Company Related Parties or any of their Affiliates or Representatives or any other Person in connection with this Agreement (and the termination hereof), the Transactions (and the abandonment thereof) or any matter forming the basis for such termination and (II) the sole and exclusive remedy of the Company Related Parties or any other Person for any and all losses or damages suffered or incurred in connection with this Agreement (and the termination hereof), the Transactions (and the abandonment thereof) or any matter forming the basis for such termination. In any circumstances in which this Agreement is terminated and the Buyer Termination Fee is payable pursuant to this Section 7.03(b), upon payment of the Buyer Termination Fee and, if applicable, the Company Recovery Costs contemplated by this Section 7.03(b), none of Buyer, any Investor Group Member, any Equity Commitment Party, any Guarantor, any of their respective Affiliates, or any of their or their Affiliates’ respective former, current or future officers, directors, partners, stockholders, managers, members or Representatives, or any of the respective successors or assigns of any of the foregoing (collectively, the “Buyer Related Parties”) will have any further liability, whether pursuant to a claim at Law or in equity, to the Company or any of its Affiliates or Representatives or any other Person in connection with this Agreement (and the termination hereof), the Transactions (and the abandonment thereof) or any matter forming the basis for such termination, and none of the Company or any of its Affiliates or Representatives or any other Person will be entitled to bring or maintain any Action against any Buyer Related Party for damages or any equitable relief arising out of or in connection with this Agreement (and the termination hereof), the Transactions (and the abandonment thereof) or any matter forming the basis for such termination, in each case other than (i) an Action seeking equitable relief to require payment of the Buyer Termination Fee and the Company Recovery Costs by Buyer in accordance with this Section 7.03(b) and (ii) claims against a Guarantor solely pursuant to, and subject to the terms and conditions of, the applicable Limited Guarantee. If Buyer fails to pay the Buyer Termination Fee and the Company commences a suit which results in a final, non-appealable judgment against Buyer for the Buyer Termination Fee, or any portion thereof, then Buyer will pay the Company its reasonable, documented out-of-pocket costs and expenses (including reasonable attorneys’ fees and disbursements) in connection with such suit, together with interest on the Buyer Termination Fee at the “prime rate” as published in The Wall Street Journal, Eastern Edition, in effect on the date such payment was required to be made through the date of payment (calculated daily on the basis of a year of 365 days and the actual number of days elapsed, without compounding) plus any amounts payable or reimbursable by Buyer in accordance with this Agreement (the “Company Recovery Costs”). As used herein, “Buyer Termination Fee” means a cash amount equal to four hundred eighty-eight million dollars ($488,000,000).

(c) Notwithstanding anything to the contrary in this Agreement, while each of the Company and Buyer may, prior to the valid termination of this Agreement, pursue both a grant of specific performance in accordance with Section 8.08 (Specific Enforcement) and the Buyer Termination Fee or the Company Termination Fee, as applicable, if, as and when required to be paid pursuant to this Section 7.03, under no circumstances will the Company or Buyer, directly or indirectly, be permitted or entitled to receive both (i) a grant of specific performance that results in a Closing (including, with respect to the Company, to cause the Equity Financing to be funded (whether under this Agreement or the Equity Commitment Letters)), on the one hand, and (ii) any monetary damages whatsoever, the Company Termination Fee (plus the Buyer Recovery Costs, if any) or the Buyer Termination Fee (plus the Company Recovery Costs, if any), as applicable, on the other hand.

(d) In connection with any losses or damages suffered by Buyer or any Buyer Related Party as a result of the failure of the Transactions to be consummated or for a breach or failure to perform hereunder or otherwise, other than in the circumstances in which Buyer is entitled to receive the Company Termination Fee in accordance with Section 7.03(a) (in which case Section 7.03(a) will apply), and without limiting the Company’s obligations in respect of the Buyer Recovery Costs, Buyer agrees, on behalf of itself and the Buyer Related Parties, that the maximum aggregate monetary liability of the Company and the Company Related Parties (including under or in respect of any Ancillary Document, other than the Confidentiality Agreement), if any, will be limited to the amount of the Company Termination Fee, and in no event will Buyer or any Buyer Related Party seek or be entitled to recover from the Company or any Company Related Party, and Buyer on behalf of itself and the Buyer Related Parties hereby irrevocably waives and relinquishes any right to seek or recover, any monetary damages in the aggregate in excess of such amount, including for the liability of the Company for any such losses or damages arising in the case of or resulting from Fraud or Willful Breach.

(e) In connection with any losses or damages suffered by the Company or any Company Related Party as a result of the failure of the Transactions to be consummated or for a breach or failure to perform hereunder or otherwise, other than in the circumstances in which the Company is entitled to receive the Buyer Termination Fee in accordance with Section 7.03(b) (in which case Section 7.03(b) will apply), and without limiting the Buyer’s obligations in respect of the Company Recovery Costs, the Company agrees, on behalf of itself and the Company Related Parties, that the maximum aggregate monetary liability of Buyer and the Buyer Related Parties (including under or in respect of any Ancillary Document, other than the Confidentiality Agreement), if any, will be limited to the amount of the Buyer Termination Fee, and in no event will the Company or any Company Related Party seek or be entitled to recover from Buyer or any Buyer Related Party, and the Company on behalf of itself and the Company Related Parties hereby irrevocably waives and relinquishes any right to seek or recover, any monetary damages in the aggregate in excess of such amount, including for the liability of Buyer for any such losses or damages arising in the case of or resulting from Fraud or Willful Breach.

ARTICLE VIII

Miscellaneous

8.01. No Survival of Representations and Warranties. None of the representations or warranties in this Agreement or in any document or instrument delivered pursuant to or in connection with this Agreement will survive the Effective Time. This Section 8.01 will not limit any covenant contained in this Agreement or in any document or instrument delivered pursuant to or in connection with this Agreement that by its terms applies in whole or in part after the Effective Time.

8.02. Amendment or Supplement. Subject to compliance with applicable Law, at any time prior to the Effective Time, this Agreement may be amended or supplemented by written agreement of the Parties; provided that any amendment or supplement to this Agreement by or on behalf of the Company will require the prior approval of the Special Committee; provided, however, that following receipt of the Company Stockholder Approval, there will be no amendment or change to the provisions hereof which by Law would require further approval by the stockholders of the Company; provided, further, that any modification or amendment of Section 7.03, this proviso of Section 8.02, Section 8.04 (solely to the extent that it relates to the Debt Financing Sources Related Parties), clause (v) of Section 8.06, Section 8.07(c) (solely to the extent that it relates to the Debt Financing Sources Related Parties), Section 8.08 (solely to the extent that it relates to the Debt Financing Sources Related Parties), Section 8.13 (solely to the extent that it relates to the Debt Financing Sources Related Parties), Section 8.15 (solely to the extent that it relates to the Debt Financing Sources Related Parties) or the definitions of Debt Commitment Letter, Debt Financing, Debt Financing Sources or Debt Financing Sources Related Parties that is adverse in any respect to the interests of the Debt Financing Sources Related Parties, will not be effective against the Debt Financing Sources Related Parties without the prior written consent of the Debt Financing Sources.

8.03. Extension of Time, Waiver, etc. At any time prior to the Effective Time, Buyer and the Company may, subject to applicable Law, (a) waive any inaccuracies in the representations and warranties of the other Party contained herein or in any document delivered pursuant hereto, (b) extend the time for the performance of any of the obligations or acts of the other Party, or (c) waive compliance by the other Party with any of the agreements contained herein applicable to such Party or, except as otherwise provided herein, waive any of such Party’s conditions; provided that any such extension or waiver by or on behalf of the Company will require the prior approval of the Special Committee; provided, however, that following receipt of the Company Stockholder Approval, there will be no waiver or extension of this Agreement that would require further approval of the stockholders of the Company. Notwithstanding the foregoing, no failure or delay by the Company or Buyer in exercising any right hereunder will operate as a waiver thereof nor will any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right hereunder. Any agreement on the part of a Party to any such extension or waiver will be valid only if set forth in an instrument in writing signed on behalf of such Party.

8.04. Assignment. Neither this Agreement nor any of the rights, interests or obligations hereunder will be assigned, in whole or in part, by operation of Law or otherwise, by any of the Parties without the prior written consent of the other Parties (such consent not to be unreasonably withheld, conditioned or delayed); provided that Buyer will have the right, without the prior written consent of the Company, to assign all or any portion of its respective rights, interests and obligations hereunder to (i) an Affiliate of Buyer or (ii) any debt financing sources (including the Debt Financing Sources) for purposes of creating a security interest herein or otherwise assigning as collateral in respect of any debt financing (including the Debt Financing), so long as, with respect to clauses (i) and (ii) above, such assignment would not result in a Buyer Material Adverse Effect. No assignment by any Party will relieve such Party of any of its obligations hereunder. Subject to the immediately preceding two sentences, this Agreement will be binding upon, inure to the benefit of, and be enforceable by, the Parties and their respective successors and permitted assigns. Any purported assignment not permitted under this Section 8.04 will be null and void.

8.05. Counterparts. This Agreement may be executed in counterparts (including by facsimile or electronic mail), each of which will be deemed to be an original but all of which taken together will constitute one and the same agreement and will become effective when one or more counterparts have been signed by each Party and delivered to the other Parties.

8.06. Entire Agreement; No Third-Party Beneficiaries. This Agreement, together with the Ancillary Documents, constitute the entire agreement and supersedes all other prior agreements and understandings, both written and oral, among the Parties and their Affiliates, or any of them, with respect to the subject matter hereof and thereof. This Agreement is not intended to and does not confer upon any Person other than the Parties any rights or remedies hereunder, except for (i) if the Effective Time occurs, the right of the Company’s stockholders to receive the Merger Consideration as provided in Section 2.01(c) and dividends or distributions in accordance with the first sentence of Section 2.02(c), in each case, without interest, (ii) if the Effective Time occurs, the right of the holders of Equity-Based Awards to receive such amounts as provided for in Article II, (iii) if the Effective Time occurs, the rights of the Indemnitees set forth in Section 5.06 of this Agreement, (iv) the rights of the Company Related Parties set forth in Section 7.03(a), and the rights of the Buyer Related Parties set forth in Section 7.03(b), which are intended for the benefit of, and will be enforceable by the applicable Company Related Parties and Buyer Related Parties, (v) each Debt Financing Sources Related Party will be an express third-party beneficiary of, and may enforce, Section 7.03, the proviso in Section 8.02, Section 8.04 (solely to the extent that it relates to the Debt Financing Sources Related Parties), this clause (v) of Section 8.06, Section 8.07(c) (solely to the extent that it relates to the Debt Financing Sources Related Parties), Section 8.08 (solely to the extent that it relates to the Debt Financing Sources Related Parties) and Section 8.13 (solely to the extent that it relates to the Debt Financing Sources Related Parties) and Section 8.15 (solely to the extent that it relates to the Debt Financing Sources Related Parties), and (vi) the Related Parties will be express third-party beneficiaries of Section 8.13.

8.07. Governing Law; Jurisdiction.

(a) This Agreement will be governed by, and construed in accordance with, the laws of the State of Delaware applicable to contracts executed in and to be performed entirely within that State, regardless of the laws that might otherwise govern under any applicable conflict of Laws principles.

(b) All Actions arising out of or relating to this Agreement or the Transactions will be heard and determined in the Court of Chancery of the State of Delaware (or, if the Court of Chancery of the State of Delaware declines to accept jurisdiction over any Action, any state or federal court within the State of Delaware). The Parties hereby irrevocably (i) submit to the exclusive jurisdiction and venue of such courts in any such Action, (ii) waive the defense of an inconvenient forum or lack of jurisdiction to the maintenance of any such Action, (iii) agree to not attempt to deny or defeat such jurisdiction by motion or otherwise request for leave from any such court, and (iv) agree to not bring any Action arising out of or relating to this Agreement or the Transactions in any court other than the Court of Chancery of the State of Delaware (or, if the Court of Chancery of the State of Delaware declines to accept jurisdiction over any Action, any state or federal court within the State of Delaware), except for Actions brought to enforce the judgment of any such court. The consents to jurisdiction and venue set forth in this Section 8.07(b) will not constitute general consents to service of process in the State of Delaware and will have no effect for any purpose except as provided in this paragraph and will not be deemed to confer rights on any Person other than the Parties. Each Party agrees that service of process upon such Party in any Action arising out of or relating to this Agreement will be effective if notice is given by overnight courier at the address set forth in Section 8.09 of this Agreement. The Parties agree that a final judgment in any such Action will be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by applicable Law; provided, however, that nothing in the foregoing will restrict any Party’s rights to seek any post-judgment relief regarding, or any appeal from, a final trial court judgment.

(c) Notwithstanding anything to the contrary in this Agreement, each Party acknowledges and irrevocably agrees (i) that any legal action, whether at law or in equity, whether in contract or in tort or otherwise, involving any Debt Financing Sources Related Party arising out of or relating to this Agreement or the Debt Commitment Letter, the Debt Financing or any of the agreements entered into in connection with the Debt Financing or any of the transactions contemplated hereby or thereby or the performance thereunder will be subject to the exclusive jurisdiction of the Supreme Court of the State of New York, County of New York, or, if under applicable Law exclusive jurisdiction is vested in Federal courts, the United States District Court for the Southern District of New York sitting in the Borough of Manhattan, New York, New York (and appellate courts thereof) and each Party irrevocably submits itself and its property with respect to any such legal action to the exclusive jurisdiction of such court, (ii) that, except to the extent relating to the interpretation of any provisions in this Agreement or the Equity Commitment Letters, any such legal action, whether at law or in equity, whether in contract or in tort or otherwise, against any Debt Financing Sources Related Party will be governed by, construed and enforced in accordance with, the Laws of the State of New York (without giving effect to any conflicts of law principles that would result in the application of the laws of another state), (iii) not to bring or permit any of their Affiliates to bring any such legal action in any other court, (iv) that service of process upon any such Party in any such action or proceeding shall be effective if notice is given in accordance with Section 8.09 and irrevocably waives, to the fullest extent that it may effectively do so, the defense of an inconvenient forum to the maintenance of such action in any such court, and (v) that the provisions of this Section 8.07(c) will apply to any such legal action.

8.08. Specific Enforcement.

(a) The Parties agree that, subject to Section 8.08(b), irreparable damage for which monetary relief (including any fees payable pursuant to Section 7.03), even if available, would not be an adequate remedy, would occur in the event that any provision of this Agreement is not performed in accordance with its specific terms or is otherwise breached, including if the Parties fail to take any action required of them hereunder to consummate this Agreement and the Transactions. Subject to the following sentence and Section 8.08(b), the Parties acknowledge and agree that (i) the Parties will be entitled to an injunction or injunctions, specific performance or other equitable relief to prevent breaches of this Agreement and to enforce specifically the terms and provisions hereof in the courts described in Section 8.07(b) without proof of damages or otherwise, this being in addition to any other remedy to which they are entitled under this Agreement, (ii) the provisions set forth in Section 7.03 (A) are not intended to and do not adequately compensate for the harm that would result from a breach of this Agreement and (B) will not be construed to diminish or otherwise impair in any respect any Party’s right to specific enforcement, and (iii) the right of specific enforcement is an integral part of the Transactions and without that right neither the Company nor Buyer would have entered into this Agreement. The Parties acknowledge and agree that any Party seeking an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement in accordance with this Section 8.08 will not be required to provide any bond or other security in connection with any such order or injunction.

(b) Notwithstanding the foregoing, it is explicitly agreed that the right of the Company to seek an injunction, specific performance or other equitable remedies in connection with enforcing Buyer’s obligation to cause the Equity Financing to be funded and Buyer’s obligations to effect the Closing is subject to the requirements that (i) all of the conditions set forth in Section 6.01 and Section 6.02 were satisfied or waived (to the extent such waiver is permitted by applicable Law) at the time when Closing would have been required to occur pursuant to Section 1.02 (other than those conditions that by their nature are to be satisfied at the Closing, but provided that such conditions were then capable of being satisfied when Closing would have been required to occur), (ii) the Debt Financing has been funded in full in accordance with the terms thereof or will be funded in full in accordance with the terms thereof at the Closing if the Equity Financing is funded at the Closing, and (iii) the Company has irrevocably confirmed in writing that if the Equity Financing and Debt Financing are funded, then it would take such actions required of it by this Agreement to cause the Closing to occur. The Parties agree not to assert that a remedy of specific enforcement is unenforceable, invalid, contrary to Law or inequitable for any reason, and not to assert that a remedy of monetary damages would provide an adequate remedy or that the Parties otherwise have an adequate remedy at law.

(c) Any determination by the Company to commence, settle, compromise or otherwise resolve any Action to enforce this Agreement, any Equity Commitment Letter or any Limited Guarantee against Buyer, any Investor Group Member, any Equity Commitment Party, any Guarantor or any of their respective Affiliates or Representatives will require the prior approval of the Special Committee.

8.09. Notices. All notices, requests and other communications to any Party hereunder will be in writing and will be deemed given if delivered personally, emailed (provided no “bounce back” or similar message of non-delivery is received) or sent by overnight courier (providing proof of delivery) to the Parties at the following addresses:

If to Buyer, to it at:

Motown Acquisition Corp.

c/o Penske Corporation

2555 Telegraph Road

Bloomfield Hills, Michigan 48302

Attention: Lawrence N. Bluth

Email: [***]

with a copy to:

Mitsui & Co., Ltd.

2-1, Otemachi 1-chome,

Chiyoda-ku, Tokyo 100-8631, Japan

Attention: Hidenori Yamano

Email: [***]

with copies (which will not constitute notice) to:

Jones Day

250 Vesey Street

New York, New York 10281

Attention: Andrew M. Levine; Zachary R. Brecheisen; Justin T. Roland

Email: [***]; [***]; [***]

and

Debevoise & Plimpton LLP

66 Hudson Boulevard East

New York, New York 10001

Attention: William D. Regner; Ezra Borut

Email: [***]; [***]

If to the Company, to it at:

Penske Automotive Group, Inc.

2555 Telegraph Road

Bloomfield Hills, Michigan 48302

Attention: Shane Spradlin

Email: [***]

with a copy (which will not constitute notice) to:

Paul, Weiss, Rifkind, Wharton & Garrison LLP

1285 Avenue of the Americas

New York, New York 10019-6064

Attention: Jeffrey D. Marell; Lara B. Solomons

Email: [***]; [***]

and

Freshfields US LLP

3 World Trade Center

175 Greenwich Street

New York, NY 10007

Attention: Damien Zoubek; Oliver Board

Email: [***]; [***]

or such other address or email address as such Party may hereafter specify by like notice to the other Parties. All such notices, requests and other communications will be deemed received on the date of actual receipt by the recipient thereof.

8.10. Severability. If any term, condition or other provision of this Agreement is determined by a court of competent jurisdiction to be invalid, illegal or incapable of being enforced by any rule of Law or public policy, all other terms, provisions and conditions of this Agreement will nevertheless remain in full force and effect. Upon such determination that any term, condition or other provision is invalid, illegal or incapable of being enforced, the Parties will negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible to the fullest extent permitted by applicable Law.

8.11. Fees and Expenses. Subject to Section 5.14(f), Section 5.14(g) and Section 5.15(e), whether or not the Transactions are consummated, all fees and expenses incurred in connection with this Agreement and the Transactions will be paid by the Party incurring or required to incur such fees or expenses, except as otherwise expressly set forth in this Agreement; provided that expenses incurred in connection with the filing fees for the Transaction Regulatory Filings, the Proxy Statement, Schedule 13E-3 and printing and mailing the Proxy Statement, Schedule 13E-3 and any reasonable out-of-pocket expenses incurred by the Company in connection with the performance of its obligations pursuant to Sections 5.12 and 5.13 (such fees and expenses collectively, the “Transaction Expenses”) will be borne by the Parties as follows:

(a) In the event the Merger is consummated, the Transaction Expenses will be borne by the Surviving Corporation.

(b) In the event the Merger is not consummated, the Transaction Expenses relating to the Transaction Regulatory Filings will be borne and paid by Buyer when due and the Transaction Expenses relating to the preparation, printing and mailing of the Proxy Statement and the Schedule 13E-3 and the Company Stockholders Meeting will be borne and paid by the Company when due.

8.12. Interpretation.

(a) When a reference is made in this Agreement to an Article, Section, Exhibit or Schedule, such reference will be to an Article, Section, Exhibit or Schedule of or to this Agreement unless otherwise indicated. The table of contents and headings contained in this Agreement are for reference purposes only and will not affect in any way the meaning or interpretation of this Agreement. Whenever the words “include,” “includes” or “including” are used in this Agreement, they will be deemed to be followed by the words “without limitation”. The words “hereof,” “herein” and “hereunder” and words of similar import when used in this Agreement refer to this Agreement as a whole and not to any particular provision of this Agreement. The words “date hereof” when used in this Agreement refer to the date of this Agreement. The word “will” shall be construed to have the same meaning as the word “shall.” The terms “or,” “any” and “either” are not exclusive. The word “extent” in the phrase “to the extent” means the degree to which a subject or other thing extends, and such phrase does not mean simply “if.” The words “made available to Buyer” and words of similar import refer to documents (i) posted to the “Project Motown” electronic datasite hosted by the Company prior to the date hereof or (ii) delivered in person or electronically to Buyer or their respective Representatives, in each case, at least two Business Days prior to the date of this Agreement. Any reference to “ordinary course of business” will be interpreted to mean “ordinary course of business consistent with past practice.” All accounting terms used and not defined herein have the respective meanings given to them under GAAP. All terms defined in this Agreement have the defined meanings when used in any document made or delivered pursuant hereto unless otherwise defined therein. The definitions contained in this Agreement are applicable to the singular as well as the plural forms of such terms and to the masculine as well as to the feminine and neuter genders of such term. Any statute defined or referred to herein means such statute as from time to time amended, modified or supplemented, including by succession of comparable successor statutes and references to all attachments thereto and instruments incorporated therein. References herein to any statute includes all rules and regulations promulgated thereunder. Unless otherwise specifically indicated, all references to “dollars” or “$” refer to the lawful money of the U.S. References to a Person are also to its permitted assigns and successors.

(b) The Parties have participated jointly in the negotiation and drafting of this Agreement and, in the event an ambiguity or question of intent or interpretation arises, this Agreement will be construed as jointly drafted by the Parties and no presumption or burden of proof will arise favoring or disfavoring any Party by virtue of the authorship of any provision of this Agreement.

8.13. Non-Recourse. Each Party agrees, on behalf of itself and its Related Parties, that all Actions (whether in Contract or in tort, in Law or in equity or otherwise, or granted by statute or otherwise, whether by or through attempted piercing of the corporate, limited partnership or limited liability company veil or any other theory or doctrine, including alter ego or otherwise) that may be based upon, in respect of, arise under, out or by reason of, be connected with, or relate in any manner to (a) this Agreement, any of the Ancillary Documents or any of the transactions contemplated hereunder or thereunder (including the Financing), (b) the negotiation, execution or performance of this Agreement or any of the Ancillary Documents (including any representation or warranty made in connection with, or as an inducement to, this Agreement or any of the Ancillary Documents), (c) any breach or violation of this Agreement or any of the Ancillary Documents, and (d) any failure of any of the transactions contemplated hereunder or thereunder (including the Financing) to be consummated, in each case, may be made only against (and are those solely of) the Persons that are, in the case of this Agreement, expressly identified as Parties, and in the case of the Ancillary Documents, Persons expressly identified as parties to such Ancillary Documents and in accordance with, and subject to the terms and conditions of, this Agreement or such Ancillary Documents, as applicable. Notwithstanding anything in this Agreement or any of the Ancillary Documents to the contrary, each Party agrees, on behalf of itself and its Related Parties, that no recourse under this Agreement or any of the Ancillary Documents or in connection with any of the transactions contemplated hereunder (including the Financing) or under any Ancillary Document will be sought or had against any other Person, including any Related Party and any Debt Financing Sources Related Party, and no other Person, including any Related Party and any Debt Financing Sources Related Party, will have any liabilities or obligations (whether in Contract or in tort, in Law or in equity or otherwise, or granted by statute or otherwise, whether by or through attempted piercing of the corporate, limited partnership or limited liability company veil or any other theory or doctrine, including alter ego or otherwise), for any claims, causes of action, obligations or liabilities arising under, out of, in connection with or related in any manner to the items in the immediately preceding clauses (a) through (d), it being expressly agreed and acknowledged that no personal liability or losses whatsoever will attach to, be imposed on or otherwise be incurred by any of the aforementioned, as such, arising under, out of, in connection with or related in any manner to the items in the immediately preceding clauses (a) through (d), in each case, except for claims (subject, with respect to the following clauses (ii) and (iii), in all respects to the limitations set forth in this Agreement) (i) against any Person that is party to, and solely pursuant to the terms and conditions of, the Confidentiality Agreement, (ii) against each Guarantor under, if, as and when required pursuant to the terms and conditions of the Limited Guarantee, (iii) against each Equity Commitment Party for specific performance of its obligation to fund its committed portions of the Equity Financing solely in accordance with, and pursuant to the terms and conditions of the applicable Equity Commitment Letter and Section 8.08, (iv) against the Company and Buyer solely in accordance with, and pursuant to the terms and conditions of, this Agreement, or (v) against any Person expressly identified as a party to any Ancillary Document in accordance with the terms and conditions thereof. For the avoidance of doubt, notwithstanding that a Guarantor, Equity Commitment Party, Investor Group Member or any other Person may constitute a Buyer Related Party, no such Person will have any liability or obligation under or in connection with this Agreement or the Transactions, whether or not arising from or based upon any allegation or claim of Fraud or breach of this Agreement, except solely to the extent expressly provided in an Ancillary Document to which such Person is a party and subject in all respects to the limitations, conditions and other terms thereof. Notwithstanding anything to the contrary in this Agreement or any of the Ancillary Documents, (i) no Related Party or Debt Financing Sources Related Party will be responsible or liable for any special, consequential, exemplary, punitive or indirect damages that may be alleged as a result of this Agreement or any of the Ancillary Documents or any of the transactions contemplated hereunder or thereunder (including the Financing), or the valid termination or abandonment of any of the foregoing, (ii) none of the Debt Financing Sources Related Parties shall have any liability to the Company, any of its Subsidiaries or any of their respective Affiliates or representatives relating to or arising out of this Agreement, the Debt Commitment Letter, the Debt Financing or any of the agreements entered into in connection with the Debt Financing or any of the transactions contemplated hereby or thereby or the performance thereunder (subject to the last sentence of this Section 8.13), and (iii) the Company (on behalf of itself and its Affiliates) (A) waives any and all rights or claims against the Debt Financing Sources Related Parties in connection with this Agreement, the Debt Commitment Letter, the Debt Financing or any of the agreements entered into in connection with the Debt Financing or any of the transactions contemplated hereby or thereby or the performance thereunder, whether in law or equity, contract, tort or otherwise, and (B) agrees not to commence (and if commenced agrees to dismiss or otherwise terminate) any proceeding or legal or equitable action against any Debt Financing Sources Related Party in connection with this Agreement, the Debt Commitment Letter, the Debt Financing or any of the agreements entered into in connection with the Debt Financing or any of the transactions contemplated hereby or thereby or the performance thereunder. Notwithstanding the foregoing, nothing in this Section 8.13 shall in any way limit or modify the rights and obligations of the Buyer under this Agreement or any Debt Financing Source’s obligations to the Buyer under the Debt Commitment Letter or definitive agreement entered into in connection with the Debt Financing (it being understood that following consummation of the Merger, nothing in this Section 8.13 shall limit the rights of any of the parties to any such definitive agreement).

8.14. Disclosure Letter. The Company Disclosure Letter and the Buyer Disclosure Letter may include items and information the disclosure of which is not required either in response to an express disclosure requirement of this Agreement or as an exception to one or more provisions set forth in this Agreement. Inclusion of any such items or information in the Company Disclosure Letter or the Buyer Disclosure Letter will not be deemed to be an acknowledgement or agreement that any such item or information (or any non-disclosed item or information of comparable or greater significance) is “material” or that it has had or would have a Material Adverse Effect or a Buyer Material Adverse Effect, as the case may be. Further, nothing in the Company Disclosure Letter or the Buyer Disclosure Letter will be deemed to be an admission by any Party to any third Person of any matter whatsoever, including any violation or breach of law or contract. The Parties agree that the disclosure set forth in any particular section of the Company Disclosure Letter will be deemed to be an exception to or disclosure for the purposes of, as applicable, (a) the representations or warranties of the Company in the corresponding Section of this Agreement and (b) any other representation or warranty of the Company that is set forth in this Agreement to the extent the relevance of such exception or disclosure is reasonably apparent on its face.

8.15. WAIVER OF JURY TRIAL. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE IT HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT AND ANY OF THE AGREEMENTS DELIVERED IN CONNECTION HEREWITH (INCLUDING THE DEBT FINANCING) OR THE TRANSACTIONS OR THEREBY. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (B) IT UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF SUCH WAIVER, (C) IT MAKES SUCH WAIVER VOLUNTARILY, AND (D) IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVER AND CERTIFICATIONS IN THIS SECTION 8.15.

8.16. Special Committee Approval. Notwithstanding anything to the contrary herein, prior to the Effective Time, none of the following actions shall be taken by or on behalf of the Company without the prior approval or authorization of the Special Committee: (i) any amendment, restatement, modification or supplement of any provision of this Agreement or any Ancillary Document, (ii) any waiver of any right or provision under this Agreement or any Ancillary Document or extension of the time for performance of any obligation hereunder or thereunder, (iii) any determination as to whether any condition set forth in Article VI has been satisfied (and any disputes relating thereto or arising therefrom), (iv) any exercise or enforcement or defense of any exercise or enforcement of any rights under this Agreement or any Ancillary Document, (v) any termination of this Agreement or any Ancillary Document, (vi) any action under this Agreement or any Ancillary Document that expressly requires the approval of the Special Committee or is expressly contemplated to be taken by the Special Committee, (vii) any action in respect of the declaration or payment by the Company of any dividends or distributions contemplated by Section 5.01(b)(iii), and (viii) agreeing to do any of the foregoing.

ARTICLE IX

Definitions

9.01. Definitions.

(a) As used in this Agreement, the following terms have the meanings ascribed thereto below:

“Acceptable Confidentiality Agreement” means a legally binding confidentiality agreement entered into by the Company from and after the date of this Agreement that contains confidentiality provisions that are not materially less favorable in the aggregate to the Company than those contained in the Confidentiality Agreement, except that such confidentiality agreement (i) need not include explicit or implicit standstill provisions or otherwise restrict the making of or amendment or modification to Takeover Proposals, (ii) will not prohibit the Company from complying with Section 5.02 or contain terms that would restrict in any manner the Company’s ability to consummate the Merger Transactions, and (iii) will not include any provision calling for an exclusive right to negotiate with the Company prior to the valid termination of this Agreement.

“Action” means any legal, regulatory or administrative proceeding, suit, demand, arbitration or other action.

“Adverse Recommendation Change” has the meaning set forth in Section 5.02(d).

“Affiliate” means, as to any Person, any other Person that, directly or indirectly, controls, or is controlled by, or is under common control with, such Person. For this purpose, “control” (including, with its correlative meanings, “controlled by” and “under common control with”) means the possession, directly or indirectly, of the power to direct or cause the direction of management or policies of a Person, whether through the ownership of securities or partnership or other ownership interests, by contract or otherwise; provided that, for purposes of this Agreement and the Ancillary Documents, the Investor Group Members will not be deemed Affiliates of the Company and its Subsidiaries and the Company and its Subsidiaries will not be deemed Affiliates of the Investor Group Members.

“Agreement” has the meaning set forth in the Preamble.

“AI” means artificial intelligence.

“AI Technology” means any and all machine learning, deep learning, and other AI technologies, including generative AI, AI models (including large language models) and neural networks.

“Alternative Financing” has the meaning set forth in Section 5.14(j).

“Ancillary Documents” means the Company Disclosure Letter, Buyer Disclosure Letter, Confidentiality Agreement, each Limited Guarantee, each Commitment Letter, the Support Agreements, and any other agreement, document, instrument or certificate contemplated by this Agreement or to be executed by Buyer, the Company or their respective Affiliates, as applicable, in connection with the consummation of the Transactions.

“Announcement” has the meaning set forth in Section 5.04.

“Anti-Corruption Laws” means the U.S. Foreign Corrupt Practices Act of 1977, the United Kingdom Bribery Act of 2010, Laws adopted in furtherance of the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, or any other applicable Laws relating to combating domestic or international bribery and corruption.

“Antitrust Laws” means the Sherman Act, the Clayton Act, the HSR Act, the Federal Trade Commission Act, all applicable foreign antitrust Laws and all other applicable Laws issued by a Governmental Authority that are designed or intended to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade or lessening of competition through merger or acquisition.

“Anti-Money Laundering Laws” means all applicable financial recordkeeping, reporting and registration requirements, including the money laundering statutes of any jurisdiction applicable to the Company or its Subsidiaries and any related or similar rules, regulations or guidelines, issued, administered or enforced by any Governmental Authority from time to time.

“Appraisal Shares” has the meaning set forth in Section 2.05(a).

“Audited Balance Sheet Date” has the meaning set forth in Section 3.06(c).

“Book-Entry Share” has the meaning set forth in Section 2.01(c).

“Business Day” means a day except a Saturday, a Sunday or other day on which the banking institutions in the City of New York, New York, Detroit, Michigan or Tokyo, Japan are authorized or required by Law or executive order to be closed.

“Buyer” has the meaning set forth in the Preamble.

“Buyer Disclosure Letter” means the confidential disclosure letter delivered by Buyer to the Company concurrently with or prior to the execution of this Agreement.

“Buyer Material Adverse Effect” means any effect, change, event or occurrence that, individually or in the aggregate, would or would reasonably be expected to prevent or delay beyond the Outside Date, materially interfere with, materially hinder or materially impair (i) the consummation by Buyer of any of the Transactions on a timely basis or (ii) the compliance by Buyer with its obligations under this Agreement.

“Buyer Recovery Costs” has the meaning set forth in Section 7.03(a).

“Buyer Related Parties” has the meaning set forth in Section 7.03(b).

“Buyer Termination Fee” has the meaning set forth in Section 7.03(b).

“Bylaws” has the meaning set forth in Section 1.05(b).

“Capitalization Date” has the meaning set forth in Section 3.02(a).

“Certificate of Merger” has the meaning set forth in Section 1.03.

“CFIUS” means the Committee on Foreign Investment in the United States.

“C.F.R.” means the U.S. Code of Federal Regulations.

“Charter” has the meaning set forth in Section 1.05(a).

“Claim” has the meaning set forth in Section 5.06(c).

“Closing” has the meaning set forth in Section 1.02.

“Closing Date” has the meaning set forth in Section 1.02.

“Code” means the Internal Revenue Code of 1986.

“Collective Bargaining Agreement” means each collective bargaining, works council or other labor union Contract or labor arrangement covering any employee of the Company or any of its Subsidiaries, excluding any national, industry or similar generally applicable Contract or arrangement.

“Commitment Letters” means the Equity Commitment Letters and the Debt Commitment Letter.

“Company” has the meaning set forth in the Preamble.

“Company Acquisition Agreement” has the meaning set forth in Section 5.02(d).

“Company Board” has the meaning set forth in the Recitals.

“Company Charter Documents” means the Company’s certificate of incorporation and bylaws, each as amended, restated or amended and restated, as the case may be, and as in effect on the date hereof.

“Company Class C Common Stock” has the meaning set forth in Section 3.02(a).

“Company Common Stock” has the meaning set forth in the Recitals.

“Company Credit Agreement” is defined in the definition of Credit Facilities.

“Company Credit Agreement Amendment” means (a) the Limited Consent and Thirteenth Amendment to the Company Credit Agreement, dated as of the date hereof, pursuant to which, among other things, the requisite Credit Agreement Financing Sources have consented to the Transactions and have agreed to a conditional increase of the commitments under the Company Credit Agreement subject to certain conditions set forth in the Company Credit Agreement and (b) any subsequent amendment, restatement, amendment and restatement, supplement, consent, waiver, commitment increase or joinder with respect to the Company Credit Agreement entered into after the date hereof pursuant to Section 5.14(b).

“Company Disclosure Letter” has the meaning set forth in Article III.

“Company Deferred Cash Award” means any deferred cash amount (including any notional investment gains or losses credited thereto) credited to a deferred fees account of a current or former director of the Company Board under the Company Non-Employee Director Compensation Plan.

“Company DSU” means each deferred stock unit credited to a deferred fees account of a current or former director of the Company Board (including, for the avoidance of doubt, any dividend equivalent units credited thereto) under the Company Non-Employee Director Compensation Plan.

“Company Group” means, collectively, the Company and its Subsidiaries.

“Company Intellectual Property” has the meaning set forth in Section 3.14(b).

“Company IT Assets” means the IT Assets owned by the Company or any of its Subsidiaries and used in the operation of the businesses of the Company or any of its Subsidiaries.

“Company KSOP” means the Penske Automotive Group Employee Stock Ownership 401(k) Plan.

“Company Lease” means any lease, sublease, sub-sublease, license or other agreement (including any amendments, assignments, guaranties or other agreements related thereto) pursuant to which the Company or any of its Subsidiaries leases, subleases, licenses, uses or occupies any Leased Real Property.

“Company Non-Employee Director Compensation Plan” means the Penske Automotive Group, Inc. Non-Employee Director Compensation Plan, as amended.

“Company Non-Voting Common Stock” has the meaning set forth in Section 3.02(a).

“Company Performance Awards” means each performance-based award granted under the 2020 Equity Plan in respect of the 2026 performance period, which has not yet been completed as of immediately prior to the Effective Time, that, if earned, are payable in Company RSAs.

“Company Plan” means each (i) “employee benefit plan” within the meaning of Section 3(3) of ERISA (whether or not subject to ERISA), (ii) stock option, stock purchase, restricted stock, restricted stock unit, performance stock, performance stock unit, long-term cash or other equity, equity-based or long-term incentive plan, program, policy or arrangement, (iii) individual employment, consulting, change-in-control, severance or retention agreement, plan, program, policy or arrangement, (iv) bonus, incentive, deferred compensation, profit-sharing, retirement, post-retirement, vacation, severance or termination pay, gross-up, medical, dental, life, restrictive covenant, relocation, clawback, cafeteria, disability, sick leave, death benefit, group insurance, employee benefit or fringe benefit agreement, plan, program, policy or arrangement, and (v) other similar agreement, plan, program, policy or arrangement (whether or not subject to ERISA and whether written or unwritten, formal or informal), in each of clauses (i)-(v), that is sponsored, administered, maintained or contributed to by the Company or any of its Subsidiaries, to which the Company or any of its Subsidiaries is obligated to sponsor, administer, maintain or contribute or to which a member of the Company Group is a party, other than (A) any “multiemployer plan” (as defined in Section 3(37) or 4001(a)(3) of ERISA) or (B) any agreement, plan, program or policy mandated by applicable Law or Governmental Authority.

“Company Preferred Stock” has the meaning set forth in Section 3.02(a).

“Company Products” means the products, applications or services offered, performed, licensed, sold, distributed or otherwise made commercially available by the Company or any of its Subsidiaries.

“Company Recommendation” has the meaning set forth in the Recitals.

“Company Recovery Costs” has the meaning set forth in Section 7.03(b).

“Company Related Parties” has the meaning set forth in Section 7.03(a).

“Company RSA” means each restricted share of Company Common Stock granted under the 2020 Equity Plan.

“Company RSU” means each restricted stock unit (including any dividend equivalent units credited thereto) with respect to Company Common Stock granted under the 2020 Equity Plan.

“Company SEC Documents” means all reports, schedules, forms, statements or other documents (including exhibits) filed or furnished by the Company with the SEC since January 1, 2024 and publicly available, in each case as such materials have been supplemented, modified or amended since the date of filing.

“Company Securities” has the meaning set forth in Section 3.02(b).

“Company Stockholder Approval” has the meaning set forth in Section 3.04(d).

“Company Stockholders” has the meaning set forth in the Recitals.

“Company Stockholders Meeting” has the meaning set forth in Section 5.13(a).

“Company Subsidiary Securities” has the meaning set forth in Section 3.03(b).

“Company Termination Fee” has the meaning set forth in Section 7.03(a).

“Comparability Period” has the meaning set forth in Section 5.07(a).

“Compliant” means, with respect to the Required Financial Information, that (i) such Required Financial Information is, and remains, compliant in all material respects with all applicable requirements of Regulations S-K and S-X under the Securities Act applicable to offerings of debt securities on a registration statement on Form S-1 that are applicable to such Required Financial Information (other than such provisions for which compliance is not customary in a Rule 144A offering of non-convertible high yield debt securities and, for the avoidance of doubt, provisions to the extent solely applicable to any Excluded Information, and other than any information, financial statements, financial data or other materials not required to be included in the Required Financial Information or that constitute Excluded Information) and does not contain any untrue statement of a material fact regarding the Company Group, or omit to state any material fact regarding the Company Group necessary in order to make such Required Financial Information not misleading under the circumstances (giving effect to all supplements and updates provided therewith), (ii) with respect to any audited financial statements included in the Required Financial Information, (a) the Company’s independent public accountants have not withdrawn their audit opinion with respect to such audited financial statements (unless a new unqualified audit opinion has been issued in respect thereof by such accountants or another nationally recognized independent registered public accounting firm reasonably acceptable to Buyer), and (b) the Company has not publicly announced its intention to restate, and the Company’s independent public accountants have not informed the Company that a restatement of, any such financial statements is required (it being understood that the Required Financial Information will be deemed Compliant if such restatement is completed and the applicable Required Financial Information has been amended and updated, or the Company or its independent public accountants have concluded that no restatement is required), and (iii) the financial statements and other historical financial information included in such Required Financial Information would not be deemed stale or otherwise be unusable under customary practices for offerings and private placements of non-convertible high-yield debt securities under Rule 144A promulgated under the Securities Act and are sufficient to permit the Company’s independent public accountants to issue a customary “comfort” letter (including “negative assurance” comfort and change period comfort, in each case, solely to the extent customary and available under applicable professional standards and the applicable independent auditors’ customary policies for the applicable type, timing and structure of the Debt Financing) to the Debt Financing Sources when customarily required to be delivered, subject to their completion of customary procedures (and such accountants have confirmed they are prepared to issue a comfort letter subject to their completion of customary procedures).

“Confidentiality Agreement” has the meaning set forth in Section 5.05.

“Continuing Employee” has the meaning set forth in Section 5.07(a).

“Contract” means any loan or credit agreement, indenture, debenture, note, bond, mortgage, deed of trust, lease, sublease, license, hedge, derivative, contract or other agreement.

“Conversion Ratio” means the quotient of (i) the quotient of (A) the aggregate Equity Contributions divided by (B) the Merger Consideration (expressed as a price per share of Company Common Stock), divided by (ii) the total number of issued and outstanding shares of Buyer held by the Investor Group immediately prior to the Effective Time.

“Copyright” is defined in the definition of Intellectual Property.

“Credit Agreement Financing Sources” is defined in the definition of Credit Facilities.

“Credit Facilities” means (i) the Fifth Amended and Restated Credit Agreement, dated as of May 1, 2015 as amended, restated, supplemented or otherwise modified from time to time including by that certain Limited Consent and Thirteenth Amendment to Fifth Amended and Restated Credit Agreement, dated as of the date hereof, among the Company, Mercedes-Benz Financial Services USA LLC, Toyota Motor Credit Corporation and Daimler Truck Financial Services USA, LLC (the “Company Credit Agreement,” and the lenders, agents, arrangers and other financing sources party thereto from time to time (including any that become party thereto pursuant to any Company Credit Agreement Amendment or joinder), together with their respective Affiliates and their Affiliates’ respective Representatives, successors and assigns, in each case, in their capacities as such, the “Credit Agreement Financing Sources”), (ii) the Amended and Restated Revolving Facility Agreement, dated January 31, 2023, among PAG International Limited, Sytner Group Limited, National Westminster Bank plc, BMW Financial Services (GB) Limited and the other parties thereto, (iii) the Amended and Restated Revolving Loan and Security Agreement, dated as of June 29, 2021, between Penske Automotive Group, Inc. and Toyota Motor Credit Corporation, as amended or otherwise modified from time to time, (iv) Working Capital Loan Agreement (Revolving), dated as of 18 November 2022, by and between Penske Australia Pty Ltd and Daimler Truck Financial Services Australia Pty Ltd, (v) Revolving Line of Credit Promissory Note, dated December 12, 2025, in the principal amount of $200,000,000, made by PTG Mississauga Enterprises Limited Partnership, payable on demand to Daimler Truck Financial Services Canada Corporation, and (vi) Commercial Mortgage Facility Agreement, dated as of May 31, 2023, by and among Sytner Vehicles Limited, Sytner Group Limited, and Toyota Financial Services (UK) plc, as amended.

“Data Privacy Laws” means any Law related to the Processing of Personal Information.

“Data Security and Privacy Requirements” means, collectively, all of the following to the extent relating to the Processing of Personal Information or otherwise relating to privacy, data security or security breach notification requirements and applicable to the Company Group or to the conduct of the businesses of the Company Group: (i) the Company Group’s public-facing privacy policies; (ii) all applicable Data Privacy Laws and binding regulatory guidance, rules and requirements promulgated thereunder, each as amended from time to time; and (iii) applicable provisions of contracts by which the Company Group is bound.

“D&O Tail Policy” has the meaning set forth in Section 5.06(d).

“Dealership Agreement” means any franchise, dealer, sales and service or similar agreement or arrangement between a member of the Company Group, on the one hand, and any Manufacturer or any of its Affiliates, on the other hand, or arising under any applicable dealer franchise or motor vehicle dealer Law.

“Dealer Arrangements” means (i) Framework Agreements, Dealership Agreements, shipping, floorplan, wholesale, inventory, demonstrator, loaner, courtesy, service, rental or fleet vehicle financing arrangements or any other similar agreements or arrangements between a member of the Company Group, on the one hand, and any Manufacturer or any of its Affiliates, on the other hand, or otherwise arising under any applicable dealer franchise or motor vehicle dealer Law; (ii) any program, agreement or arrangement between one or more members of the Company Group and a third party provider of retail customer financing; and (iii) any program, agreement or arrangement between one or more members of the Company Group and any third party providers of vehicle-related products or services sold by a member of the Company Group to customers in the ordinary course of business.

“Debt Commitment Letter” means the executed commitment letter dated as of the date hereof, from the Debt Financing Sources party thereto (including all exhibits, schedules and annexes thereto) pursuant to which the Debt Financing Sources have committed, subject to the terms and conditions set forth therein, to provide the aggregate amounts set forth therein for the purposes of funding a portion of the Financing Uses (the “Debt Financing”).

“Debt Financing” is defined in the definition of Debt Commitment Letter.

“Debt Financing Sources” means the Persons (including parties to any joinder agreement or amendments joining such Persons to the Debt Commitment Letter) that have committed to provide or arrange any debt financing contemplated by the Debt Commitment Letter or alternative debt financings in connection with the Transactions; it being understood that the Credit Agreement Financing Sources shall not be considered Debt Financing Sources in their capacities as lenders, agents, arrangers or other financing sources under the Credit Facilities (including any Company Credit Agreement Amendment).

“Debt Financing Sources Related Party” means the Debt Financing Sources together with their respective Affiliates, and the respective directors, officers, employees, partners, members, managers, agents, advisors, controlling persons and the other representatives, successors and assigns of each of the foregoing; provided that no Credit Agreement Financing Source shall be a Debt Financing Sources Related Party in its capacity as a lender, agent, arranger or other financing source under the Credit Facilities (including any Company Credit Agreement Amendment).

“Debt Offer” has the meaning set forth in Section 5.15(a).

“Debt Offer Documents” has the meaning set forth in Section 5.15(a).

“DGCL” has the meaning set forth in the Recitals.

“DOJ” means the U.S. Department of Justice.

“Domain Name” is defined in the definition of Intellectual Property.

“DTC” has the meaning set forth in Section 2.02(b)(i).

“Effective Time” has the meaning set forth in Section 1.03.

“Encumbrance” means any pledge, lien, charge, mortgage, deed of trust, security interest, lease, license, condition, covenant, restriction, hypothecation, option to purchase or lease or otherwise acquire any interest, right of first refusal or offer, conditional sale or other title retention agreement, adverse claim of ownership or use, easement, encroachment, right-of-way or other title defect, third-party right or encumbrance of any kind or nature.

“Enforceability Exception” has the meaning set forth in Section 3.04(a).

“Environmental Law” means all present applicable Laws, as amended (including common law) as of the Closing Date that relate to the protection of the environment, natural resources, human health and safety of employees or the public (in each case, as it relates to exposure to Hazardous Materials) or to any emission, discharge, generation, processing, storage, Release, or transportation of Hazardous Materials, including, all requirements pertaining to reporting, licensing, permitting, investigation or remediation of emissions, discharges, Release or threatened Release of Hazardous Materials into the air, surface water, ground water, or land, or relating to the processing, distribution, use, sale, treatment, storage, disposal, transport or handling of Hazardous Materials.

“Equity-Based Awards” means, collectively, Company RSUs, Company RSAs, Company Performance Awards and Company DSUs.

“Equity Commitment Letters” means the executed equity commitment letters dated as of the date hereof, from each of PC and Mitsui, including all annexes, exhibits, schedules and other attachments thereto, pursuant to which each of PC and Mitsui, respectively, has committed to provide equity financing to Buyer in an amount set forth therein (the “Equity Financing”).

“Equity Commitment Parties” has the meaning set forth in the Recitals.

“Equity Contribution” means, with respect to any Investor Group Member, the amount of cash, if any, actually contributed by such Investor Group Member to the paid-in capital of Buyer immediately prior to the Effective Time in exchange for shares of common stock of Buyer, excluding, for the avoidance of doubt, any debt financing.

“Equity Financing” is defined in the definition of Equity Commitment Letters.

“Equity Plans” means, collectively, the Penske Automotive Group, Inc. 2020 Equity Incentive Plan (the “2020 Equity Plan”) and the Amended and Restated Penske Automotive Group, Inc. Non-Employee Director Compensation Plan dated December 9, 2020, in each case as may be amended from time to time.

“ERISA” means the Employee Retirement Income Security Act of 1974.

“ERISA Affiliate” means any Person or entity that, together with the Company or any of its Subsidiaries, is treated as a single employer under Section 414(b), (c), (m) or (o) of the Code.

“ESOP Component Plan” has the meaning set forth in Section 5.18(b).

“Exchange Act” means the Securities Exchange Act of 1934.

“Exchange Fund” has the meaning set forth in Section 2.02(a).

“Excluded Benefits” has the meaning set forth in Section 5.07(a).

“Excluded Information” means (i) pro forma financial statements, (ii) information regarding any post-Closing or pro forma cost savings, synergies, capitalization, ownership or other post-Closing pro forma adjustments, desired to be incorporated into any information used in connection with the Debt Financing, (iii) description of all or any portion of the Financing, including any “description of notes,” “plan of distribution” or any information customarily provided by a lead arranger, underwriter or initial purchaser in a customary information memorandum or offering memorandum for a secured bank financing or offering of high-yield debt securities, as applicable, (iv) risk factors relating to all or any component of the Financing, (v) any other information required by Rules 3-09, 13-01 or 13-02 of Regulation S-X under the Securities Act, (vi) any compensation discussion and analysis or other information required by Item 402 and Item 601 of Regulation S-K under the Securities Act and any executive compensation and related person disclosure rules related to SEC Release Nos. 33-8732A, 34-54302A and IC-27444A or any other information customarily excluded from an offering memorandum for private placements of any non-convertible high-yield debt securities under Rule 144A promulgated under the Securities Act or (vii) any information with respect to any Person other than the Company Group and the Joint Venture Entities.

“Excluded Shares” means all shares of Company Common Stock held by one or more of the Investor Group Members immediately prior to the Effective Time.

“Export-Import Laws” means applicable Laws relating to export, re-export, transfer or import controls, including the Export Administration Regulations administered by the U.S. Department of Commerce, the International Traffic in Arms Regulations and customs and import laws administered by U.S. Customs and Border Protection.

“FDI Authorities” means CFIUS, the Minister of Industry and other Canadian Governmental Authorities charged with administering the Investment Canada Act, and any other comparable Governmental Authorities with jurisdiction to review the Transactions.

“FDI Laws” means any applicable regulations and rules promulgated under applicable Laws that are designed or intended to screen, prohibit, restrict or regulate foreign investments into such jurisdiction or country, including on the basis of cultural, public order or safety, privacy, national or economic security grounds.

“Financing” means the Debt Financing and the Equity Financing.

“Financing Costs” has the meaning set forth in Section 5.14(g).

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“Financing Uses” has the meaning set forth in Section 4.05(f).

“Framework Agreement” means any framework, agency, distribution or similar agreement or arrangement between a member of the Company Group, on the one hand, and any Manufacturer or any of its Affiliates, on the other hand, that governs or relates to the ownership, operation, acquisition, or disposition of multiple dealerships, franchises or similar arrangements by the Company Group, excluding Dealership Agreements.

“Fraud” means the actual, knowing and intentional common law fraud (and not a constructive fraud, negligent misrepresentation or omission or any form of fraud premised on recklessness or negligence) of any Person as finally determined by a court of competent jurisdiction in the making of the representations and warranties set forth in Article III and Article IV.

“FTC” means the U.S. Federal Trade Commission.

“Fundamental Representations” has the meaning set forth in Section 6.02(a).

“GAAP” means generally accepted accounting principles in the U.S., consistently applied.

“Government Contract” means any material Contract between a member of the Company Group, on the one hand, and (i) a Governmental Authority or (ii) any prime contractor of a Governmental Authority that, to the Knowledge of the Company, is acting in its capacity as a prime contractor; provided that a task, purchase, work or delivery order under a Government Contract will not constitute a separate Government Contract, for purposes of this definition, but will be part of the Government Contract to which it relates.

“Governmental Authority” means any government, court, regulatory or administrative agency, commission or authority or other legislative, executive or judicial governmental entity (in each case including any self-regulatory organization), whether federal, state or local, domestic, foreign or multinational, including each of the Transportation Regulators.

“Guarantor” has the meaning set forth in the Recitals.

“Hazardous Materials” means any substance, material, or waste defined, listed or regulated as “hazardous,” “toxic,” a “pollutant,” “contaminant,” or words of similar import under any Environmental Law, including per- and polyfluoroalkyl substances.

“HSR Act” means the Hart-Scott-Rodino Antitrust Improvements Act of 1976.

“Indebtedness” means, with respect to any Person, (i) indebtedness for borrowed money, whether current or funded, secured or unsecured, (ii) debt securities (including notes, bonds, debentures or other similar instruments) or warrants, (iii) any other rights to acquire any debt securities of the Company or any of its Subsidiaries, (iv) guarantees of any of the indebtedness or the debt securities of another Person or any “keep well” or other agreement to maintain any financial statement condition of another Person, or (v) obligations with respect to leases required to be accounted for as capital or finance leases in accordance with GAAP or recorded as capital or finance leases in the consolidated financial statements of the Company.

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“Indemnitee” has the meaning set forth in Section 5.06(a).

“Indemnitees” has the meaning set forth in Section 5.06(a).

“Intellectual Property” means all of the following, in each case in any jurisdiction throughout the world: (i) any patent or patent applications, patentable inventions, together with, all extensions, adjustments, renewals, divisions, continuations, continuations-in-part, reissues and re-examinations thereof (collectively, “Patents”); (ii) any trademark, service marks, trade dress, logos, brand names, corporate names, taglines, and any other indicia of origin, together with the goodwill associated with any of the foregoing, and any application, registration or renewal thereof (collectively, “Trademarks”); (iii) any social media identifiers (such as an Instagram® handle) and related accounts; (iv) any and all copyrightable works of authorship, including registered and unregistered copyrights in both published works and unpublished works, and all copyright applications or registrations thereof (collectively, “Copyrights”); (v) any internet domain name and uniform resource locators (“Domain Name”); and (vi) any trade secret, confidential know-how, concepts, methods, processes, specifications, inventions, databases, customer lists, mailing lists or business plans, and other confidential and proprietary information (collectively, “Trade Secrets”).

“Intervening Event” means any event, effect, development or change in circumstances with respect to the Company Group that (i) becomes known, or the consequences of which become known, to the Special Committee after execution and delivery of this Agreement and prior to the Company Stockholder Approval and (ii) was not reasonably foreseeable (with respect to substance or timing) by the Special Committee as of or prior to the execution and delivery of this Agreement; provided that (A) the receipt of a Takeover Proposal or a Superior Proposal or any inquiry or communications or matters relating thereto, (B) the fact, in and of itself, that the Company meets or exceeds any internal or analysts’ expectations or projections, or (C) any changes or lack thereof, in and of themselves, after the date hereof in the market price or trading volume of the shares of Company Common Stock will not, in each case, be deemed to constitute an Intervening Event.

“Investor Group” means Penske Corporation, a Delaware corporation (“PC”), Penske Automotive Holdings Corp., a Delaware corporation and wholly owned subsidiary of PC (“PAHC” and, together with PC, collectively the “Penske Parties” and each a “Penske Party”), Mitsui & Co., Ltd., a Japanese company (“Mitsui”), and Mitsui & Co. (U.S.A.), Inc., a New York corporation and wholly owned subsidiary of Mitsui (“Mitsui USA” and, together with Mitsui, collectively the “Mitsui Parties” and each a “Mitsui Party”). Each of the foregoing members of the Investor Group being an “Investor Group Member.”

“Investor Group Affiliates” means the executive officers and directors of any Investor Group Member.

“Investor Group Member” has the meaning set forth in the definition of “Investor Group.”

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“IRS” means the U.S. Internal Revenue Service.

“IT Assets” means computer and other information technology systems, including hardware, software, computer systems, databases, electronic data processing, information, record keeping, communications, telecommunications, networks, interfaces, platforms, servers, peripherals, including any outsourced systems and processes, and documentation, reference and resource materials relating thereto, owned, licensed, leased or otherwise used by the Company Group.

“Joint Venture Entity” has the meaning set forth in Section 3.03(c).

“Judgment” has the meaning set forth in Section 3.08.

“JV Interest” has the meaning set forth in Section 3.03(c).

“Knowledge” means (i) with respect to the Company, the actual knowledge after reasonable inquiry, as of the date of this Agreement, of the individuals listed on Section 9.01(a)-1(A) of the Company Disclosure Letter, and (ii) with respect to Buyer, the actual knowledge after reasonable inquiry, as of the date of this Agreement, of any of the individuals listed on Section 9.01(a)-1(B) of the Buyer Disclosure Letter.

“KSOP Amendment” has the meaning set forth in Section 5.18(c).

“KSOP Adequate Consideration Opinion” has the meaning set forth in Section 5.18(b).

“Law” means any law (including common law), statute, ordinance, act, code, rule, directive, determination or regulation, enacted, issued or promulgated by any Governmental Authority.

“Leased Real Property” means any real property that is leased, subleased, sub-subleased or licensed by any member of the Company Group from any third party as lessee, sublessee or other occupant with an aggregate base rental payment for the calendar year ending December 31, 2026 in excess of $4,000,000.

“Limited Guarantee” has the meaning set forth in the Recitals.

“Mitsui” has the meaning set forth in the definition of “Investor Group.”

“Mitsui Parties” has the meaning set forth in the definition of “Investor Group.”

“Mitsui USA” has the meaning set forth in the definition of “Investor Group.”

“Malicious Code” has the meaning set forth in Section 3.15(c).

“Manufacturers” means any Person that manufactures, assembles, produces, distributes or imports motor vehicles or motor vehicle parts and with which a member of the Company Group has a franchise, dealer, sales and service, agency or distribution relationship.

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“Material Adverse Effect” means any effect, change, event or occurrence that has, or would be reasonably expected to have, a material adverse effect on the business, results of operations or financial condition of the Company Group, taken as a whole; provided, however, that none of the following, and no effect, change, event or occurrence arising out of, or resulting from, the following, will constitute or be taken into account in determining whether a Material Adverse Effect has occurred, is continuing or would reasonably be expected to occur: any effect, change, event or occurrence (A) generally affecting the industry in which the Company Group operates or the economy, political conditions, credit or financial or capital markets generally, in the U.S. or elsewhere in the world, including changes in interest or exchange rates, monetary policy or inflation, or (B) to the extent arising out of, resulting from or attributable to (1) changes or prospective changes in Law or in GAAP or in accounting standards, in each case after the date of this Agreement, or any changes in the interpretation or enforcement of any of the foregoing, in each case after the date of this Agreement, or any changes in general legal, regulatory, political or social conditions, in each case after the date of this Agreement, (2) the negotiation, execution, announcement or performance of this Agreement or the consummation of the Transactions (other than any effect, change, event or occurrence resulting from a breach of this Agreement by the Company Group) (other than for purposes of any representation or warranty contained in Section 3.04(e) and Section 3.05), (3) acts of war (whether or not declared), military activity, sabotage, civil disobedience, terrorism, cyberattacks, or any escalation or worsening of any such acts of war (whether or not declared), military activity, sabotage, civil disobedience, terrorism or cyberattacks, (4) pandemics, earthquakes, fires, floods, hurricanes, tornados or other natural disasters, weather-related events, casualty events, force majeure events or other comparable events, (5) any action taken by the Company Group that is required by this Agreement or at Buyer’s written request, (6) any change or prospective change in the Company’s credit ratings, (7) any decline in the market price, or change in trading volume, of the shares of the Company, (8) any failure to meet any internal or public projections, forecasts, guidance, estimates, milestones, budgets or internal or published financial or operating predictions of revenue, earnings, cash flow or cash position, (9) any Transaction Litigation or stockholder litigation (or a derivative or similar claim) or other Action brought in connection with this Agreement or any of the Transactions, including breach of fiduciary duty or inadequate disclosure claims, or (10) any breach of this Agreement by Buyer (it being understood that the exceptions in clauses (6), (7) and (8) will not prevent or otherwise affect a determination that the underlying cause of any such change, decline or failure referred to therein (if not otherwise falling within any of the exceptions provided by clause (A) and clauses (B)(1) through (9)) is a Material Adverse Effect); provided further, however, that any effect, change, event or occurrence referred to in clause (A) or clauses (B)(1), (3) or (4) may be taken into account in determining whether there has been, or would reasonably be expected to be, a Material Adverse Effect to the extent such effect, change, event or occurrence has a disproportionate adverse effect on the Company Group, taken as a whole, as compared to other participants in the industry in which the Company Group operates (in which case only the incremental disproportionate impact or impacts may be taken into account in determining whether there has been, is occurring or would reasonably be expected to be, a Material Adverse Effect).

“Material Contract” has the meaning set forth in Section 3.17(a).

“Maximum Amount” has the meaning set forth in Section 5.06(d).

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“Merger” has the meaning set forth in the Recitals.

“Merger Consideration” has the meaning set forth in Section 2.01(c).

“Merger Transactions” means, collectively, the Transactions, including the Merger, but excluding the Financing.

“Moelis” has the meaning set forth in Section 3.21.

“Notice Period” has the meaning set forth in Section 5.02(e).

“NYSE” has the meaning set forth in Section 3.05.

“OFAC” is defined in the definition of Sanctioned Person.

“Open Source Software” means any computer software program whose source code is published and made available under a license meeting the Open Source Definition (as promulgated by the Open Source Initiative) or the Free Software Definition (as promulgated by the Free Software Foundation).

“Other Required Buyer Filing” has the meaning set forth in Section 5.12(g).

“Other Required Company Filing” has the meaning set forth in Section 5.12(f).

“Outside Date” has the meaning set forth in Section 7.01(b)(i).

“Owned Company Intellectual Property” means all Intellectual Property owned or purported to be owned by the Company Group that is material to the conduct of the business of the Company Group, taken as a whole, as currently conducted.

“Owned Real Property” means all land, together with all buildings, structures, improvements and fixtures located thereon, and all easements and other rights and interests appurtenant thereto, owned by any member of the Company Group.

“PAHC” has the meaning set forth in the definition of “Investor Group”.

“PC” has the meaning set forth in the definition of “Investor Group”.

“Penske Parties” has the meaning set forth in the definition of “Investor Group”.

“Party” has the meaning set forth in the Preamble.

“Patent” is defined in the definition of Intellectual Property.

“Paying Agent” has the meaning set forth in Section 2.02(a).

“Permits” has the meaning set forth in Section 3.09(b).

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“Permitted Encumbrances” means (i) easements, rights-of-way, encroachments, restrictions, conditions and other similar non-monetary Encumbrances incurred or suffered in the ordinary course of business and which, individually or in the aggregate, do not and would not reasonably be expected to materially impair the use or utility of the applicable real property or otherwise materially impair the present or reasonably contemplated business operations at such location, (ii) zoning, entitlement, building and other land use regulations imposed by Governmental Authorities having jurisdiction over such real property which are not violated by the current use and operation of such real property or any violation of which would not materially impair the use or utility of the applicable real property or otherwise materially impair the present or reasonably contemplated business operations at such location, (iii) Encumbrances under any Owned Real Property or Leased Real Property with respect to any rights of first refusal, rights of first offer, purchase options or conditional sale or other title retention agreement, (iv) any Encumbrance, defect, irregularity or imperfection of title that is or would be disclosed by an accurate survey or current title report or that is reflected as an exception in any title insurance policy or title commitment, each of which could not materially impair the present or reasonably contemplated business operations at such location, (v) Encumbrances for Taxes not delinquent or the amount or validity of which are being contested in good faith by appropriate proceedings and for which appropriate reserves have been established in accordance with GAAP, (vi) mechanics’, materialmen’s, carriers’, workmen’s, warehouseman’s, repairmen’s, landlords’ and similar Encumbrances arising or incurred in the ordinary course of business for amounts not yet due and payable, or the amount or validity of which is being contested in good faith by appropriate proceedings by the Company Group and for which adequate reserves have been established in accordance with GAAP, (vii) pledges or deposits under workmen’s compensation Laws, unemployment insurance Laws or similar legislation, or good-faith deposits in connection with bids, tenders, Contracts (other than for the payment of Indebtedness) or leases to which such entity is a party, or deposits to secure public or statutory obligations of such entity or to secure surety or appeal bonds to which such entity is a party, or deposits as security for contested Taxes, in each case incurred or made in the ordinary course of business, (viii) Encumbrances which are imposed on the underlying fee or other interest in real property subject to a Company Lease, (ix) licenses granted to third parties in the ordinary course of business, (x) Encumbrances discharged at or prior to the Effective Time, (xi) Encumbrances set forth in Section 9.01(a)-3 of the Company Disclosure Letter, (xii) Encumbrances securing Indebtedness or other obligations outstanding under the Credit Facilities or under any other credit, term loan, real estate, mortgage, deed of trust or note purchase facility of the Company Group in effect on the date of this Agreement, and any renewal, extension, refinancing or replacement of any of the foregoing not prohibited by this Agreement, (xiii) Encumbrances securing floorplan, wholesale, inventory, demonstrator, loaner, courtesy, service, rental or fleet vehicle financing arrangements (including any such arrangements with any Manufacturer or any of its finance Affiliates), and Encumbrances on vehicles, parts or other inventory held on consignment, bailment or similar arrangements, in each case, in the ordinary course of business, (xiv) purchase money Encumbrances, Encumbrances securing capitalized or finance lease obligations and Encumbrances securing insurance premium financing, in each case incurred in the ordinary course of business, and precautionary Uniform Commercial Code or other similar filings in respect of operating leases, consignments or bailments, (xv) Encumbrances, rights of first refusal, rights of first offer, options or rights to purchase, buy-sell rights, repurchase rights, capital and working capital requirements, restrictions on the pledge or transfer of equity interests or assets and other similar rights or restrictions arising under any Dealer Arrangement, (xvi) bankers’ liens, rights of setoff and Encumbrances arising in the ordinary course of business in favor of depositary banks or securities intermediaries under customary deposit account, cash management, netting or pooling arrangements, and Encumbrances securing obligations under hedging or other derivative arrangements entered into in the ordinary course of business and not for speculative purposes, (xvii) Encumbrances, holdbacks, chargeback obligations and reserve arrangements arising in the ordinary course of business in respect of customer deposits or arrangements with finance, insurance, extended service contract, warranty or similar providers, (xviii) transfer restrictions and other Encumbrances on the equity or assets of any Joint Venture Entity set forth in any joint venture agreement or in the organizational documents of any Joint Venture Entity, (xix) restrictions on transfer imposed by applicable federal, state or foreign securities Laws, and (xx) such other non-monetary Encumbrances that do not materially detract from the value of or materially impair the existing use of the asset or property affected by such Encumbrance.

106

“Person” means an individual, corporation, limited liability company, partnership, joint venture, association, trust, unincorporated organization or any other entity, including a Governmental Authority.

“Personal Information” means any (i) information that identifies or could reasonably be used to identify an individual, and (ii) any data that is defined as personal information, personal data, personally identifying information or equivalent term under any applicable Data Privacy Laws.

“Processing” means the access, collection, use, processing, storage, sharing, distribution, transfer, disclosure, destruction or disposal of Personal Information.

“Proxy Statement” has the meaning set forth in Section 3.05.

“Recharacterized Plan” has the meaning set forth in Section 5.18(c).

“Registered Company Intellectual Property” means all Patent issuances and applications therefor, Trademark registrations and applications therefor, Copyright registrations and applications therefor and Domain Name registrations included in the Owned Company Intellectual Property.

“Related Party” means a Company Related Party or a Buyer Related Party, as applicable.

“Release” means any spilling, emitting, emptying, escaping, pouring, leaking, pumping, injecting, disposal, dumping, discharging, migrating or leaching into the environment (including indoor and outdoor air, soil, sediment, surface water and groundwater).

“Representatives” means, with respect to any Person, its officers, directors, employees, consultants, agents, financial advisors, investment bankers, attorneys, accountants, other advisors, Affiliates and other representatives.

107

“Required Financial Information” means (i) audited annual and unaudited interim historical financial statements, audit reports and other historical financial data of the Company Group of the type and form customarily included in an offering memorandum for a private placement of non-convertible high-yield debt securities pursuant to Rule 144A promulgated under the Securities Act and required by the Debt Commitment Letter as in effect on the date of this Agreement, including applicable comparison periods and (ii) (A) such other historical financial data and other information regarding the Company Group as may be reasonably requested by Buyer solely to the extent customarily included in (I) such an offering memorandum or (II) marketing documents used to syndicate credit facilities of the type contemplated by the Debt Commitment Letter and required by the Debt Commitment Letter as in effect on the date of this Agreement or (B) as otherwise necessary to permit the Company’s independent public accountants (and any other accountant to the extent that financial statements audited or reviewed by such accountants are or would be included in such offering memorandum) to issue customary “comfort” (including “negative assurance” comfort and change period comfort, in each case, solely to the extent customary and available under applicable professional standards and the applicable independent auditors’ customary policies for the applicable type, timing and structure of the Debt Financing), together with drafts of customary comfort letters that such independent public accountants are prepared to deliver upon the “pricing” of any high-yield bonds being issued in connection with the Debt Financing, in each case with respect to the historical financial information to be included in such offering memorandum, in each case of clauses (i) and (ii), assuming that such offering or syndication of the credit facilities were consummated at the same time during the Company’s fiscal year as such offering or syndication will be made, (iii) solely to the extent obtainable through the Company Group’s compliance with Section 5.14(a)(v), and subject in all respects to customary practice, applicable auditor policies and the Company Group’s reasonable best efforts obligations thereunder, customary auditors’ consents and draft customary comfort letters with respect to historical financial information of the Company Group included in any offering memorandum used in connection with the Debt Financing and (iv) the authorization letters referred to in Section 5.14(a)(vii). Notwithstanding anything to the contrary in clauses (i) and (ii) of this definition, Required Financial Information will not include any Excluded Information. For the avoidance of doubt, no comfort letter or certificate will be required with respect to any Buyer-prepared pro forma information, synergies or financing terms.

“Required Regulatory Approvals” has the meaning set forth in Section 6.01(b).

“Requisite Stockholder Approval” has the meaning set forth in Section 3.04(d).

“Restraints” has the meaning set forth in Section 6.01(a).

“Sanctioned Jurisdiction” means any country or region that is the subject of a comprehensive country-wide or region-wide Sanctions including Cuba, Iran, North Korea, Syria (prior to July 1, 2025), and the Crimea region, so-called Donetsk People’s Republic, and so-called Luhansk People’s Republic of Ukraine.

“Sanctioned Person” means any Person who is the target of Sanctions, including by virtue of being (i) listed on any Sanctions-related list of designated or blocked persons, including the list of Specially Designated Nationals and Blocked Persons maintained by the U.S. Department of the Treasury’s Office of Foreign Assets Control (“OFAC”), (ii) a Governmental Authority of, resident in, or organized under the Laws of a Sanctioned Jurisdiction, or (iii) 50% or more owned, directly or indirectly, by any of the foregoing.

108

“Sanctions” means any applicable economic or financial sanctions or trade embargoes administered or enforced by (i) the U.S. government, including by OFAC and the U.S. Department of State, (ii) the United Nations Security Council, (iii) the European Union or any member state, (iv) His Majesty’s Treasury, or (v) any other relevant sanctions authority.

“Sarbanes-Oxley Act” means the U.S. Sarbanes-Oxley Act of 2002.

“Schedule 13E-3” has the meaning set forth in Section 5.12(a).

“SEC” has the meaning set forth in Section 3.05.

“Secretary of State of Delaware” has the meaning set forth in Section 1.03.

“Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.

“Senior Subordinated Notes” has the meaning set forth in Section 5.15(a).

“Senior Subordinated Notes Indenture” has the meaning set forth in Section 5.15(a).

“Share Certificate” has the meaning set forth in Section 2.01(c).

“Significant Manufacturer” means the five largest Manufacturers, based on dealership revenue of the Company Group with such Manufacturers in fiscal year 2025.

“Solvent” has the meaning set forth in Section 4.07.

“Special Committee” has the meaning set forth in the Recitals.

“Special Committee Recommendation” has the meaning set forth in the Recitals.

“Subsidiary”, when used with respect to any Person, means (i) any corporation, limited liability company, partnership, association, trust or other entity of which securities or other ownership interests representing more than 50% of the ordinary voting power (or, in the case of a partnership, more than 50% of the general partnership interests) are, as of such date, owned by such Person or one or more Subsidiaries of such Person or by such Person and one or more Subsidiaries of such Person or (ii) of which such Person or one of its Subsidiaries is a general partner or manager; provided that, for purposes of this Agreement and the Ancillary Documents, the Company and its Subsidiaries will not be deemed to be Subsidiaries of any Investor Group Member.

109

“Superior Proposal” means a bona fide written Takeover Proposal that did not result from a material breach of Section 5.02(a) made after the date of this Agreement by a third Person (with references in the definition of Takeover Proposal to 20% being deemed to be replaced with references to 50%) that the Company Board (acting on the recommendation of the Special Committee) or the Special Committee determines in good faith, after consultation with its outside legal counsel, and after taking into account such legal, financial, regulatory, likelihood of consummation and other aspects of such proposal as the Company Board (acting on the recommendation of the Special Committee) or the Special Committee deems relevant, contemplates a transaction that is reasonably capable of being consummated in accordance with its terms and if so consummated, would result in a transaction that is more favorable to the Company Stockholders, including the Unaffiliated Company Stockholders, from a financial point of view than the Merger (after taking into account any revisions to the terms and conditions of this Agreement proposed by Buyer pursuant to Section 5.02(e)).

“Support Agreements” has the meaning set forth in the Recitals.

“Surviving Corporation” has the meaning set forth in the Recitals.

“Takeover Law” has the meaning set forth in Section 3.20(b).

“Takeover Proposal” means any inquiry, proposal, offer or indication of interest (other than an inquiry, proposal, offer or indication of interest by Buyer or the Investor Group) relating to (i) a merger, joint venture, partnership, exclusive license, consolidation, dissolution, liquidation, tender offer, share exchange, recapitalization, reorganization, spin-off, plan of arrangement, asset purchase, business combination, acquisition or any other similar transaction (or series of related transactions) involving the Company or any of its Subsidiaries by any third Person or group or (ii) a direct or indirect acquisition, exchange, transfer or other similar transaction (or series of related transactions) by any third Person or group of assets or equity securities of the Company or any of its Subsidiaries that, in the case of clauses (i) or (ii), if consummated would result in any third Person or group, directly or indirectly, becoming the beneficial owner of 20% or more of the (A) total voting power of any class of equity securities of the Company or (B) consolidated net revenues, consolidated net income or consolidated total assets of the Company in each case of the foregoing clauses (A) and (B) of this definition, after giving effect to the consummation of the transaction contemplated by such proposal, offer, inquiry or indication of interest.

“Takeover Proposal Notice” has the meaning set forth in Section 5.02(e).

“Tax Returns” mean any reports, returns, declarations, elections, disclosures, estimates, information returns, filings, claims for refund or statements filed or required to be filed with a Governmental Authority in connection with Taxes, including any schedules or attachments thereto, and any amendments to any of the foregoing.

“Taxes” means all taxes, imposts, levies, fees, withholdings or other like assessments or charges, in each case in the nature of a tax, imposed by a Governmental Authority, together with all interest, assessments, penalties and additions imposed with respect to such amounts, including taxes imposed on, or measured by, income, franchise, profits or gross receipts, and ad valorem, value added, capital gains, sales, goods and services, use, real or personal property, capital stock, license, branch, payroll, estimated, withholding, employment, social security (or similar), unemployment, compensation, utility, severance, production, excise, stamp, occupation, premium, windfall profits, and transfer and gains taxes.

110

“Trade Secret” is defined in the definition of Intellectual Property.

“Trademark” is defined in the definition of Intellectual Property.

“Transaction Expenses” has the meaning set forth in Section 8.11.

“Transaction Litigation” has the meaning set forth in Section 5.08(a).

“Transaction Regulatory Filing” means, collectively, all regulatory filings required to be made pursuant to the HSR Act, any other Antitrust Laws, and the laws and regulations administered by the FDI Authorities.

“Transactions” means the transactions contemplated by this Agreement, including the Merger.

“Transportation Regulators” means any U.S. federal, state, local or non-U.S. Governmental Authority that has jurisdiction over the licensing, registration, permitting, supervision or regulation of motor vehicle dealers, motor vehicle franchises, motor vehicle sales, leasing, servicing or repair operations, vehicle auctions, vehicle wholesale activities, vehicle titling or registration, consumer motor vehicle financing or leasing, fleet sales or related automotive retail operations, including any state motor vehicle department, motor vehicle commission, dealer licensing board, department of transportation, department of revenue or similar Governmental Authority.

“Treasury Regulations” means the final and temporary Treasury regulations issued under the Code.

“Trustee” has the meaning set forth in Section 5.15(a).

“Unaffiliated Company Stockholder” means the holders of the outstanding Company Common Stock, excluding (a) the Investor Group and the Investor Group Affiliates and their respective Affiliates and family members, (b) those members of the Company Board who are not members of the Special Committee, and (c) any Person that the Company has determined to be an “officer” of the Company within the meaning of Section 16a-1(f) of the Exchange Act.

“U.S.” means United States of America.

“Willful Breach” means a breach of any representation or warranty or failure to perform or comply with any covenant, in each case that is the consequence of a deliberate action or omission (including a failure to cure circumstances) by a Party with the knowledge that the taking of, or failure to take, such act would, or would reasonably be expected to, result in a breach of this Agreement.

[signature page follows]

111

IN WITNESS WHEREOF, the Parties have caused this Agreement to be duly executed and delivered as of the date first above written.

MOTOWN ACQUISITION CORP.

	by
		/s/ J. Patrick Conroy
		Name: J. Patrick Conroy
		Title: Vice President

[Signature Page to Agreement and Plan of Merger]

IN WITNESS WHEREOF, the Parties have caused this Agreement to be duly executed and delivered as of the date first above written.

MOTOWN ACQUISITION CORP.

	by
		/s/ Hidenori Yamano
		Name: Hidenori Yamano
		Title: Vice President

[Signature Page to Agreement and Plan of Merger]

IN WITNESS WHEREOF, the Parties have caused this Agreement to be duly executed and delivered as of the date first above written.

PENSKE AUTOMOTIVE GROUP, INC.

	by
		/s/ Michelle Hulgrave
		Name: Michelle Hulgrave
		Title: Executive Vice President and
		Chief Financial Officer

[Signature Page to Agreement and Plan of Merger]

Exhibit A

FORM OF FIFTH AMENDED AND RESTATED CERTIFICATE OF INCORPORATION OF SURVIVING CORPORATION

FIFTH AMENDED AND RESTATED

CERTIFICATE OF INCORPORATION

PENSKE AUTOMOTIVE GROUP, INC.

A STOCK CORPORATION

The present name of the Corporation is Penske Automotive Group, Inc. and the original name of the Corporation was EMCO Motor Holdings, Inc. The Corporation’s original Certificate of Incorporation was filed with the Secretary of State of Delaware on December 6, 1990.

This Fifth Amended and Restated Certificate of Incorporation has been duly adopted in accordance with the provisions of Sections 242, 245 and 251 of the General Corporation Law of the State of Delaware in connection with the merger of Motown Acquisition Corp., a Delaware corporation, with and into the Corporation, with the Corporation continuing as the surviving company of such merger.

The text of the Certificate of Incorporation of the Corporation is hereby amended and restated in its entirety to read as follows:

FIRST: The name of the corporation (the “Corporation”) is:

Penske Automotive Group, Inc.

SECOND: The address of the Corporation’s registered office in the State of Delaware is 1209 Orange Street in the City of Wilmington, County of New Castle, Delaware 19801. The name of the Corporation’s registered agent at such address is The Corporation Trust Company.

THIRD: The purpose of the Corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of the State of Delaware (the “DGCL”).

FOURTH: The total number of shares of stock which the Corporation is authorized to issue is one hundred million (100,000,000) shares of Common Stock, par value of $0.0001 per share.

FIFTH: Elections of directors need not be by written ballot except and to the extent provided in the bylaws of the Corporation.

SIXTH: The Corporation shall indemnify to the fullest extent permitted under and in accordance with the laws of the State of Delaware any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative by reason of the fact that that person is or was, or has agreed to become, a director, officer, trustee, employee or agent of the Corporation, or is or was serving at the request of the Corporation as a director, officer, trustee, employee or agent of or in any other capacity with another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by that person in connection with such action, suit or proceeding if that person acted in good faith and in a manner that person reasonably believed to be in, or not opposed to, the best interests of the Corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful.

Expenses incurred in defending a civil or criminal action, suit or proceeding shall (in the case of any action, suit or proceeding against a director or officer of the Corporation) or may (in the case of any action, suit or proceeding against a trustee, employee or agent) be paid by the Corporation in advance of the final disposition of such action, suit or proceeding as authorized by the Board of Directors upon receipt of an undertaking by or on behalf of the indemnified person to repay such amount if it shall ultimately be determined that that person is not entitled to be indemnified by the Corporation as authorized in this Article Sixth.

The indemnification and other rights set forth in this Article Sixth shall not be exclusive of any provisions with respect thereto in the bylaws of the Corporation or any other contract or agreement between the Corporation and any director, officer, trustee, employee or agent of the Corporation, shall continue as to a person who has ceased to be a director, officer, trustee, employee or agent, and shall inure to the benefit of the heirs, executors and administrators of such person. The Corporation may enter into agreements with any such person providing for indemnification and advancement of expenses greater than that provided in this Article Sixth.

Neither the amendment nor repeal of this Article Sixth, nor the adoption of any provision of this Certificate of Incorporation inconsistent with this Article Sixth, shall eliminate or reduce the effect of this Article Sixth in respect of any matter occurring before such amendment, repeal or adoption of an inconsistent provision or in respect of any cause of action, suit or claim relating to any such matter which would have given rise to a right of indemnification or right to receive expenses pursuant to this Article Sixth, if such provision had not been so amended or repealed or if a provision inconsistent therewith had not been so adopted.

SEVENTH: To the fullest extent permitted by the DGCL, as the same presently exists or may hereafter be amended, no director or officer shall be personally liable to the Corporation or to any stockholder for monetary damages for breach of fiduciary duty as a director or officer, except for any matter in respect of which (a) such director shall be liable under Section 174 of the DGCL or any amendment thereto or successor provision thereto, (b) such officer shall be liable in any action by or in the right of the Corporation, or (c) such director or officer shall be liable by reason that, in addition to any and all other requirements for liability, that person (A) shall have breached their duty of loyalty to the Corporation or its stockholders, (B) shall not have acted in good faith or, in failing to act, shall not have acted in good faith, (C) shall have acted in a manner involving intentional misconduct or a knowing violation of law or, in failing to act, shall have acted in a manner involving intentional misconduct or a knowing violation of law or (D) shall have derived an improper personal benefit.

Any repeal or modification of this Article Seventh shall not adversely affect any right or protection of a director or officer with respect to any act or omission occurring prior to such repeal or modification. If the DGCL is amended after the date of incorporation to authorize corporate action further eliminating or limiting the personal liability of directors or officers, then the liability of a director or officer of the Corporation shall be eliminated or limited to the fullest extent permitted by the DGCL, as so amended.

EIGHTH: In furtherance and not in limitation of the rights, powers, privileges and discretionary authority granted or conferred by the DGCL, the Board of Directors is expressly authorized to make, alter, amend or repeal the bylaws of the Corporation, without any action on the part of the stockholders, but the stockholders may make additional bylaws and may alter, amend or repeal any bylaw whether adopted by them or otherwise. The Corporation may in its bylaws confer powers upon the Board of Directors in addition to the foregoing and in addition to the powers and authorities expressly conferred upon the Board of Directors by applicable law.

NINTH: The Corporation reserves the right at any time and from time to time to amend, alter, change or repeal any provision contained in this Certificate of Incorporation, and other provisions authorized by the DGCL may be added or inserted, in the manner now or hereafter prescribed herein or by applicable law; and all rights, preferences and privileges of whatsoever nature conferred upon stockholders, directors or any other persons whomsoever by and pursuant to this Certificate of Incorporation in its present form or as hereafter amended are granted subject to this reservation.

TENTH: The Corporation hereby expressly states that it will not be bound or governed by, or otherwise subject to, Section 203 of the DGCL.

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ARTICLE I The Merger			2

	1.01.	The Merger	2
	1.02.	Closing	2
	1.03.	Effective Time	3
	1.04.	Effects of the Merger	3
	1.05.	Certificate of Incorporation and Bylaws of the Surviving Corporation	3
	1.06.	Directors and Officers of the Surviving Corporation	3

ARTICLE II Effect of the Merger on Capital Stock; Exchange of Certificates; and Equity-Based and Other Long-Term Incentive Awards			4

	2.01.	Effect on Capital Stock	4
	2.02.	Exchange Matters	5
	2.03.	Treatment of Equity-Based Awards	8
	2.04.	Adjustments	10
	2.05.	Appraisal Rights	10

ARTICLE III Representations and Warranties of the Company			11

	3.01.	Organization; Standing	11
	3.02.	Capitalization	12
	3.03.	Subsidiaries	13
	3.04.	Authority; Noncontravention	14
	3.05.	Governmental Approvals	16
	3.06.	Company SEC Documents; Undisclosed Liabilities; Internal Controls	16
	3.07.	Absence of Certain Changes	18
	3.08.	Legal Proceedings; Judgments	19
	3.09.	Compliance with Laws; Permits	19
	3.10.	Tax Matters	20
	3.11.	Employee Benefits	22
	3.12.	Labor Matters	24
	3.13.	Environmental Matters	25
	3.14.	Intellectual Property	26
	3.15.	Data Privacy and Technology; Information Security	27
	3.16.	Property	27
	3.17.	Contracts	28
	3.18.	Government Contracts	30
	3.19.	Insurance	30
	3.20.	No Rights Agreement; Anti-Takeover Provisions	30
	3.21.	Opinion of Financial Advisor	31
	3.22.	Brokers and Other Advisors	31
	3.23.	CFIUS	31
	3.24.	No Other Buyer Representations or Warranties	31

ARTICLE IV Representations and Warranties of Buyer			32

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	4.01.	Organization; Standing	32
	4.02.	Authority; Noncontravention	32
	4.03.	Governmental Approvals	33
	4.04.	Ownership and Operations of Buyer	33
	4.05.	Financing	33
	4.06.	Limited Guarantees	35
	4.07.	Solvency	35
	4.08.	Absence of Certain Arrangements	36
	4.09.	Brokers and Other Advisors	36
	4.10.	Ownership of Company Common Stock	36
	4.11.	Information Supplied	37
	4.12.	Legal Proceedings	37
	4.13.	No Other Company Representations or Warranties	37
	4.14.	Non-Reliance	38

ARTICLE V Additional Covenants and Agreements			38

	5.01.	Conduct of Business	38
	5.02.	Solicitation; Change in Recommendation	43
	5.03.	Efforts	46
	5.04.	Public Announcements	50
	5.05.	Access to Information; Confidentiality	51
	5.06.	Indemnification and Insurance	51
	5.07.	Employee Matters	54
	5.08.	Notification of Certain Matters; Stockholder Litigation.	55
	5.09.	Buyer Adoption of Agreement	55
	5.10.	Stock Exchange De-listing	55
	5.11.	Section 16	56
	5.12.	Preparation of the Proxy Statement	56
	5.13.	Company Stockholders Meeting	58
	5.14.	Financing	59
	5.15.	Indenture	69
	5.16.	Further Assurances	72
	5.17.	Certain Tax Matters	72
	5.18.	Company KSOP Matters	73

ARTICLE VI Conditions to the Merger			74

	6.01.	Conditions to Each Party’s Obligation To Effect the Merger	74
	6.02.	Conditions to the Obligations of Buyer	74
	6.03.	Conditions to the Obligations of the Company	75

ARTICLE VII Termination			76

	7.01.	Termination	76
	7.02.	Effect of Termination	77

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	7.03.	Termination Fee	78

ARTICLE VIII Miscellaneous			81

	8.01.	No Survival of Representations and Warranties	81
	8.02.	Amendment or Supplement	82
	8.03.	Extension of Time, Waiver, etc	82
	8.04.	Assignment	82
	8.05.	Counterparts	83
	8.06.	Entire Agreement; No Third-Party Beneficiaries	83
	8.07.	Governing Law; Jurisdiction	83
	8.08.	Specific Enforcement	85
	8.09.	Notices	85
	8.10.	Severability	87
	8.11.	Fees and Expenses	87
	8.12.	Interpretation	88
	8.13.	Non-Recourse	89
	8.14.	Disclosure Letter	90
	8.15.	WAIVER OF JURY TRIAL	90
	8.16.	Special Committee Approval	91

ARTICLE IX Definitions			91

	9.01.	Definitions	91