UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549

SCHEDULE 13D/A

Under the Securities Exchange Act of 1934
(Amendment No. 3)*


Weber Inc.
(Name of Issuer)
 
Class A common stock, par value $0.001 per share
 
(Title of Class of Securities)
 
94770D102
 
(CUSIP Number)
 
Mary Ann Todd
BDT Capital Partners, LLC
401 N. Michigan Avenue, Suite 3100
Chicago, Illinois 60611
(312) 660-7300
 
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
 
December 11, 2022
(Date of Event which Requires Filing of this Statement)

If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of §§240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box ☐.

The remainder of this cover page shall be filled out for a reporting person's initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.

The information required on the remainder of this cover page shall not be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).


CUSIP No. 94770D102

1
NAMES OF REPORTING PERSONS
 
 
BDT Capital Partners, LLC
 
 
 
 
2
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a)
☐
 
(b)
☒
 
 
3
SEC USE ONLY
 
 
 
 
 
 
 
4
SOURCE OF FUNDS (SEE INSTRUCTIONS)
 
 
OO
 
 
 
 
5
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(D) OR 2(E)
 
☐
 
 
 
 
 
6
CITIZENSHIP OR PLACE OF ORGANIZATION
 
 
Delaware
 
 
 
 
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
7
SOLE VOTING POWER
 
 
None
 
 
 
 
8
SHARED VOTING POWER
 
 
178,280,766(1)
 
 
 
 
9
SOLE DISPOSITIVE POWER
 
 
None
 
 
 
 
10
SHARED DISPOSITIVE POWER
 
 
178,280,766(1)
 
 
 
 
11
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
 
 
178,280,766(1)
 
 
 
 
12
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS)
 
☐
 
 
 
 
 
13
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
 
 
86.36%(2)
 
 
 
 
14
TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)
 
 
OO, IA
 
 
 
 

1 Consists of (i) 25,569,010 shares of Class A common stock, par value $0.001 per share (the “Class A Common Stock”), of Weber Inc., a Delaware corporation (the “Issuer”), including 11,292 shares of Class A Common Stock pursuant to an award of restricted stock units, and (ii) 152,711,756 shares of Class B common stock, par value $0.00001 per share (the “Class B Common Stock”), of the Issuer.
2 Represents the percentage of Class A Common Stock beneficially owned, as calculated in accordance with Rule 13d-3(d)(1)(i) under the Exchange Act. The shares beneficially owned represent 61.86% of the voting power of the Class A Common Stock and Class B Common Stock held by such persons voting together as a single class based upon 53,738,392 shares of Class A Common Stock issued and outstanding and 234,476,377 shares of Class B Common Stock issued and outstanding as of December 7, 2022. Each holder of Class A Common Stock and Class B Common Stock is entitled to one vote per share on all matters submitted to the Issuer’s stockholders for a vote.
CUSIP No. 94770D102

1
NAMES OF REPORTING PERSONS
 
 
BDT WSP Holdings, LLC
 
 
 
 
2
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a)
☐
 
(b)
☒
 
 
3
SEC USE ONLY
 
 
 
 
 
 
 
4
SOURCE OF FUNDS (SEE INSTRUCTIONS)
 
 
OO
 
 
 
 
5
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(D) OR 2(E)
 
☐
 
 
 
 
 
6
CITIZENSHIP OR PLACE OF ORGANIZATION
 
 
Delaware
 
 
 
 
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
7
SOLE VOTING POWER
 
 
None
 
 
 
 
8
SHARED VOTING POWER
 
 
152,731,977 (3)
 
 
 
 
9
SOLE DISPOSITIVE POWER
 
 
None
 
 
 
 
10
SHARED DISPOSITIVE POWER
 
 
152,731,977 (3)
 
 
 
 
11
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
 
 
152,731,977 (3)
 
 
 
 
12
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS)
 
☐
 
 
 
 
 
13
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
 
 
73.98%(4)
 
 
 
 
14
TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)
 
 
OO
 
 
 
 


3 Consists of (i) 20,221 shares of Class A Common Stock, including 11,292 shares of Class A Common Stock pursuant to an award of restricted stock units, and (ii) 152,711,756 shares of Class B Common Stock.
4 See footnote 2 above. The shares beneficially owned represent 52.99% of the voting power of the Class A Common Stock and Class B Common Stock held by such persons voting together as a single class.
CUSIP No. 94770D102

1
NAMES OF REPORTING PERSONS
 
 
BDT Capital Partners I-A Holdings, LLC
 
 
 
 
2
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a)
☐
 
(b)
☒
 
 
3
SEC USE ONLY
 
 
 
 
 
 
 
4
SOURCE OF FUNDS (SEE INSTRUCTIONS)
 
 
OO
 
 
 
 
5
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(D) OR 2(E)
 
☐
 
 
 
 
 
6
CITIZENSHIP OR PLACE OF ORGANIZATION
 
 
Delaware
 
 
 
 
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
7
SOLE VOTING POWER
 
 
None
 
 
 
 
8
SHARED VOTING POWER
 
 
25,548,789(5)
 
 
 
 
9
SOLE DISPOSITIVE POWER
 
 
None
 
 
 
 
10
SHARED DISPOSITIVE POWER
 
 
25,548,789(5)
 
 
 
 
11
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
 
 
25,548,789(5)
 
 
 
 
12
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS)
 
☐
 
 
 
 
 
13
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
 
 
47.54%(6)
 
 
 
 
14
TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)
 
 

 
 
 
 


5 Consists of 25,548,789 shares of Class A Common stock
6 See footnote 2 above. The shares beneficially owned represent 8.86% of the voting power of the Class A Common Stock and Class B Common Stock held by such persons voting together as a single class.

 
CUSIP No. 94770D102

1
NAMES OF REPORTING PERSONS
 
 
BDTCP GP I, LLC
 
 
 
 
2
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a)
☐
 
(b)
☒
 
 
3
SEC USE ONLY
 
 
 
 
 
 
 
4
SOURCE OF FUNDS (SEE INSTRUCTIONS)
 
 
OO
 
 
 
 
5
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(D) OR 2(E)
 
☐
 
 
 
 
 
6
CITIZENSHIP OR PLACE OF ORGANIZATION
 
 
Delaware
 
 
 
 
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
7
SOLE VOTING POWER
 
 
None
 
 
 
 
8
SHARED VOTING POWER
 
 
25,548,789(7)
 
 
 
 
9
SOLE DISPOSITIVE POWER
 
 
None
 
 
 
 
10
SHARED DISPOSITIVE POWER
 
 
25,548,789(7)
 
 
 
 
11
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
 
 
25,548,789(7)
 
 
 
 
12
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS)
 
☐
 
 
 
 
 
13
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
 
 
47.54%(8)
 
 
 
14
TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)
 
 
OO
 
 
 
 


7 See footnote 5 above.
8 See footnote 6 above.
 
CUSIP No. 94770D102

1
NAMES OF REPORTING PERSONS
 
 
BDTP GP, LLC
 
 
 
 
2
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a)
☐
 
(b)
☒
 
 
3
SEC USE ONLY
 
 
 
 
 
 
 
4
SOURCE OF FUNDS (SEE INSTRUCTIONS)
 
 
OO
 
 
 
 
5
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(D) OR 2(E)
 
☐
 
 
 
 
 
6
CITIZENSHIP OR PLACE OF ORGANIZATION
 
 
Delaware
 
 
 
 
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
7
SOLE VOTING POWER
 
 
None
 
 
 
 
8
SHARED VOTING POWER
 
 
178,280,766(9)
 
 
 
9
SOLE DISPOSITIVE POWER
 
 
None
 
 
 
 
10
SHARED DISPOSITIVE POWER
 
 
178,280,766(9)
 
 
 
 
11
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
 
 
178,280,766(9)
 
 
 
 
12
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS)
 
☐
 
 
 
 
 
13
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
 
 
86.36%(10)
 
 
 
14
TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)
 
 
OO
 
 
 
 


9 See footnote 1 above.
10 See footnote 2 above.

CUSIP No. 94770D102

1
NAMES OF REPORTING PERSONS
 
 
Byron D. Trott
 
 
 
 
2
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a)
☐
 
(b)
☒
 
 
3
SEC USE ONLY
 
 
 
 
 
 
 
4
SOURCE OF FUNDS (SEE INSTRUCTIONS)
 
 
OO
 
 
 
 
5
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(D) OR 2(E)
 
☐
 
 
 
 
 
6
CITIZENSHIP OR PLACE OF ORGANIZATION
 
 
United States of America
 
 
 
 
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
7
SOLE VOTING POWER
 
 
15,518,130(11)
 
 
 
 
8
SHARED VOTING POWER
 
 
178,280,766(12)
 
 
 
9
SOLE DISPOSITIVE POWER
 
 
15,518,130(11)
 
 
 
 
10
SHARED DISPOSITIVE POWER
 
 
178,280,766(12)
 
 
 
 
11
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
 
 
193,798,896(13)

 
 
 
12
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS)
 
☐
 
 
 
 
 
13
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
 
 
88.60%(14)
 
 
 
14
TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)
 
 
IN
 
 
 
 


11 Consists of (i) 3,236,875 shares of Class A Common Stock and (ii) 12,281,255 shares of Class B Common Stock. These securities are owned directly by Byron and Tina Trott.
12 See footnote 1 above.
13 Consists of (i) 28,805,885 shares of Class A Common Stock, including 11,292 shares of Class A Common Stock pursuant to an award of restricted stock units, and (ii) 164,993,011 shares of Class B Common Stock.
14 See footnote 2 above. The shares beneficially owned represent 67.24% of the voting power of the Class A Common Stock and Class B Common Stock held by such persons voting together as a single class.



Item 1.  Security and Issuer.

This Amendment No. 3 to Schedule 13D (“Amendment No. 3”) amends and supplements the Schedule 13D filed by the Reporting Persons on August 19, 2021, as amended and supplemented by Amendment No. 1 to Schedule 13D filed by the Reporting Persons on August 27, 2021 and Amendment No. 2 to Schedule 13D filed by the Reporting Persons on October 24, 2022 (as amended and supplemented, the “Schedule 13D”). Except as specifically provided herein, this Amendment No. 3 does not modify any of the information previously reported on the Schedule 13D. Capitalized terms used but not otherwise defined in this Amendment No. 3 shall have the meanings ascribed to them in the Schedule 13D.

Item 3. Source and Amount of Funds and Other Consideration

Item 3 of the Schedule 13D is hereby amended and supplemented to incorporate by reference the information set forth in Item 4 of this Amendment under the header “Equity Commitment Letter.”

Item 4.  Purpose of Transaction.

Item 4 of the Schedule 13D is hereby amended and supplemented by the addition of the following:

Merger Agreement

On December 11, 2022, Ribeye Parent, LLC, a Delaware limited liability company and affiliate of BDT (“Parent”), Ribeye Merger Sub, Inc., a Delaware corporation and a wholly owned subsidiary of Parent (“Merger Sub”), and the Issuer entered into an Agreement and Plan of Merger (the “Merger Agreement”), pursuant to which, among other things, on the terms and subject to the conditions set forth therein, Merger Sub will merge with and into the Issuer (the “Merger”), with the Issuer surviving, and all the outstanding shares of Class A Common Stock (other than (a) the shares of Class A Common Stock held by Holdings and Investor, (b) shares of any Common Stock canceled pursuant to the Merger Agreement and (c) any dissenting shares of Class A Common Stock) shall automatically be canceled and converted into and shall thereafter represent the right to receive an amount in cash equal to $8.05, without interest (the “Merger Consideration”). All of the shares of Class A Common Stock held by Holdings and Investor and all of the issued and outstanding shares of Class B Common Stock will be converted into an equal number of shares of Class A Common Stock and shares of Class B Common Stock, respectively, of the surviving company and remain outstanding.

Consummation of the Merger is subject to several customary conditions, including obtaining certain regulatory approvals, and the Merger Agreement contains certain termination rights for the Issuer and Parent, including the right of either party to terminate the Merger Agreement if the Merger is not consummated on or before June 11, 2023. The Merger has been approved by the written consent of the holders of (i) a majority of the outstanding shares of Class A Common Stock, (ii) a majority of (A) the outstanding shares of Class B Common Stock and (B) the shares of Class B Common Stock held by the stockholders party to the Stockholders Agreement and (iii) a majority of the outstanding shares of Class A Common Stock and shares of Class B Common Stock, voting as a single class, including Holdings, Investor and Mr. Trott, and no additional stockholder approval is required. Consummation of the Merger is not subject to a financing condition.




Prior to the execution of the Merger Agreement, a special committee (the “Special Committee”) of the board of directors (the “Board”) of the Issuer consisting only of independent and disinterested directors of the Issuer (i) determined that the Merger Agreement and the transactions contemplated thereby (the “Transactions”), including the Merger, on the terms and subject to the conditions set forth therein, are advisable, fair to and in the best interests of the Issuer and the Issuer’s stockholders (excluding the holders who approved the Transactions by written consent, including Investor, Holdings and Mr. Trott, and their respective affiliates) and (ii) recommended that the Board (a) approve the Merger Agreement and the Transactions, including the Merger, and (b) recommend adoption and approval of the Merger Agreement and the Transactions, including the Merger, to the Issuer’s stockholders.

The Board, acting upon the recommendation of the Special Committee, (i) determined that the Merger Agreement and the Transactions, including the Merger, on the terms and subject to the conditions set forth therein, are advisable, fair to and in the best interests of the Issuer and its stockholders, (ii) declared the Merger Agreement and the Transactions, including the Merger, advisable, (iii) approved the Merger Agreement, the execution and delivery by the Issuer of the Merger Agreement, the performance by the Issuer of the covenants and agreements contained therein and the consummation of the Transactions, including the Merger, on the terms and subject to the conditions contained herein and (iv) resolved to recommend adoption and approval of the Merger Agreement and the Transactions, including the Merger, to the Issuer’s stockholders.

Upon completion of the Merger, shares of Class A Common Stock will cease to be quoted on the New York Stock Exchange and will be eligible for deregistration under the Securities Exchange Act of 1934, as amended.

This summary of the Merger Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the Merger Agreement, a copy of which is filed as Exhibit 99.1 to this Amendment No. 3 and is incorporated by reference into this Item 4. A copy of the joint press release (“Press Release”) issued by the Issuer and Parent on December 12, 2022 announcing the execution of the Merger Agreement is filed as Exhibit 99.2 to this Amendment No. 3, and is incorporated by reference into this Item 4.

Equity Commitment Letter

Pursuant to the equity commitment letter, dated December 11, 2022 (the “Equity Commitment Letter”), Parent has obtained equity commitments from investment funds affiliated with BDT (the “Funds”) to provide Parent (i) at or prior to the consummation of the Merger, with an aggregate equity contribution of up to $605 million in respect of Parent’s obligation to pay the aggregate Merger Consideration at the consummation of the Merger and other amounts required to be paid by Parent in connection with the consummation of the Merger pursuant to the Merger Agreement and (ii) in the event any loan is required to be made by Parent under the Loan Agreement (as defined in Item 4), with an aggregate equity contribution of up to $350 million in respect of such obligations. In addition, the Funds have provided limited guarantees in favor of the Issuer of certain obligations of Parent and Merger Sub pursuant to the Merger Agreement to pay damages payable thereunder under certain circumstances, subject to a cap and the conditions set forth in the Equity Commitment Letter.

This summary of the Equity Commitment Letter does not purport to be complete and is qualified in its entirety by reference to the Equity Commitment Letter, a copy of which is filed as Exhibit 99.3 to this Amendment No. 3 and is incorporated by reference into this Item 4.




Loan Agreements

On December 11, 2022, Weber-Stephen Products LLC, a Delaware limited liability company and a subsidiary of the Issuer (“Weber-Stephen”), and Parent entered into a $350 million loan agreement (the “Loan Agreement”). The Loan Agreement provides for (i) an unsecured committed revolving loan facility provided by Parent in an aggregate principal amount equal to $230 million (the “Revolving Credit Facility”) and (ii) a committed delayed draw term loan facility provided by Parent in an aggregate principal amount equal to $120 million (the “Term Facility” and, together with the Revolving Credit Facility, the “Facilities”).  Each of the Facilities will mature on December 31, 2023. Loans made under the Facilities bear interest at a fixed annual rate equal to 15.0%. Interest and certain fees are payable (at Weber-Stephen’s election) in cash or “in kind”. Proceeds of the Loans made under the Facilities may be used (a) to pay fees and expenses in connection with the Loan Agreement and (b) for working capital, capital expenditures and other general corporate purposes of Weber-Stephen and its subsidiaries, including the repayment of existing revolving indebtedness.

Also on December 11, 2022, Weber-Stephen, BDT Capital Partners Fund I, L.P. and BDT Capital Partners Fund I-A, L.P., entered into an amendment to a $61.2 million term loan credit agreement (the “Shareholder Loan Agreement”), to extend the maturity date of the loans made thereunder from January 29, 2026, to January 29, 2028.

Other

In connection with the Transactions, the Issuer, Investor and Mr. Trott amended the Tax Receivable Agreement, which provides the Tax Receivable Agreement will automatically terminate in full without any payment thereunder, upon the consummation of the Merger and Investor and Mr. Trott amended the Amended and Restated Limited Liability Agreement of Weber HoldCo LLC to provide that holders of LLC Units paired with shares of Class B Common Stock will have the right to participate in the Merger by delivering a notice of participation on or prior to the date that is 11 days after the Issuer first files its preliminary Information Statement on Schedule 14C with the Securities and Exchange Commission in connection with the Merger.


Item 6. Contracts, Arrangements, Understandings or Relationships With Respect to Securities of the Issuer.

Item 6 of the Schedule 13D is hereby amended and supplemented to incorporate by reference the information set forth in Item 4 of this Amendment under the headers “Merger Agreement” and “Equity Commitment Letter”.

Item 7. Material to Be Filed as Exhibits

Exhibit 99.1          Agreement and Plan of Merger, dated December 11, 2022, by and among Weber Inc., Ribeye Parent, LLC and Ribeye Merger Sub, Inc.

Exhibit 99.2          Press Release, issued by Issuer, dated December 12, 2022.

Exhibit 99.3          Equity Commitment Letter, dated December 11, 2022, by and among Parent, BDT Capital Partners Fund 3, L.P., BDT Capital Partners Fund 3 (TE), L.P., BDT Capital Partners Fund 3 (Del), L.P. and BDT Capital Partners Fund 3 (Lux) SCSp.



SIGNATURE

After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.

Dated: December 12, 2022

 
BDT CAPITAL PARTNERS, LLC
       
 
By:
/s/ Byron D. Trott
  
   
Name:
Byron D. Trott
  
   
Title:
Chairman and Chief Executive Officer
  
         
 
BDT WSP Holdings, LLC
       
 
By:
BDT Capital Partners, LLC
  
 
Its:
Managing Member
  
       
 
By:
/s/ Byron D. Trott
  
   
Name:
Byron D. Trott
  
   
Title:
Chairman and Chief Executive Officer
 
  
 
BDT Capital Partners I-A Holdings, LLC
       
 
By:
/s/ Byron D. Trott
  
   
Name:
Byron D. Trott
  
   
Title:
Chief Executive Officer
  
   
 
BDTCP GP I, LLC
       
 
By:
/s/ Byron D. Trott
  
   
Name:
Byron D. Trott
  
   
Title:
Chief Executive Officer
  
     
 
BDTP GP, LLC
       
 
By:
/s/ Byron D. Trott
  
   
Name:
Byron D. Trott
  
   
Title:
Chief Executive Officer
  
     
 
BYRON D. TROTT
  
     
 
/s/ Byron D. Trott
  

Exhibit 99.1

EXECUTION VERSION








AGREEMENT AND PLAN OF MERGER


By and Among


WEBER INC.,


RIBEYE PARENT, LLC



and



RIBEYE MERGER SUB, INC.


Dated as of December 11, 2022







TABLE OF CONTENTS

Page


ARTICLE I
 
The Merger
     
SECTION 1.01.
Merger
2
SECTION 1.02.
Merger Effective Time
2
SECTION 1.03.
Effects of Merger
2
SECTION 1.04.
Charter and Bylaws of the Surviving Company
3
SECTION 1.05.
Board of Directors and Officers of Surviving Company
3
SECTION 1.06.
Closing
3
     
ARTICLE II
 
Effect on the Share Capital of the Constituent Entities; Payment of Consideration
     
SECTION 2.01.
Effect of Merger on the Share Capital of Merger Sub and the Company
4
SECTION 2.02.
Exchange Fund
5
SECTION 2.03.
Company Awards
7
SECTION 2.04.
Shares of Dissenting Holders
9
SECTION 2.05.
Adjustments
9
     
ARTICLE III
 
Representations and Warranties of the Company
     
SECTION 3.01.
Organization; Standing
10
SECTION 3.02.
Capitalization
10
SECTION 3.03.
Authority; Noncontravention
12
SECTION 3.04.
Governmental Approvals
14
SECTION 3.05.
Company SEC Documents; Internal Controls
14
SECTION 3.06.
Absence of Certain Changes
16
SECTION 3.07.
Legal Proceedings
16
SECTION 3.08.
Compliance with Laws; Permits
16
SECTION 3.09.
Anti-Corruption; Sanctions; Anti-Money Laundering
17
SECTION 3.10.
Tax Matters
18
SECTION 3.11.
Employee Benefits
18
SECTION 3.12.
Labor Matters
19
SECTION 3.13.
Environmental Matters
20
SECTION 3.14.
Intellectual Property
21
SECTION 3.15.
IT Assets, Data Privacy and Cybersecurity
21
SECTION 3.16.
Anti-Takeover Provisions
22
SECTION 3.17.
Contracts
22
SECTION 3.18.
Insurance
23

i


SECTION 3.19.
Opinion of Financial Advisor
24
SECTION 3.20.
Brokers and Other Advisors
24
SECTION 3.21.
Title to Properties and Assets
24
SECTION 3.22.
No Other Representations or Warranties
24
     
ARTICLE IV
 
Representations and Warranties of Parent and Merger Sub
     
SECTION 4.01.
Organization; Standing
25
SECTION 4.02.
Authority; Noncontravention; Voting Requirements
26
SECTION 4.03.
Governmental Approvals
27
SECTION 4.04.
Ownership and Operations of Merger Sub
27
SECTION 4.05.
Financing
27
SECTION 4.06.
Certain Arrangements
28
SECTION 4.07.
Solvency
29
SECTION 4.08.
Brokers and Other Advisors
29
SECTION 4.09.
No Other Representations or Warranties
29
SECTION 4.10.
Non-Reliance on Company Estimates, Projections, Forecasts, Forward-Looking Statements and Business Plans
30
SECTION 4.11.
Legal Proceedings
30
SECTION 4.12.
Ownership of Common Shares
30
     
ARTICLE V
 
Additional Covenants and Agreements
     
SECTION 5.01.
Conduct of Business
31
SECTION 5.02.
No Solicitation by the Company; Change in Recommendation
34
SECTION 5.03.
Delivery of Stockholder Consent
38
SECTION 5.04.
Preparation of Schedule 13E-3
39
SECTION 5.05.
Reasonable Best Efforts
40
SECTION 5.06.
Public Announcements
42
SECTION 5.07.
Access to Information; Confidentiality
42
SECTION 5.08.
Equity Financing
43
SECTION 5.09.
Notification of Certain Matters; Litigation
44
SECTION 5.10.
Merger Sub Shareholder Approval
44
SECTION 5.11.
Stock Exchange De-listing
44
SECTION 5.12.
Cooperation with Debt Financing
44
SECTION 5.13.
Indemnification
44
     
ARTICLE VI
     
Conditions Precedent
     
SECTION 6.01.
Conditions to Each Party’s Obligation to Effect the Merger
46
SECTION 6.02.
Conditions to Obligations of Parent and Merger Sub
46

ii

SECTION 6.03.
Conditions to Obligations of the Company
47
SECTION 6.04.
Frustration of Closing Conditions
48
     
ARTICLE VII
     
Termination
     
SECTION 7.01.
Termination
48
SECTION 7.02.
Effect of Termination
50
SECTION 7.03.
Termination Fee and Expense Reimbursement
50
     
ARTICLE VIII
     
Miscellaneous
     
SECTION 8.01.
No Survival of Representations, Warranties and Covenants
51
SECTION 8.02.
Amendment or Supplement
51
SECTION 8.03.
Extension of Time, Waiver, Etc.
51
SECTION 8.04.
Assignment
52
SECTION 8.05.
Counterparts
52
SECTION 8.06.
Entire Agreement; No Third-Party Beneficiaries
52
SECTION 8.07.
Governing Law; Jurisdiction
52
SECTION 8.08.
Specific Enforcement
53
SECTION 8.09.
WAIVER OF JURY TRIAL
53
SECTION 8.10.
Notices
54
SECTION 8.11.
Severability
55
SECTION 8.12.
Definitions
55
SECTION 8.13.
Fees and Expenses
66
SECTION 8.14.
Interpretation
67
SECTION 8.15.
No Recourse
67


Exhibit A
Form of Surviving Company Certificate of Incorporation
Exhibit B
Form of Stockholder Consent


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This AGREEMENT AND PLAN OF MERGER (this “Agreement”) dated as of December 11, 2022, among Weber Inc., a Delaware corporation (the “Company”), Ribeye Parent, LLC, a Delaware limited liability company (“Parent”), and Ribeye Merger Sub, Inc., a Delaware corporation and a wholly owned Subsidiary of Parent (“Merger Sub”).  Capitalized terms used but not defined elsewhere in this Agreement shall have the meanings set forth in Section 8.12.

WHEREAS the parties hereto intend that, on the terms and subject to the conditions set forth in this Agreement and in accordance with the Delaware General Corporation Law (the “DGCL”), Merger Sub will merge with and into the Company, with the Company surviving such merger as a wholly owned Subsidiary of Parent (the “Merger”);

WHEREAS the Board of Directors of the Company (the “Company Board”) established a special committee of the Company Board consisting only of independent and disinterested directors of the Company (the “Special Committee”) to, among other things, review, evaluate and negotiate this Agreement and the Transactions and make a recommendation to the Company Board as to whether the Company should enter into this Agreement;

WHEREAS the Special Committee has unanimously (a) determined that this Agreement and the Transactions, including the Merger, on the terms and subject to the conditions set forth herein, are advisable, fair to and in the best interests of the Company and the Public Shareholders and (b) recommended that the Company Board (i) approve this Agreement and the Transactions, including the Merger, and (ii) recommend adoption and approval of this Agreement and the Transactions, including the Merger, to the stockholders of the Company (such recommendation, the “Special Committee Recommendation”);

WHEREAS the Company Board, acting upon the Special Committee Recommendation, has (a) determined that this Agreement and the Transactions, including the Merger, on the terms and subject to the conditions set forth herein, are advisable, fair to and in the best interests of the Company and its stockholders, (b) declared this Agreement and the Transactions, including the Merger, advisable, (c) approved this Agreement, the execution and delivery by the Company of this Agreement, the performance by the Company of the covenants and agreements contained herein and the consummation of the Transactions, including the Merger, on the terms and subject to the conditions contained herein and (d) resolved to recommend adoption and approval of this Agreement and the Transactions, including the Merger, to the stockholders of the Company (such recommendation, the “Company Board Recommendation”);

WHEREAS the managing member of Parent (the “Parent Managing Member”) has (a) determined that this Agreement and the Transactions, including the Merger, on the terms and subject to the conditions set forth herein, are advisable, fair to and in the best interests of Parent, (b) declared this Agreement and the Transactions, including the Merger, advisable and (c) approved this Agreement, the execution and delivery by Parent of this Agreement, the performance by Parent of the covenants and agreements contained herein and the consummation of the Transactions, including the Merger, on the terms and subject to the conditions contained herein;

WHEREAS the Board of Directors of Merger Sub (the “Merger Sub Board”) has unanimously (a) determined that this Agreement and the Transactions, including the Merger, on the terms and subject to the conditions set forth herein, are advisable, fair to and in the best interests

of Parent (in its capacity as the sole stockholder of Merger Sub) and Merger Sub, (b) declared this Agreement and the Transactions, including the Merger, advisable, (c) approved this Agreement, the execution and delivery by Merger Sub of this Agreement, the performance by Merger Sub of the covenants and agreements contained herein and the consummation of the Transactions, including the Merger, on the terms and subject to the conditions contained herein and (d) resolved to recommend adoption and approval of this Agreement and the Transactions, including the Merger, to Parent (in its capacity as the sole stockholder of Merger Sub);

WHEREAS as promptly as practicable following the execution of this Agreement (and in any event within 24 hours), Parent will execute and deliver, in its capacity as the sole stockholder of Merger Sub, a written consent adopting and approving this Agreement and the Transactions, including the Merger (the “Merger Sub Shareholder Approval”); and

WHEREAS the Company, Parent and Merger Sub desire to make certain representations, warranties, covenants and agreements in connection with the Merger and also to prescribe various conditions to the Merger.

NOW, THEREFORE, in consideration of the foregoing, the parties hereto agree as follows:

ARTICLE I

The Merger

SECTION 1.01.          Merger.  On the terms and subject to the conditions set forth in this Agreement, and pursuant to and in accordance with the provisions of the DGCL, at the Effective Time, Merger Sub shall be merged with and into the Company, the separate corporate existence of Merger Sub shall thereupon cease, and the Company shall be the surviving company in the Merger (such surviving company, the “Surviving Company”).

SECTION 1.02.          Merger Effective Time.  As soon as practicable on the Closing Date, on the terms and subject to the conditions set forth in this Agreement, the Company, Parent and Merger Sub will cause the Merger to be consummated by filing a certificate of merger executed in accordance with, and in such form as is required by, the relevant provisions of the DGCL (the “Certificate of Merger”) and shall deliver and tender, or cause to be delivered or tendered, as applicable, any Taxes and fees and make all other filings, recordings or publications required under the DGCL in connection with the Merger.  The Merger shall become effective at the time that the Certificate of Merger is filed with the Secretary of State of the State of Delaware (the “Secretary of State”) or, to the extent permitted by applicable Law, at such later time as is agreed to by Parent and the Company prior to the filing of the Certificate of Merger and specified in the Certificate of Merger (the time at which the Merger becomes effective is herein referred to as the “Effective Time”).

SECTION 1.03.          Effects of Merger.  From and after the Effective Time, the Merger shall have the effects set forth in this Agreement and the applicable provisions of the DGCL.
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SECTION 1.04.          Charter and Bylaws of the Surviving Company.  At the Effective Time, the certificate of incorporation and bylaws of the Company, as in effect immediately prior to the Effective Time, shall be amended and restated as of the Effective Time to be in the form of the certificate of incorporation attached as Exhibit A and the bylaws of Merger Sub as in effect immediately prior to the Effective Time (collectively, the “Surviving Company Organizational Documents”), respectively, and as so amended and restated shall be the certificate of incorporation and bylaws of the Surviving Company until thereafter amended as provided therein or by applicable Law and in each case consistent with the obligations set forth in Section 5.13.

SECTION 1.05.          Board of Directors and Officers of Surviving Company.  The directors of Merger Sub immediately prior to the Effective Time shall be the directors of the Surviving Company until their respective successors are duly elected or appointed and qualified or their earlier death, resignation or removal, in each case in accordance with the Surviving Company Organizational Documents and applicable Law.  The officers of the Company in office immediately prior to the Effective Time shall be the officers of the Surviving Company until their respective successors are elected or appointed and qualified or their earlier death, resignation or removal, in each case in accordance with the Surviving Company Organizational Documents and applicable Law.

SECTION 1.06.          Closing.  The closing of the Merger (the “Closing”) shall take place at 8:00 a.m. (New York City time) on the second business day following the satisfaction or waiver (to the extent such waiver is permitted herein and by applicable Law) of the conditions set forth in Article VI (other than those conditions that by their nature are to be satisfied at the Closing, but subject to the satisfaction or waiver (to the extent such waiver is permitted herein and by applicable Law) of those conditions at such time), at the offices of Cravath, Swaine & Moore LLP, 825 Eighth Avenue, New York, New York 10019 or remotely by exchange of documents and signatures (or their electronic counterparts), unless another date, time or place is agreed to in writing by Parent and the Company.  The date on which the Closing occurs is referred to in this Agreement as the “Closing Date”.
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ARTICLE II

Effect on the Share Capital of the Constituent Entities;
Payment of Consideration

SECTION 2.01.          Effect of Merger on the Share Capital of Merger Sub and the Company.  At the Effective Time, by virtue of the occurrence of the Merger, and without any action on the part of the Company, Parent, Merger Sub or any holder of any equity thereof:

(a)          Conversion of Merger Sub Shares.  Each common share, par value $0.001 per share, of Merger Sub (each, a “Merger Sub Share”) issued and outstanding immediately prior to the Effective Time shall automatically be converted into and become a number of authorized, validly issued, fully paid and nonassessable Class A common shares, par value $0.001 per share, of the Surviving Company (each, a “Surviving Company Class A Share”) equal to (i) the number of shares of Class A common stock, par value $0.001 per share, of the Company (each, a “Class A Share”) issued and outstanding immediately prior to the Effective Time (other than any Class A Shares held by Holdings or BDT WSP Holdings, LLC (such Class A Shares, the “Holdings Shares”) or canceled pursuant to Section 2.01(b)) divided by (ii) the number of Merger Sub Shares issued and outstanding as of immediately prior to the Effective Time.

(b)          Cancelation of Certain Shares.  Each Class A Share and each share of Class B common stock, par value $0.00001 per share, of the Company (each, a “Class B Share” and, together with the Class A Shares, the “Common Shares”) issued and outstanding immediately prior to the Effective Time and owned by the Company as treasury shares shall automatically be canceled and shall cease to exist and be outstanding and no consideration shall be delivered in exchange therefor.  Each Common Share issued and outstanding immediately prior to the Effective Time and owned by any direct or indirect wholly owned Subsidiary of the Company shall automatically be canceled and shall cease to exist and be outstanding and no consideration shall be delivered in exchange therefor.

(c)          Conversion of Certain Class A Shares.

(i)          Each Class A Share that is issued and outstanding immediately prior to the Effective Time (other than (A) the Holdings Shares, (B) any Common Shares canceled pursuant to Section 2.01(b) and (C) any Dissenting Shares) (such Class A Shares, “Converted Shares”) shall automatically be canceled and converted into and shall thereafter represent the right to receive an amount in cash equal to $8.05, without interest (the “Merger Consideration”).

(ii)          As of the Effective Time, all Converted Shares shall no longer be issued and outstanding and shall automatically be canceled and shall cease to exist, and each holder of (A) a certificate that immediately prior to the Effective Time evidenced any Converted Shares (each, a “Certificate”) or (B) any Converted Shares that were uncertificated and represented by book-entry immediately prior to the Effective Time (each, a “Book-Entry Share”), in each case of clauses (A) and (B), shall cease to have any rights with respect thereto, except the right to receive the Merger Consideration (less any applicable withholding Taxes pursuant to Section 2.02(g)) pertaining to the Converted
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Shares represented by such Certificate or Book-Entry Share, as applicable, to be paid in consideration therefor in accordance with Section 2.02(b), and the right to receive dividends and other distributions in accordance with this Article II, in each case without interest.

(d)          Continuing Common Shares.  Notwithstanding anything to the contrary herein, (i) each Holdings Share that is issued and outstanding immediately prior to the Effective Time shall, as of the Effective Time, be unaffected by the Merger and continue to exist and remain outstanding as a Surviving Company Class A Share and (ii) except as provided in Section 2.01(b) each Class B Share that is issued and outstanding immediately prior to the Effective Time shall, as of the Effective Time, be unaffected by the Merger and continue to exist and remain outstanding as a Class B common share, par value $0.00001 per share, of the Surviving Company.

SECTION 2.02.          Exchange Fund.  (a)  Paying Agent.  Not less than 10 business days prior to the anticipated Closing Date, Parent shall designate a bank or trust company reasonably acceptable to the Company to act as agent (the “Paying Agent”) for the payment and delivery of the aggregate Merger Consideration in accordance with this Article II and, in connection therewith, Parent and the Company shall enter into an agreement with the Paying Agent prior to the Closing Date in a form reasonably acceptable to Parent and the Company.  At or prior to the Effective Time, Parent or Merger Sub shall deposit or cause to be deposited with the Paying Agent an amount in cash sufficient to pay the aggregate Merger Consideration (the “Exchange Fund”).  Pending its disbursement in accordance with this Section 2.02, the Exchange Fund shall be invested by the Paying Agent as directed by Parent in (i) short-term direct obligations of the United States, (ii) short-term obligations for which the full faith and credit of the United States is pledged to provide for the payment of principal and interest, (iii) short-term commercial paper rated the highest quality by either Moody’s Investors Service, Inc. or Standard and Poor’s Ratings Services or (iv) certificates of deposit, bank repurchase agreements or banker’s acceptances of commercial banks with capital exceeding $5 billion.  Any and all interest earned on the funds in the Exchange Fund shall be paid by the Paying Agent to Parent.  No investment losses resulting from investment of the funds deposited with the Paying Agent shall diminish the rights of any former holder of Converted Shares to receive the Merger Consideration in accordance with this Article II.  To the extent that there are investment losses or the Exchange Fund otherwise diminishes below the level necessary for the payment and delivery of the aggregate Merger Consideration in accordance with this Article II, Parent shall promptly deposit or cause to be deposited additional amounts in cash in immediately available funds with the Paying Agent for the Exchange Fund as necessary to ensure that the Exchange Fund is at all relevant times at the level necessary for the payment and delivery of the aggregate Merger Consideration in accordance with this Article II.  Except as directed by Parent, the Exchange Fund shall not be used for any purpose other than the payment to former holders of Converted Shares of the Merger Consideration or payment to the Surviving Company as contemplated in this Section 2.02.

(b)          Letter of Transmittal; Exchange of Class A Shares.  As soon as practicable after the Effective Time (but in no event later than three business days after the Effective Time), the Surviving Company or Parent shall cause the Paying Agent to mail to each holder of record of a Certificate a form of letter of transmittal (which (i) shall specify that delivery of a Certificate shall be effected, and risk of loss and title to such Certificate shall pass, only upon delivery of such Certificate to the Paying Agent and (ii) shall be in such form and have such other customary
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provisions as the Surviving Company may specify, subject to Parent’s consent (such consent not to be unreasonably withheld, conditioned or delayed)), together with instructions thereto, setting forth, inter alia, the procedures by which holders of Certificates may receive the applicable Merger Consideration and any dividends or other distributions to which they are entitled pursuant to this Article II.  Upon the completion of such applicable procedures by a holder and the surrender of such holder’s Certificate, and without any action by any holder of record of Book-Entry Shares, the Paying Agent shall deliver to such holder (other than to any holder in respect of Dissenting Shares), (A) in the case of Book-Entry Shares, a notice of the effectiveness of the Merger and (B) cash in an amount (subject to Section 2.02(g)) equal to the number of Converted Shares represented by such Certificate or Book-Entry Shares immediately prior to the Effective Time multiplied by the Merger Consideration to which such holder is entitled under this Article II, and such Certificates or Book-Entry Shares shall forthwith be canceled.  If payment of the applicable Merger Consideration is to be made to a Person other than the Person in whose name a Certificate surrendered is registered, it shall be a condition of payment that (x) the Certificate so surrendered shall be properly endorsed or shall otherwise be in proper form for transfer and (y) the Person requesting such payment shall have established to the reasonable satisfaction of the Surviving Company and Parent that any transfer and other Taxes required by reason of the payment of the applicable Merger Consideration to a Person other than the registered holder either has been paid or is not applicable.  Until satisfaction of the applicable procedures contemplated by this Section 2.02 and subject to Section 2.04, each Certificate or Book-Entry Share shall be deemed at any time after the Effective Time to represent only the right to receive the applicable Merger Consideration and any dividends or other distributions pertaining to Converted Shares formerly represented by such Certificate or Book-Entry Share as contemplated by this Article II.  No interest shall be paid or shall accrue on the Merger Consideration payable with respect to Converted Shares pursuant to this Article II.

(c)          Lost, Stolen or Destroyed Certificates.  If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the Person claiming such Certificate to be lost, stolen or destroyed and, if required by the Surviving Company or Parent, the posting by such Person of a bond, in such customary amount as the Paying Agent may direct, as indemnity against any claim that may be made against it with respect to such Certificate, the Surviving Company shall cause the Paying Agent to pay, in exchange for such lost, stolen or destroyed Certificate, the applicable Merger Consideration as contemplated by this Article II.

(d)          Termination of Exchange Fund.  At any time following the date that is 180 days after the Closing Date, the Surviving Company shall be entitled to require the Paying Agent to deliver to it any portion of the Exchange Fund (including any interest received with respect thereto) that had been delivered to the Paying Agent and which has not been disbursed to former holders of Converted Shares, and thereafter such former holders shall be entitled to look only to the Surviving Company for, and the Surviving Company shall remain liable for, payment of their claims of the applicable Merger Consideration and any dividends or other distributions pertaining to their former Converted Shares that such former holders have the right to receive pursuant to the provisions of this Article II.  Any amounts remaining unclaimed by such holders at such time at which such amounts would otherwise escheat to or become property of any Governmental Authority shall become, to the extent permitted by applicable Law, the property of the Surviving Company or its designee, free and clear of all claims or interest of any Person previously entitled thereto.
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(e)          No Liability.  Notwithstanding any provision of this Agreement to the contrary, none of the parties hereto, the Surviving Company or the Paying Agent shall be liable to any Person for Merger Consideration delivered to any Governmental Authority pursuant to any applicable state, federal or other abandoned property, escheat or similar Law.

(f)          Transfer Books; No Further Ownership Rights in Common Shares.  The Merger Consideration paid in respect of Converted Shares upon surrender of Certificates or Book-Entry Shares in accordance with the terms of this Article II shall be deemed to have been paid in full satisfaction of all rights pertaining to such Converted Shares previously represented by such Certificates or Book-Entry Shares, subject, however, to (i) Section 2.04 and (ii) the Surviving Company’s obligation to pay any dividends or make any other distributions with a record date prior to the Effective Time that may have been declared by the Company on Converted Shares not in violation of the terms of this Agreement or prior to the date of this Agreement and which remain unpaid at the Effective Time.  At the Effective Time, the share transfer books of the Company shall be closed and thereafter there shall be no further registration of transfers on the share transfer books of the Surviving Company of Converted Shares that were issued and outstanding immediately prior to the Effective Time.  From and after the Effective Time, the former holders of Converted Shares formerly represented by Certificates or Book-Entry Shares immediately prior to the Effective Time shall cease to have any rights with respect to such underlying Converted Shares, except as otherwise provided for herein or by applicable Law.  Subject to the last sentence of Section 2.02(d), if, at any time after the Effective Time, Certificates or Book-Entry Shares are presented to the Surviving Company for any reason, they shall be canceled and exchanged as provided in this Article II.

(g)          Withholding Taxes.  Merger Sub, the Surviving Company and the Paying Agent (without duplication) shall be entitled to deduct and withhold from the consideration otherwise payable pursuant to this Agreement such amounts as are required to be deducted and withheld with respect to the making of such payment under the U.S. Internal Revenue Code of 1986 (the “Code”), or under any provision of other applicable Tax Law.  To the extent amounts are so withheld, such withheld amounts shall be (i) timely remitted to the appropriate Governmental Authority and (ii) treated for all purposes of this Agreement as having been paid to the Person in respect of which such deduction and withholding was made.  The parties hereto hereby agree to use their respective reasonable best efforts to cooperate to eliminate or reduce to the greatest extent possible any such deduction or withholding.

(h)          Other Matters.  The Company, Parent and Merger Sub shall reasonably cooperate to comply with the second sentence of Section 6.1 of the Company Charter and clause (i) of Section 4.01(a) of the HoldCo LLC Agreement.

SECTION 2.03.          Company Awards.  (a)  At the Effective Time, each Company Option, whether vested or unvested, that is issued and outstanding immediately prior to the Effective Time shall continue to exist and remain an issued and outstanding Company Option and continue to be subject to the same terms and conditions as of immediately prior to the Effective Time, as set forth in the Company Stock Plan and applicable award agreement.

(b)          At the Effective Time, (1) any vesting conditions applicable to each Company RSU Award held by any director of the Company who is not an employee of the
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Company, Parent or any of their respective Affiliates (a “Director RSU Award”) shall, automatically and without any required action on the part of the holder thereof, accelerate in full, and (2) each Director RSU Award shall, automatically and without any required action on the part of the holder thereof, be canceled and shall only entitle the holder of such Director RSU Award to receive (without interest) an amount in cash equal to (x) the number of Class A Shares subject to such Director RSU Award immediately prior to the Effective Time multiplied by (y) the Merger Consideration.  As promptly as reasonably practicable after the Effective Time (but in any event no later than three business days after the Effective Time), the Surviving Company shall pay (or cause to be paid through such other method as the Company utilizes for payments to such Persons)  to the holders of the Director RSU Awards the amounts contemplated by this Section 2.03(b); provided that, with respect to any Director RSU Award that constitutes nonqualified deferred compensation subject to Section 409A of the Code and that is not permitted to be paid at the Effective Time without triggering a Tax or penalty under Section 409A of the Code, such payment shall be made at the earliest time permitted under the Company Stock Plan and applicable award agreement that will not trigger a Tax or penalty under Section 409A of the Code.

(c)          At the Effective Time, each Company RSU Award (other than a Director RSU Award), whether vested or unvested, that is issued and outstanding immediately prior to the Effective Time shall continue to exist and remain an issued and outstanding Company RSU Award and continue to be subject to the same terms and conditions as of immediately prior to the Effective Time, as set forth in the Company Stock Plan and applicable award agreement.

(d)          At the Effective Time, each Company Profits Unit Award, whether vested or unvested, that is issued and outstanding immediately prior to the Effective Time shall continue to exist and remain an issued and outstanding Company Profits Unit Award and continue to be subject to the same terms and conditions as immediately prior to the Effective Time, as set forth in the Holdco LLC Agreement, the Company Stock Plan and the applicable award agreement.

(e)          Prior to the Effective Time, the Company Board (or, if appropriate, any committee administering the Company ESPP) shall take all actions as it deems necessary or appropriate to ensure that (i) no Purchase Period (as defined in the Company ESPP) under the Company ESPP shall be commenced on or after the date of this Agreement, (ii) beginning on the date of this Agreement, no new participants may join the Company ESPP during the Purchase Period in existence under the Company ESPP as of the date of this Agreement (such purchase period, the “Existing Purchase Period”), (iii) beginning on the date of this Agreement, no participant may increase the amount of such participant’s payroll deductions with respect to the Existing Purchase Period and (iv) the Company ESPP shall terminate on the earliest of (A) immediately following the purchase date for the Existing Purchase Period, (B) two business days prior to the Effective Time, in which case all participant contributions under the Company ESPP shall be used to purchase Class A Shares on such date in accordance with the terms of the Company ESPP as if such date was the last day of the Existing Purchase Period (such earlier date, the “ESPP Purchase Date”) and (C) the date that the Company otherwise terminates the Company ESPP.

(f)          At or prior to the Effective Time, the Company or the Company Board (or, if appropriate, any committee administering the Company Stock Plan or the Company ESPP), as applicable, shall adopt any resolutions and take any other actions that are necessary to effectuate
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the treatment of the Company Equity Awards and the Company ESPP pursuant to this Section 2.03.

SECTION 2.04.          Shares of Dissenting Holders.  (a)  Notwithstanding anything in this Agreement to the contrary, at the Effective Time, each Dissenting Share shall automatically be canceled (but shall not entitle its holder to receive the applicable consideration in respect of such canceled Dissenting Share contemplated by Section 2.01) and, without any further action on the part of the Company, Merger Sub or the holder of such Dissenting Share, automatically be converted into the right to receive the appraised fair value of such Dissenting Share in accordance with the provisions of Section 262 of the DGCL unless and until such holder fails to comply with the provisions of Section 262 of the DGCL or effectively withdraws or otherwise loses such holder’s rights to receive payment under Section 262 of the DGCL.

(b)          In the event that a holder of Dissenting Shares fails to comply with the provisions of Section 262 of the DGCL or effectively withdraws or loses such holder’s rights to receive payment under Section 262 of the DGCL, then such Dissenting Shares will no longer be Dissenting Shares for purposes of this Agreement and instead will be treated as the applicable class of Common Shares, and such holder shall have no rights with respect to such Dissenting Shares, and instead shall have the rights with respect to such Common Shares contemplated by Section 2.01.

(c)          The Company shall (i) give Parent prompt written notice of any written demands for appraisal of Dissenting Shares and any other written instruments, notices, petitions or other communications received by the Company or its Representatives in connection with the foregoing and (ii) give Parent the opportunity to participate with the Company in any settlement negotiations and proceedings with respect to any demands for appraisal pursuant to the DGCL in respect of such Dissenting Shares.  The Company shall not, without the prior written consent of Parent, voluntarily make any payment with respect to, offer to settle or settle any such demands, or agree to do any of the foregoing.

SECTION 2.05.          Adjustments.  Notwithstanding any provision of this Article II to the contrary, if between the date of this Agreement and the Effective Time the issued and outstanding Common Shares shall have been changed into a different number of Common Shares or a different class by reason of the occurrence or record date of any stock dividend, subdivision, reclassification, recapitalization, split, combination, exchange of shares or similar transaction, the Merger Consideration shall be appropriately adjusted to reflect such stock dividend, subdivision, reclassification, recapitalization, split, combination, exchange of shares or similar transaction.


ARTICLE III

Representations and Warranties of the Company

The Company represents and warrants to Parent and Merger Sub that, except as (A) set forth in the confidential disclosure letter delivered by the Company to Parent and Merger Sub concurrently with the execution and delivery of this Agreement (the “Company Disclosure Letter”) (it being understood that any information, item or matter set forth in one section or
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subsection of the Company Disclosure Letter shall be deemed disclosed with respect to, and shall be deemed to apply to and qualify, the section or subsection of this Agreement to which it corresponds in number and each other section or subsection of this Agreement to the extent that it is reasonably apparent on the face of such disclosure that such information, item or matter is relevant to such other section or subsection) or (B) disclosed in any report, schedule, form, statement or other document (including exhibits) filed with, or furnished to, the SEC prior to the date of this Agreement by the Company and publicly available prior to the date of this Agreement (the “Filed SEC Documents”), other than, in the case of clause (B), disclosure contained in any such Filed SEC Documents under the headings “Risk Factors” or “Cautionary Statements About Forward Looking Statements” or similar headings, or disclosure of any risks generally faced by participants in the industries in which the Company operates, in each case without disclosure of specific facts and circumstances (it being understood that clause (B) shall not be applicable to the representations and warranties set forth in Sections 3.02, 3.03(a), 3.03(b), 3.03(c) and 3.03(e).

SECTION 3.01.          Organization; Standing.  (a)  The Company is a corporation duly incorporated, validly existing and in good standing under the Laws of the State of Delaware.  The Company has all requisite corporate power and authority necessary to carry on its business as it is now being conducted and to own, lease and operate its assets and properties, except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.  The Company is duly licensed or qualified to do business and is in good standing (where such concept is recognized under applicable Law) 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 Material Adverse Effect.  A true and complete copy of each of the Company Organizational Documents in effect as of the date hereof is included in the Filed SEC Documents.

(b)          Each of the Company’s Subsidiaries is duly incorporated or organized, validly existing and in good standing (where such concept is recognized under applicable Law) under the Laws of the jurisdiction of its incorporation or organization, except where the failure to be so incorporated or organized, existing and in good standing would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.  Each of the Company’s Subsidiaries is duly licensed or qualified to do business and is in good standing (where such concept is recognized under applicable Law) in each jurisdiction in which the nature of the business conducted by such Subsidiary or the character or location of the properties and assets owned or leased by such Subsidiary 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 Material Adverse Effect.

SECTION 3.02.          Capitalization.  (a)  The authorized share capital of the Company consists of 6,000,000,000 shares, consisting of (x) 4,500,000,000 shares of common stock, divided into 3,000,000,000 Class A Shares and 1,500,000,000 Class B Shares and (y) 1,500,000,000 shares of preferred stock, with the par value of $0.001 per share (the “Preferred Stock”).  At the close of business on December 7, 2022 (the “Capitalization Date”), (i) 53,738,392 Class A Shares were issued and outstanding, (ii) 234,476,377 Class B Shares were issued and outstanding, (iii) no shares of Preferred Stock were issued and outstanding, (iv) no Class A Shares were held by the Company as treasury shares or held by its Subsidiaries, (v) no Class B Shares were held by the
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Company as treasury shares or held by its Subsidiaries, (vi) 534,021 Class A Shares were issuable in respect of outstanding Company Options, (vii) 7,836,433 Class A Shares were issuable in respect of outstanding Company RSU Awards, (viii) 1,052,634 Class A Shares were issuable in respect of outstanding Company Profits Unit Awards (assuming an intervening exchange into common units of HoldCo and achievement of applicable performance goals at maximum performance levels and that the price of a Class A Share used for purposes of calculating such intervening exchange is equal to the Merger Consideration), (ix) 12,966,567 Class A Shares were reserved for future issuance under the Company Stock Plan and (x) 8,892,777 Class A Shares could be acquired with accumulated payroll deductions under the Company ESPP as of the ESPP Purchase Date (assuming that (A) the market price of a Class A Share as of the ESPP Purchase Date is equal to the Merger Consideration and (B) payroll deductions continue at the rate in effect as of the Capitalization Date).  Since the Capitalization Date through the date of this Agreement, other than (A) in connection with the settlement or exercise, as applicable, of Company Equity Awards or purchase rights under the Company ESPP that were outstanding on the Capitalization Date and included in the preceding sentence, (B) as required pursuant to the HoldCo LLC Agreement, or (C) as would be permitted by this Agreement (including Section 5.01) had such issuance occurred during the period from the date of this Agreement until the Effective Time, neither the Company nor any of its Subsidiaries has issued any Company Securities.

(b)          Except as set forth in, or as contemplated by, Section 3.02(a), as of the date of this Agreement, there were (i) no outstanding shares of capital stock of, or other equity or voting interests in, the Company, (ii) no outstanding securities of the Company convertible into or exchangeable for shares of capital stock of, or other equity or voting interests in, the Company, (iii) no outstanding subscriptions, options, warrants, calls, phantom equity rights, profits interests or other commitments or agreements to acquire from the Company, or that obligate the Company to issue, any capital stock of or other equity or voting interests in, or any securities convertible into or exchangeable for shares of capital stock of, or other equity or voting interests in, the Company (the items in clauses (i), (ii) and (iii) being referred to collectively as “Company Securities”) and (iv) no other obligations by the Company or any of its Subsidiaries to make any payments based on the price or value of any Company Securities or dividends paid thereon.  Other than in connection with the Company Equity Awards or purchase rights under the Company ESPP or the HoldCo Documents, there are no outstanding agreements or instruments of any kind that obligate the Company or any of its Subsidiaries to repurchase, redeem or otherwise acquire any Company Securities (or obligate the Company to grant, extend or enter into any such agreements relating to any Company Securities) or that grant any preemptive rights, subscription rights, anti-dilutive rights, rights of first refusal or similar rights with respect to any Company Securities.  Except as described in this Section 3.02(b), no direct or indirect Subsidiary of the Company owns any Common Shares.  Other than the HoldCo Documents, none of the Company or any Subsidiary of the Company is a party to any stockholders’ agreement, voting trust agreement, registration rights agreement or other similar agreement or understanding relating to any Company Securities or any other agreement relating to the disposition or voting with respect to any Company Securities.  Except as set forth in Section 3.02(b) of the Company Disclosure Letter or pursuant to the Registration Rights Agreement, no holder of Company Securities has any right to have such Company Securities registered by the Company.  All issued and outstanding Common Shares have been authorized and validly issued and are fully paid, nonassessable and free of preemptive rights.  The Class A Shares are the only issued and outstanding classes of equity securities of the Company registered under the Exchange Act.
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(c)          Except as set forth in the HoldCo Documents, all of the issued and outstanding share capital or shares of capital stock of, or other equity or voting interests in, each Subsidiary of the Company are owned, directly or indirectly, beneficially and of record, by the Company, free and clear of all Liens, except for Permitted Liens, and transfer restrictions, other than transfer restrictions of general applicability, as may be provided under the Securities Act of 1933 (collectively, the “Securities Act”) or other applicable securities Laws.  Except as set forth in the HoldCo Documents, each issued and outstanding share capital or share of capital stock of, or other equity or voting interests in, each Subsidiary of the Company that is held, directly or indirectly, by the Company, is duly authorized, validly issued, fully paid, nonassessable and free of preemptive rights, and there are no subscription rights, options, warrants, anti-dilutive rights, rights of first refusal or similar rights, calls, contracts or other commitments that obligate the Company or any Subsidiary of the Company to issue (other than to the Company or any Subsidiary of the Company) any share capital or shares of capital stock or other equity or voting interests of any Subsidiary of the Company, including any right of conversion or exchange under any outstanding security, instrument or agreement, any agreements granting any preemptive rights, subscription rights, anti-dilutive rights, rights of first refusal or similar rights (to Persons other than the Company or any Subsidiary of the Company) with respect to any securities of any Subsidiary of the Company.

(d)          All grants of Company Equity Awards and purchase rights under the Company ESPP were validly issued and properly approved by the Company Board (or a committee thereof) in accordance with the Company Stock Plan, the Company ESPP and applicable Law.  The Company has provided Parent with a complete and correct list, as of the date of this Agreement, of (i) each outstanding Company Option, including the date of grant, exercise price, vesting schedule and number of shares of Class A Shares subject thereto, (ii) each Company RSU Award, including the date of grant, vesting schedule and number of Class A Shares subject thereto and (iii) each outstanding Company Profits Unit Award, including the date of grant, vesting conditions and applicable participation threshold.

SECTION 3.03.          Authority; Noncontravention.  (a)  The Company has all necessary corporate power and authority to execute and deliver this Agreement and to perform its obligations hereunder and, subject to obtaining the Required Stockholder Approval, to consummate the Transactions.  The execution, delivery and performance by the Company of this Agreement, and the consummation by the Company of the Transactions, have been unanimously authorized and approved by the Company Board (acting upon the Special Committee Recommendation), and, except for obtaining the Required Stockholder Approval and Governmental Approvals, and filing the Certificate of Merger with the Secretary of State pursuant to the DGCL, no other corporate action on the part of the Company is necessary to authorize the execution, delivery and performance by the Company of this Agreement and the consummation by the Company of the Transactions.  This Agreement has been duly and validly executed and delivered by the Company and, assuming due authorization, execution and delivery hereof by the other parties hereto, constitutes a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except that such enforceability (i) may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium, rehabilitation, conservatorship, liquidation, receivership and other similar Laws, now or hereafter in effect, of general application affecting or relating to the enforcement of creditors’ rights generally and (ii) is
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subject to general principles of equity, whether considered in a proceeding at law or in equity (collectively, the “Bankruptcy and Equity Exception”).

(b)          The Special Committee, at a meeting duly called and held, has unanimously (i) determined that this Agreement and the Transactions, including the Merger, on the terms and subject to the conditions set forth herein, are advisable, fair to and in the best interests of the Company and the Public Shareholders and (ii) resolved, subject to Section 5.02, to make the Special Committee Recommendation, and, as of the date of this Agreement, such Special Committee Recommendation has not been subsequently rescinded, modified or withdrawn in any way.

(c)          The Company Board (upon the unanimous recommendation of the Special Committee) has (i) determined that this Agreement and the Transactions, including the Merger, on the terms and subject to the conditions set forth herein, are advisable, fair to and in the best interests of the Company and its stockholders, (ii) declared this Agreement and the Transactions, including the Merger, advisable, (iii) approved this Agreement, the execution and delivery by the Company of this Agreement, the performance by the Company of the covenants and agreements contained herein and the consummation of the Transactions, including the Merger, on the terms and subject to the conditions contained herein and (iv) resolved, subject to Section 5.02, to make the Company Board Recommendation, and, as of the date of this Agreement, such Company Board Recommendation has not been subsequently rescinded, modified or withdrawn in any way.

(d)          Neither the execution and delivery of this Agreement by the Company, nor the consummation by the Company of the Transactions, nor performance or compliance by the Company with any of the terms or provisions hereof, will (i) subject to the receipt of the Required Stockholder Approval, conflict with or violate any provision of (A) the Company Organizational Documents, (B) the similar organizational documents of any of the Company’s Subsidiaries or (C) any of the HoldCo Documents or (ii) assuming that the Governmental Approvals and the Required Stockholder Approval are obtained, the filings referred to in Section 3.04 are made and any waiting periods thereunder have terminated or expired, in each case prior to the Effective Time, (A) violate any Law or Judgment applicable to the Company or any of its Subsidiaries, (B) violate or constitute a default under (with or without notice or lapse of time or both) any of the terms, conditions or provisions of any Contract to which the Company or its Subsidiaries, as applicable, are bound or give rise to any right to terminate, cancel, amend, modify or accelerate the Company’s or, if applicable, any of its Subsidiaries’, rights or obligations under any such Contract, (C) give rise to any right of first refusal, preemptive right, tag-along right, transfer right or other similar right of any other party to a Contract to which the Company or any of its Subsidiaries is bound or (D) result in the creation of any Lien (other than Permitted Liens) on any properties or assets of the Company or any of its Subsidiaries, except, in the case of clauses (i)(B), (i)(C) and (ii), as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

(e)          The Required Stockholder Approval may be satisfied by the execution and delivery of a written consent to approve and adopt this Agreement and the Transactions, including the Merger, in accordance with Section 228 and Section 251(c) of the DGCL by stockholders of the Company holding, as of the effective date of such written consent, (i) a majority of the Class A Shares outstanding as of such time, (ii) a majority of (A) the Class B Shares outstanding as of
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such time and (B) the Class B Shares held by the stockholders party to the Stockholders Agreement as of such time and (iii) a majority of the Common Shares outstanding as of such time.  Other than the Required Stockholder Approval, no vote, consent or approval by the stockholders of the Company is required to adopt and approve this Agreement and the Transactions, including the Merger.

SECTION 3.04.          Governmental Approvals.  Except for (a) compliance with the applicable requirements of the Securities Act, (b) compliance with the applicable requirements of the Securities Exchange Act of 1934 (collectively, the “Exchange Act”), including the filing with the Securities and Exchange Commission (the “SEC”) of the Information Statement and Schedule 13E-3, (c) compliance with the rules and regulations of the New York Stock Exchange, (d) the filing of the Certificate of Merger with the Secretary of State pursuant to the DGCL, (e) compliance with any applicable requirements of the HSR Act and making or obtaining any Consents, filings, declarations or registrations required to be made or obtained under any applicable other Antitrust Laws and (f) compliance with any applicable state securities or blue sky laws (collectively, the “Governmental Approvals”), no Consent of, or filing, declaration or registration with, any Governmental Authority is necessary for the execution and delivery of this Agreement by the Company, the performance by the Company of its obligations hereunder and the consummation by the Company of the Transactions, other than such other Consents, filings, declarations or registrations that, if not obtained, made or given, would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

SECTION 3.05.          Company SEC Documents; Internal Controls.  (a)  The Company has timely filed with the SEC all reports, schedules, forms, statements and other documents required to be filed by the Company with the SEC pursuant to the Securities Act or the Exchange Act (collectively, the “Company SEC Documents”).  As of their respective effective dates (in the case of Company SEC Documents that are registration statements filed pursuant to the requirements of the Securities Act) or their respective SEC filing dates or, if amended or supplemented prior to the date hereof, the date of the filing of such amendment or supplement, with respect to the portions that are amended or supplemented (in the case of all other Company SEC Documents), the Company SEC Documents complied as to form in all material respects with the requirements of the Securities Act or the Exchange Act, as the case may be, applicable to such Company SEC Documents, and none of the Company SEC Documents as of such respective dates (or, if amended or supplemented prior to the date of this Agreement, the date of the filing of such amendment or supplement, with respect to the disclosures that are amended or supplemented) contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.  As of the date of this Agreement, there are no outstanding written comments from the SEC with respect to the Company SEC Documents.  Notwithstanding anything to the contrary herein, none of the representation and warranties contained in this Section 3.05(a) are made with respect to the Information Statement or the Schedule 13E-3 or any other report, schedule, form, statement or other document required to be filed or furnished with the SEC in connection with the Transactions.

(b)          The consolidated financial statements of the Company (including all related notes or schedules) included or incorporated by reference in the Company SEC Documents (collectively, the “Company Financial Statements”), as of their respective dates of filing with the
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SEC (or, if such Company SEC Documents were amended or supplemented prior to the date hereof, the date of the filing of such amendment or supplement, with respect to the consolidated financial statements that are amended, supplemented or restated therein), complied as to form in all material respects with the published rules and regulations of the SEC with respect thereto, have been prepared in all material respects in accordance with GAAP (except, in the case of unaudited quarterly statements, as permitted by Form 10-Q of the SEC or other rules and regulations of the SEC) applied on a consistent basis during the periods involved (except (i) as may be indicated in the notes thereto or (ii) as permitted by Regulation S-X) and 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 results of their operations and cash flows for the periods shown (subject, in the case of unaudited quarterly financial statements, to normal year-end adjustments).

(c)          Neither the Company nor any of its Subsidiaries has any liabilities of any nature (whether accrued, absolute, contingent or otherwise), except liabilities (i) reflected or reserved against in the consolidated balance sheet (or the notes thereto) of the Company as of June 30, 2022 (the “Balance Sheet Date”) included in the Company SEC Documents, (ii) incurred after the Balance Sheet Date in the ordinary course of business, (iii) as contemplated by this Agreement or otherwise incurred in connection with the Transactions, (iv) as related to Taxes or (v) as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

(d)          The Company is in compliance in all material respects with the provisions of the Sarbanes-Oxley Act of 2002 (the “Sarbanes-Oxley Act”) that are applicable to the Company.  With respect to each Company SEC Document, each of the principal executive officer and the principal financial officer of the Company has made all certifications required by Rule 13a-14 or 15d-14 under the Exchange Act and Section 302 or 906 of the Sarbanes-Oxley Act with respect to such Company SEC Documents.  The Company is in compliance in all material respects with the applicable listing and corporate governance rules and regulations of the New York Stock Exchange (taking into account that the Company qualifies for certain “controlled company” exemptions to such rules and regulations).

(e)          The Company has established and maintains disclosure controls and procedures and a system of internal controls over financial reporting (as such terms are defined in paragraphs (e) and (f), respectively, of Rule 13a-15 under the Exchange Act) as required by Rule 13a-15 under the Exchange Act.  As of the date hereof, neither the Company nor, to the Company’s Knowledge, the Company’s independent registered public accounting firm, has identified or been made aware of “significant deficiencies” or “material weaknesses” (as defined by the Public Company Accounting Oversight Board) in the design or operation of the Company’s internal controls over financial reporting which would reasonably be expected to adversely affect in any material respect the Company’s ability to record, process, summarize and report financial data, in each case which has not been subsequently remediated.

(f)          Since August 9, 2021, neither the Company nor any director, officer or accountant (to the extent communicated to the Company) thereof, has received any material complaint, allegation, assertion or claim, whether written or oral, that (i) the Company has engaged in illegal or fraudulent accounting practices, (ii) there are any significant deficiencies or material weaknesses in the design or operation of the internal controls of the Company which have materially and adversely affected the ability of the Company to record, process, summarize and
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report financial data or (iii) there is any fraud, whether or not material, involving management or other employees that was reported to the Company Board or management of the Company.

(g)          Neither the Company nor any of its Subsidiaries is a party to, or has any commitment to become a party to, any joint venture, off-balance sheet partnership or any similar Contract (including any Contract or arrangement relating to any transaction or relationship between or among the Company and any of its Subsidiaries, on the one hand, and any unconsolidated Affiliate, including any structured finance, special purpose or limited purpose entity or Person, on the other hand, or any “off-balance sheet arrangements” (as defined in Item 303(a) of Regulation S-K of the SEC)), where the purpose of such Contract is to avoid disclosure of any material transaction involving, or material liabilities of, the Company in the Company’s published financial statements or any Company SEC Documents.

SECTION 3.06.          Absence of Certain Changes.  (a)  From June 30, 2022 through the date of this Agreement, except for the execution and delivery of this Agreement and the discussions and negotiations related thereto, the business of the Company and its Subsidiaries has been carried on and conducted in all material respects in the ordinary course of business and (b) since June 30, 2022, there has not been any Material Adverse Effect.

SECTION 3.07.          Legal Proceedings.  Except (a) for any Action commenced or threatened against the Company or its directors which relates to this Agreement or the Transactions or (b) as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, there is no (x) pending or, to the Knowledge of the Company, threatened in writing, Action or, to the Knowledge of the Company, investigation against the Company or any of its Subsidiaries or (y) outstanding injunction, order, judgment, ruling, decree or writ of any Governmental Authority (a “Judgment”) imposed upon the Company or any of its Subsidiaries or any director or officer of the Company or any of its Subsidiaries (in their capacity as such) or, to the Knowledge of the Company, any other Person for whom the Company or any of its Subsidiaries may be liable as an indemnifying party or otherwise, in each case, by or before any Governmental Authority.

SECTION 3.08.          Compliance with Laws; Permits.  (a)  The Company and each of its Subsidiaries (i) are, and have been since August 9, 2021, in compliance with all state, federal or foreign laws, statutes, common laws, ordinances, codes, rules and regulations (collectively, “Laws”) and Judgments, in each case, applicable to the Company or any of its Subsidiaries, except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect and (ii) have not since August 9, 2021 received from any Governmental Authority any written, or to the Knowledge of the Company, oral, notice or communication asserting any noncompliance with any such Laws, except for any such noncompliance that would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

(b)          The Company and each of its Subsidiaries hold all valid licenses, franchises, permits, certificates, approvals, authorizations and registrations from Governmental Authorities necessary for the lawful conduct of their respective businesses as each such business is currently conducted (collectively, “Permits”), except where the failure to hold the same would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.  The operation of the business of the Company and each of its Subsidiaries as currently conducted is
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not, and has not been since August 9, 2021, in violation of, nor are the Company or any of its Subsidiaries in default or violation under, any Permits and, to the Knowledge of the Company, no event has occurred which, with notice or the lapse of time or both, would constitute a default or violation of any terms, conditions or provisions of any Permit, except where such default or violation of such Permit would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.  All such Permits are in full force and effect, except where the failure to be in full force and effect would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

SECTION 3.09.          Anti-Corruption; Sanctions; Anti-Money Laundering.  (a)  To the Knowledge of the Company, neither the Company nor any of its Subsidiaries are in violation, or since August 9, 2021, have been in violation, of any Anti-Bribery Laws, except, in each case, as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.  Without limiting the foregoing, since August 9, 2021, neither the Company nor any of its Subsidiaries, their respective directors or officers, nor, to the Knowledge of the Company, any of their respective employees or agents, acting on behalf of the Company or any of its Subsidiaries, has made or caused to be made any Payments, (i) to or for the use or benefit of any Government Official, (ii) to any other Person either for an advance or reimbursement, if it knows or has reason to know that any part of such Payment will be directly or indirectly given or paid by such other Person, or will reimburse such other Person for Payments previously made, to any Government Official or (iii) to any other Person, to obtain or keep business or to secure some other improper advantage, in violation of Anti-Bribery Laws, except, in each case, as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.  The Company has policies, procedures and controls that are reasonably designed to ensure compliance in all material respects with the Anti-Bribery Laws.

(b)          Neither the Company nor any of its Subsidiaries, nor any of their respective officers or directors, nor, to the Knowledge of the Company, any of their respective employees, agents or other Persons acting on behalf of any of them, is the subject or target of any sanctions or trade embargoes imposed, enforced or administered by the Office of Foreign Assets Control of the United States Treasury Department, the U.S. Department of State, and the U.S. Department of Commerce, the United Nations Security Council, the European Union, and the United Kingdom (collectively, “Economic Sanctions”), and does not make any sales to or engage in business activities with or for the benefit of any Persons or jurisdictions that are the subject or target of any Economic Sanctions that would cause any Person to be in violation of any Economic Sanctions, except, in each case, as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.  Since August 9, 2021, none of the Company or any of its Subsidiaries has taken any action that would constitute a material violation of any Economic Sanctions, except, in each case, as 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 Action or, to the Knowledge of the Company, investigation, by or before any Governmental Authority involving the Company or any of its Subsidiaries with respect to Money Laundering Laws, Anti-Bribery Laws or Economic Sanctions is pending or, to the Knowledge of the Company, threatened.
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SECTION 3.10.          Tax Matters.  Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect:

(a)          Each of the Company and its Subsidiaries has prepared (or caused to be prepared) and timely filed (taking into account valid extensions of time within which to file) all Tax Returns required to be filed by any of them.  All such filed Tax Returns (taking into account all amendments thereto) are true, complete and accurate, and all Taxes owed by the Company and each of its Subsidiaries that are due have been timely and fully paid (whether or not showed to be due on a Tax Return), other than any such Taxes that are being contested in good faith or have been adequately reserved against in accordance with GAAP.

(b)          As of the date of this Agreement, the Company has not received written notice of any pending or, to the Knowledge of the Company, threatened audits, examinations, investigations, claims or other proceedings in respect of any Taxes of the Company or any of its Subsidiaries. No deficiency with respect to any amount of Taxes has been proposed, asserted or assessed in writing against the Company or any of its Subsidiaries. Neither the Company nor any of its Subsidiaries has been informed in writing by any jurisdiction in which the Company or any of its Subsidiaries currently does not file Tax Returns that the jurisdiction believes that the Company or any of its Subsidiaries was required to file any Tax Return in such jurisdiction.

(c)          There are no Liens for Taxes on any of the assets of the Company or any of its Subsidiaries other than Permitted Liens.

(d)          Neither the Company nor any of its Subsidiaries has participated in any “listed transaction” within the meaning of U.S. Treasury Regulations Section 1.6011-4(b)(2).

SECTION 3.11.          Employee Benefits.  (a)  Each Company Plan has been administered in compliance with its terms and applicable Laws and the Company and its Subsidiaries have complied with all Laws related to compensation and benefit plans, programs, agreements or arrangements, in each case, other than instances of noncompliance that would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.  As of the date hereof, there is no material pending or, to the Knowledge of the Company, threatened Action relating to the Company Plans, other than routine claims for benefits.

(b)          Each Company Plan that, as of the date of this Agreement, is intended to be “qualified” within the meaning of Section 401(a) of the Code 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 of any such Company Plan, except where such loss of qualification status would not, individually or in the aggregate, reasonably be material to the Company and its Subsidiaries.

(c)          Neither the Company nor any of its ERISA Affiliates has ever maintained or contributed to a plan subject to Title IV of ERISA or Section 412 of the Code, including any “single employer” defined benefit plan (as defined in Section 4001 of ERISA), any “multiemployer plan” (as defined in Section 3(37) or 4001(a)(3) of ERISA), any “multiple employer plan” (as defined in C.F.R. Section 4001.02) or a plan subject to Section 413(c) of the
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Code, any “multiple employer welfare arrangement” (as defined in Section 3(40) of ERISA) or applicable state Law or any “voluntary employees’ beneficiary association” (as defined in Section 501(c)(9) of the Code) or other funded arrangement for the provision of welfare benefits.  “ERISA Affiliate” means any Person which is (or at any relevant time was or will be) a member of a “controlled group of corporations” with, under “common control” with or a member of an “affiliate service group” with the Company or any of its Subsidiaries as such terms are defined in Section 414(b), (c), (m) or (o) of the Code.

(d)          Except as required under applicable Law or where the costs are borne solely by the participant (or such participant’s dependents or beneficiaries), no Company Plan provides health, medical, dental or life insurance benefits following retirement or other termination of employment.

(e)          Except as otherwise provided in Section 2.03(b), neither the execution and delivery of this Agreement, shareholder or other approval of this Agreement, nor the consummation of the Transactions may, either alone or in combination with another event, (i) entitle any employee, director, officer or independent contractor of the Company or any of its Subsidiaries to any compensation or benefits (including any termination, severance, change of control or similar benefit or otherwise), (ii) accelerate the time of payment or vesting, or increase the amount of compensation or other amounts due to any director, officer or employee of the Company or any of its Subsidiaries (whether by virtue of any termination, severance, change of control or similar benefit or otherwise), (iii) directly or indirectly cause the Company to transfer or set aside any assets to fund any benefits under any Company Plan, (iv) limit or restrict the right to amend, terminate or transfer the assets of any Company Plan on or following the Effective Time or (v) result in the payment of any amount or any benefits that could, individually or in combination with any other such payment, constitute an “excess parachute payment” as defined in Section 280G(b)(1) of the Code.

(f)          No current or former employee, director or other service provider of or to the Company or any of its Subsidiaries is entitled to any gross-up, make-whole or other additional payment from the Company or any other Person in respect of any Tax (including under Section 4999 or 409A of the Code) or interest or penalty related thereto.

(g)          All Company Plans that are maintained outside of the United States that provide benefits in respect of any employee of the Company or any of its Subsidiaries who is primarily based outside of the United States (i) have been maintained in accordance with all applicable Laws, (ii) if they are intended to qualify for special tax treatment, meet all the requirements for such treatment, and (iii) if they are intended to be funded and/or book-reserved, are fully funded and/or book-reserved, as appropriate, based upon reasonable actuarial assumptions, except, in each case, as would not reasonably be expected to have a Material Adverse Effect.

SECTION 3.12.          Labor Matters.  (a)  Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, as of the date of this Agreement, (a) to the Knowledge of the Company, there are no activities or proceedings of any labor organization to organize any employees of the Company or any of its Subsidiaries ongoing, pending or threatened against the Company or any of its Subsidiaries and no demand for
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recognition as the exclusive bargaining representative of any such employees has been made by or on behalf of any labor or similar organization, (b) no approvals of any works council, labor union or similar organization are required under applicable Law or any Collective Bargaining Agreement in connection with the execution or delivery of this Agreement or any of the other Transaction Agreements, or the consummation of the Transactions, (c) there is no ongoing, pending or, to the Knowledge of the Company, threatened strike, lockout, slowdown or work stoppage by or with respect to the employees of the Company or any of its Subsidiaries and (d) there is no unfair labor practice, labor dispute (other than routine individual grievances) or labor arbitration proceeding ongoing, pending or, to the Knowledge of the Company, threatened against the Company or any of its Subsidiaries.  Each of the Company and its Subsidiaries is in compliance with all applicable Laws regarding labor and unfair labor practices, employment and employment practices and terms and conditions of employment, including Laws relating to discrimination, paying and withholding of Taxes, hours of work, the classification of service providers and the payment of wages or overtime wages, except for instances of noncompliance that 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, no investigation, review, complaint or proceeding by or before any Governmental Authority or otherwise with respect to the Company or any of its Subsidiaries in relation to the employment or alleged employment of any individual is ongoing, pending or, to the Knowledge of the Company, threatened, nor has the Company or any of its Subsidiaries received any notice indicating an intention to conduct the same.

(c)          Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, since August 9, 2021 the Company and its Subsidiaries have not received or been subject to any complaints, claims or actions alleging sexual harassment, sexual misconduct, bullying or discrimination committed by any director, officer or other managerial employee of the Company or any of its Subsidiaries or alleging a workplace culture that would encourage or be conducive to the foregoing.

SECTION 3.13.          Environmental Matters.  Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, (a) the Company and each of its Subsidiaries is, and has been since August 9, 2021, in compliance with all applicable Environmental Laws, and neither the Company nor any of its Subsidiaries has received any written notice of violation, claim, settlement or order since August 9, 2021 (or that otherwise remains unresolved) alleging that the Company or any of its Subsidiaries is in violation of or has any liability under any Environmental Law, (b) the Company and each of its Subsidiaries possesses and is, and has been since August 9, 2021, in compliance with all Permits required under Environmental Laws for the operation of their respective businesses as currently conducted (“Environmental Permits”), (c) to the Knowledge of the Company, there has been no Release of or exposure to any Hazardous Materials that would reasonably be expected to result in any Action under any Environmental Law against the Company or any of its Subsidiaries, (d) there are no Liens or Actions under or pursuant to any Environmental Law or Environmental Permit that are pending or, to the Knowledge of the Company, threatened against the Company or any of its Subsidiaries, (e) neither the Company nor any of its Subsidiaries is subject to any Judgment imposed by any Governmental Authority under which there are outstanding obligations on the part of the Company or its Subsidiaries arising under Environmental Laws and (f) the Company made
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available to Parent and its Representatives copies of any written environmental reports, audits, and site assessments completed since August 9, 2021 in the possession of the Company or any of its Subsidiaries pertaining to (i) any unresolved liabilities under Environmental Law, (ii) any Release of Hazardous Materials by the Company or any of its Subsidiaries or at any property currently or formerly owned, operated or leased by the Company or any of its Subsidiaries, or (iii) the Company’s or any of its Subsidiaries’ compliance with applicable Environmental Laws.

SECTION 3.14.          Intellectual Property.  (a)  The Company and its Subsidiaries own all Company Intellectual Property, and hold all right, title and interest in and to the Company Intellectual Property, in each case, free and clear of all Liens other than Permitted Liens.  The Company and its Subsidiaries own or have sufficient rights to use all material Intellectual Property used in the conduct of the business of the Company and its Subsidiaries as currently conducted; provided that nothing in this Section 3.14(a) shall be interpreted or construed as a representation or warranty with respect to whether there is any infringement of any Intellectual Property, which is the subject of Section 3.14(b).  All material Company Intellectual Property that is registered or issued is subsisting and, to the Knowledge of the Company, valid and enforceable.

(b)          To the Knowledge of the Company, (i) no Person is misappropriating, violating or infringing, and, since August 9, 2021, no Person has misappropriated, violated or infringed, the rights of the Company or any of its Subsidiaries with respect to any Company Intellectual Property and (ii) the operation of the business of the Company and its Subsidiaries as currently conducted does not violate, misappropriate or infringe and, since August 9, 2021, has not misappropriated, violated or infringed the Intellectual Property rights of any other Person, except in each case of clauses (i) and (ii), as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

SECTION 3.15.          IT Assets, Data Privacy and Cybersecurity.  (a)  Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, the Company and each of its Subsidiaries is, and has been since August 9, 2021, in compliance with all Privacy Requirements.  Since August 9, 2021, neither the Company nor any Company Subsidiary has (i) been the subject of any Action regarding its collection, storage, transfer, maintenance, processing or use of any Personal Data and there are no such Actions, governmental investigations or claims pending, threatened in writing, or, to the Knowledge of the Company, otherwise threatened related to any applicable Privacy Requirements, or (ii) notified, or been legally required to provide any notices to any Governmental Authority, data subjects or individuals in connection with a Sensitive Information Breach, except in each case of clauses (i) and (ii), as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

(b)          The IT Assets operate and perform materially in accordance with their documentation and functional specifications and are adequate and sufficient for the conduct of the business of the Company and its Subsidiaries as currently conducted.  To the Knowledge of the Company, none of the IT Assets contain any virus, “trojan horse”, worm or other code, software routine or instructions designed to permit unauthorized access to or to disable, erase or otherwise harm the IT Assets or Sensitive Information, except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
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(c)          Since August 9, 2021, none of the Company or its Subsidiaries has experienced any failures, crashes or similar incidents with respect to its IT Assets or any Sensitive Information Breaches, except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.  The Company and its Subsidiaries have implemented and maintain commercially reasonable administrative, technical, and physical safeguards reasonably designed to protect the security, confidentiality, integrity, and availability of IT Assets and Sensitive Information from unauthorized processing, disclosure, use, access or unlawful destruction, loss or alteration, taking into account the risks to and sensitivity of the data processed by the Company and its Subsidiaries.

SECTION 3.16.          Anti-Takeover Provisions.  No (i) “business combination”, “control share acquisition”, “fair price”, “moratorium” or other anti-takeover Laws (each a “Takeover Law”), (ii) stockholder rights agreement, “poison pill” or similar anti-takeover agreement or (iii) anti-takeover provision in the Company Organizational Documents applies or will apply to the Company with respect to this Agreement or the Transactions, including the Merger.

SECTION 3.17.          Contracts.  (a)  For purposes of this Agreement, “Material Contract” means any Contract to which the Company or any of its Subsidiaries is a party or by which the Company, any of its Subsidiaries or any of their respective properties or assets is bound (other than Company Plans and Collective Bargaining Agreements, any Contracts solely between the Company and one or more of its Subsidiaries or solely between the Company’s Subsidiaries, any Contracts to which BDT Capital Partners, LLC or any of its Affiliates are a party or any Contracts related to the Transactions (including the Merger)), whether or not scheduled and including any such Contract entered into after the date hereof that:

(i)          is or would be required to be filed as an exhibit to the Company’s Annual Report on Form 10-K pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act;

(ii)          relates to the formation or management of any joint venture, partnership or other similar arrangement that is material to the business of the Company and its Subsidiaries, taken as a whole, but excluding any Subsidiaries;

(iii)          under which the Company or any of its Subsidiaries has directly or indirectly incurred or guaranteed or assumed indebtedness for borrowed money of another Person (other than any wholly owned Subsidiary of the Company), in each case having an outstanding or committed amount in excess of $2,000,000 individually or $10,000,000 in the aggregate;

(iv)          has been entered into since August 9, 2022, and involves the acquisition from another Person or disposition to another Person of capital stock or other equity interests of another Person or of a business or any assets, in each case, for aggregate consideration under such Contract in excess of $5,000,000 (excluding, for the avoidance of doubt, acquisitions or dispositions of supplies, equipment, products, properties or other assets in the ordinary course of business or dispositions of supplies, equipment, products,
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properties or other assets that are obsolete, worn out, surplus or no longer used or useful in the conduct of business of the Company or any of its Subsidiaries);

(v)          would reasonably be expected to provide for the payment by the Company of more than $5,000,000 for the fiscal year ending September 30, 2023 that is not terminable at will by the Company or any of its Subsidiaries (or by Parent and the Surviving Company following the Closing Date) on less than 60 days’ notice without payment by the Company or any Subsidiary of the Company of any penalty; or

(vi)          requires capital expenditures in excess of $2,000,000 individually or $10,000,000 in the aggregate.

(b)          Each Material Contract is valid and binding on the Company or its Subsidiaries 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 and is enforceable against the Company or its Subsidiaries, as applicable, in accordance with its terms, 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, or except insofar as such enforceability may be limited by the Bankruptcy and Equity Exception.  Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, (i) the Company and each of its Subsidiaries, as applicable, and, to the Knowledge of the Company, any other party thereto, has performed all obligations required to be performed by it under each Material Contract and is not in breach of or default under such Material Contract, (ii) to the Knowledge of the Company, neither the Company nor any of its Subsidiaries has received notice of the existence of any event or condition which constitutes, or, after notice or lapse of time or both, will constitute, a default on the part of the Company or any of its Subsidiaries under any Material Contract and (iii) to the Knowledge of the Company, there are no events or conditions which constitute, or, after notice or lapse of time or both, will constitute a default on the part of any counterparty under such Material Contract.  From August 9, 2021 to the date of this Agreement, neither the Company nor any of its Subsidiaries have received written notice or, to the Knowledge of the Company, any other notice, from any other party to any Material Contract that it intends to (A) terminate such Material Contract or (B) seek to change, materially and adversely, the terms and conditions of such Material Contract.

SECTION 3.18.          Insurance.  Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, the Company and its Subsidiaries own or hold policies of insurance with financially sound and reputable insurers, or are self-insured, in amounts providing reasonably adequate coverage against all risks customarily insured against by companies in similar lines of business as the Company and its Subsidiaries.  All such insurance policies are in full force and effect except for any expiration thereof in accordance with the terms thereof, no written notice of cancelation or modification has been received other than in connection with ordinary renewals, all premiums due have been paid in full, no insurance claim has been disputed or denied by the applicable insurer, and there is no existing default or event which, with the giving of notice or lapse of time or both, would constitute a material breach or a material default by any insured thereunder.
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SECTION 3.19.          Opinion of Financial Advisor.  The Special Committee (in such capacity) has received the written opinion of Centerview Partners LLC (“Centerview”), as financial advisor to the Special Committee, on or prior to the date of this Agreement, that, as of the date of such written opinion, and subject to the assumptions made, procedures followed, matters considered and qualifications and limitations set forth in such written opinion, the Merger Consideration to be paid to the Public Shareholders (except as set forth in such written opinion) in the Merger is fair, from a financial point of view, to the Public Shareholders, as of the date of such written opinion.  It is agreed and understood that such opinion is for the benefit of the Special Committee and may not be relied on by Parent or Merger Sub for any purpose.  The Company shall provide to Parent, solely for informational purposes, a copy of such written opinion promptly following the execution of this Agreement.

SECTION 3.20.          Brokers and Other Advisors.  Except for Centerview, the fees (the aggregate amount of which have been disclosed to Parent or its legal counsel on or prior to the date hereof) and expenses of which will be paid by the Company, no broker, investment banker, financial advisor or other similar Person is entitled to any broker’s, finder’s, financial advisor’s or other similar fee or commission, or the reimbursement of expenses in connection therewith, in connection with the Transactions based upon arrangements made by or on behalf of the Company or any of its Subsidiaries.

SECTION 3.21.          Title to Properties and Assets.  (a)  Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, (i) the Company and its Subsidiaries have good and valid fee simple title in all parcels of Owned Real Property, free and clear of all Liens, except Permitted Liens, (ii) neither the Company nor any of its Subsidiaries have leased, licensed, or otherwise granted any Person the right to use or occupy any Owned Real Property or any portion thereof except pursuant to any Permitted Liens, and (iii) there are no outstanding options or rights of first refusal or offer granted by the Company or any of its Subsidiaries for the benefit of a third party to purchase any Owned Real Property or portion thereof.

(b)          Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, (i) the Company and its Subsidiaries have valid leasehold, subleasehold or license interests in all Leased Real Property, free and clear of all Liens, except Permitted Liens, and (ii) there exists no default or event of default under any of the Real Property Leases (or any event that with notice or lapse of time or both would become a default) on the part of the Company or any of its Subsidiaries (as applicable) or, to the Knowledge of the Company, as of the date of this Agreement, any other party to the Real Property Leases.

SECTION 3.22.          No Other Representations or Warranties.  (a)  Except for the representations and warranties expressly made by the Company in this Article III and the certificate delivered by the Company pursuant to Section 6.02(a), neither the Company nor any of its Subsidiaries, nor any other Person, has made or is making any other express or implied representation or warranty with respect to the Company or any of its Subsidiaries or their respective businesses, operations, assets, liabilities, condition (financial or otherwise) or prospects, notwithstanding the delivery or disclosure to Parent, Merger Sub or any of their respective Representatives or Affiliates of any documentation, forecasts or other information with respect to any one or more of the foregoing, and each of Parent and Merger Sub acknowledges the foregoing.
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In particular, and without limiting the generality of the foregoing, except for the representations and warranties expressly made by the Company in this Article III and the certificate delivered by the Company pursuant to Section 6.02(a), neither the Company nor any other Person makes or has made any express or implied representation or warranty to Parent, Merger Sub or any of their respective Representatives or Affiliates with respect to (i) any financial projection, forecast, estimate, budget or prospective information relating to the Company, any of its Subsidiaries or their respective businesses or (ii) any oral, written or other information presented or provided to Parent, Merger Sub or any of their respective Representatives or Affiliates in the course of their due diligence investigation of the Company and its Subsidiaries, the negotiation of this Agreement or the course of the Transactions.

(b)          Notwithstanding anything to the contrary contained in this Agreement, the Company acknowledges and agrees that neither Parent nor Merger Sub, nor any Affiliate or Representative of either of them, has made or is making any representation or warranty relating to Parent, any of its Subsidiaries or Merger Sub, whatsoever, express or implied, beyond those expressly given by Parent and Merger Sub in Article IV and the certificate delivered by the Parent and Merger Sub pursuant to Section 6.03(a), including any implied representation or warranty as to the accuracy or completeness of any information regarding Parent and its Subsidiaries furnished or made available to the Company or any of its Representatives, and that the Company has not relied on any such other representation or warranty not set forth in Article IV and the certificate delivered by the Parent and Merger Sub pursuant to Section 6.03(a).


ARTICLE IV

Representations and Warranties of Parent and Merger Sub

Parent and Merger Sub jointly and severally represent and warrant to the Company that, except as set forth in the disclosure letter delivered by Parent to the Company concurrently with the execution and delivery of this Agreement (the “Parent Disclosure Letter”) (it being understood that any information, item or matter set forth in one section or subsection of the Parent Disclosure Letter shall be deemed disclosed with respect to, and shall be deemed to apply to and qualify, the section or subsection of this Agreement to which it corresponds in number and each other section or subsection of this Agreement to the extent that it is reasonably apparent on the face of such disclosure that such information, item or matter is relevant to such other section or subsection):

SECTION 4.01.          Organization; Standing.  Parent is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware and Merger Sub is a corporation duly incorporated, validly existing and is in good standing under the laws of the State of Delaware.  Each of Parent and Merger Sub has all requisite corporate or limited liability company power and authority, as applicable, necessary to carry on its business as it is now being conducted and to own, lease and operate its assets and properties, except as would not, individually or in the aggregate, reasonably be expected to have a Parent Material Adverse Effect.  Each of Parent and Merger Sub is duly licensed or qualified to do business and is in good standing (where such concept is recognized under applicable Law) 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
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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 Parent Material Adverse Effect.

SECTION 4.02.          Authority; Noncontravention; Voting Requirements.  (a)  Each of Parent and Merger Sub has all necessary corporate power and authority to execute and deliver this Agreement and to perform its obligations hereunder and, subject to obtaining the Merger Sub Shareholder Approval, to consummate the Transactions. The execution, delivery and performance by Parent and Merger Sub of this Agreement and the consummation by Parent and Merger Sub of the Transactions, have been unanimously authorized and approved by each of the Parent Managing Member and the Merger Sub Board, as applicable, and, except for filing the Certificate of Merger with the Secretary of State pursuant to the DGCL and obtaining the Merger Sub Shareholder Approval (which approval shall be provided by the written consent of Parent as promptly as practicable following the execution of this Agreement (and in any event within 24 hours)) and Governmental Approvals, no other action (including any stockholder vote or other action) on the part of Parent or Merger Sub is necessary to authorize the execution, delivery and performance by Parent and Merger Sub of this Agreement and the consummation by Parent and Merger Sub of the Transactions.  This Agreement has been duly and validly executed and delivered by Parent and Merger Sub and, assuming due authorization, execution and delivery hereof by the Company, constitutes a legal, valid and binding obligation of each of Parent and Merger Sub, enforceable against each of them in accordance with its terms, except that such enforceability may be limited by and is subject to the Bankruptcy and Equity Exception.

(b)          The Parent Managing Member has, and the Merger Sub Board has unanimously, (i) determined that this Agreement and the Transactions, including the Merger, on the terms and subject to the conditions set forth herein, are advisable, fair to and in the best interest of, Parent and Merger Sub and (ii) adopted resolutions that have approved and declared advisable this Agreement and the Transactions, and, as of the date of this Agreement, such resolutions have not been subsequently rescinded, modified or withdrawn in any way.

(c)          Neither the execution and delivery of this Agreement by Parent and Merger Sub, nor the consummation by Parent or Merger Sub of the Transactions, nor performance or compliance by Parent or Merger Sub with any of the terms or provisions hereof, will (i) conflict with or violate any provision of the certificates or articles of incorporation, memorandum of association, by-laws or other comparable charter or organizational documents of (A) Parent or Merger Sub or (B) any of Parent’s other Subsidiaries or (ii) assuming that the Governmental Approvals and, in the case of Merger Sub, the Merger Sub Shareholder Approval are obtained, the filings referred to in Section 4.03 are made and any waiting periods thereunder have terminated or expired, in each case prior to the Effective Time, (A) violate any Law applicable to Parent or Merger Sub, (B) violate or constitute a default under (with or without notice, lapse of time or both) any of the terms, conditions or provisions of any Contract to which Parent or any of its Subsidiaries, as applicable, are bound or give rise to any right to terminate, cancel, amend, modify or accelerate Parent’s or, if applicable, any of its Subsidiaries’, rights or obligations under any such Contract, (C) give rise to any right of first refusal, preemptive right, tag-along right, transfer right or other similar right of any other party to a Contract to which Parent or any of its Subsidiaries is bound or (D) result in the creation of any Lien on any properties or assets of Parent or any of its
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Subsidiaries, except, in the case of clauses (i)(B), (i)(C) and (ii), as would not, individually or in the aggregate, reasonably be expected to have a Parent Material Adverse Effect.

(d)          The Merger Sub Shareholder Approval (which approval shall be provided by the written consent of Parent as contemplated by Section 5.11) is the only vote or approval of the holders of any class or series of shares of Merger Sub that is necessary to approve this Agreement and the Merger.

(e)          Assuming the accuracy of the representations and warranties of the Company set forth in Section 3.02, as of the date of the delivery of the Stockholder Consent, (i) the Specified Holders own a majority of the Class A Shares outstanding as of such time, (ii) the Specified Holders own a majority of (A) the Class B Shares outstanding as of such time and (B) the Class B Shares held by the stockholders party to the Stockholders Agreement as of such time and (iii) the Specified Holders own a majority of the Common Shares outstanding as of such time.

SECTION 4.03.          Governmental Approvals.  Except for the Governmental Approvals, no Consent of, or filing, declaration or registration with, any Governmental Authority is necessary for the execution and delivery of this Agreement by Parent and Merger Sub, the performance by Parent and Merger Sub of their obligations hereunder and the consummation by Parent and Merger Sub of the Transactions, other than such other Consents, filings, declarations or registrations that, if not obtained, made or given, would not, individually or in the aggregate, reasonably be expected to have a Parent Material Adverse Effect.  No Person that (i) is an Affiliate of Parent or Merger Sub and (ii) is not a party to the Equity Commitment Letter or this Agreement is required under applicable Law to make or obtain any Consent, filing, declaration or registration in connection with the Transactions.  For purposes of the HSR Act, BDT Capital Partners Fund 3, L.P. is the “ultimate parent entity” of Parent and Merger Sub.

SECTION 4.04.          Ownership and Operations of Merger Sub.  Parent owns beneficially and of record all of the issued and outstanding shares of Merger Sub, free and clear of all Liens.  Merger Sub was formed solely for the purpose of engaging in the Transactions, has no assets, liabilities or obligations of any nature other than those incidental to its formation and those in furtherance of the Transactions, and prior to the Effective Time, will not have engaged in any business activities other than those relating to the Transactions.

SECTION 4.05.          Financing.  (a)  Parent has delivered to the Company a true and complete copy of a fully executed equity commitment letter dated as of the date hereof, together with all schedules, exhibits, annexes and term sheets attached thereto (the “Equity Commitment Letter”), from BDT Capital Partners Fund 3, L.P., BDT Capital Partners Fund 3 (TE), L.P., BDT Capital Partners Fund 3 (Del), L.P. and BDT Capital Partners Fund 3 (Lux) SCSp (collectively, the “Equity Commitment Parties”) to Parent and Merger Sub providing for an equity investment in Parent, subject to the terms and conditions therein, in the aggregate amount set forth therein (the “Equity Financing”).  As of the date of this Agreement, the Equity Commitment Letter in the form delivered to the Company has not been amended or modified, no such amendment or modification is contemplated and none of the obligations and commitments contained in such Equity Commitment Letter have been withdrawn, terminated or rescinded in any respect and no such withdrawal, termination or rescission is contemplated.  Assuming the Equity Financing is funded in accordance with the Equity Commitment Letter and the satisfaction of the conditions set forth
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in Article VI, the net proceeds contemplated by the Equity Commitment Letter will in the aggregate be sufficient for Parent and Merger Sub to pay the aggregate Merger Consideration and any other amount required to be paid by Parent or Merger Sub in connection with the consummation of the Transactions, including any fees and expenses payable by Parent or Merger Sub pursuant to this Agreement.

(b)          The Equity Commitment Letter is in full force and effect and is the legal, valid, binding and enforceable obligation of Parent and each of the other parties thereto, except as enforcement may be limited by and subject to the Bankruptcy and Equity 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 constitute a default or breach on the part of any party to the Equity Commitment Letter or otherwise result in any portion of the Equity Financing contemplated hereby being unavailable or delayed.  As of the date of this Agreement, and assuming the satisfaction of the conditions set forth in Article VI, Parent does not have any reason to believe that any party to the Equity Commitment Letter will be unable to satisfy on a timely basis any term or condition of the Equity Commitment Letter required to be satisfied by it, that the conditions to the Equity Financing in the Equity Commitment Letter will not otherwise be satisfied or that the full amount of the Equity Financing will not be available on the Closing Date.  The only conditions precedent or other contingencies related to the obligations of the Equity Commitment Parties to fund the full amount of the Equity Financing are those expressly set forth in the Equity Commitment Letter as of the date hereof.  As of the date of this Agreement, there are no side letters or other Contracts, arrangements or understandings (whether oral or written and whether or not legally binding) or commitments to enter into side letters or other Contracts, arrangements or understandings (whether oral or written and whether or not legally binding) to which Parent or any of its Affiliates is a party related to the Equity Financing other than as expressly contained in the Equity Commitment Letter and delivered to the Company prior to the date of this Agreement.  For the avoidance of doubt, in no event shall the receipt or availability of any funds or financing by or to Parent or any Affiliate of Parent be a condition to any of Parent’s or Merger Sub’s obligations hereunder.  Each of the Equity Commitment Parties have uncalled capital commitments or otherwise have available funds in excess of the sum of the Subscription Commitment (as defined in the Equity Commitment Letter) of such Equity Commitment Party plus the aggregate amount of all other binding commitments and obligations such Equity Commitment Party currently has outstanding.

SECTION 4.06.          Certain Arrangements.  None of Parent, Merger Sub or any of their respective Affiliates (including any Specified Holder) has entered into any Contract, arrangement or understanding (in each case, whether oral or written), or authorized, committed or agreed to enter into any Contract, arrangement or understanding (in each case, whether oral or written), pursuant to which any holder of any Class A Shares (other than the Holdings Shares) issued and outstanding immediately prior to the Effective Time would be entitled to receive consideration of a different amount or nature than as set forth in this Agreement.  As of the date of this Agreement, there are no Contracts or other arrangements or understandings (whether oral or written) or commitments to enter into Contracts or other arrangements or understandings (whether oral or written) between Parent, Merger Sub, the Specified Holders, the Equity Commitment Parties or any of their respective Affiliates, on the one hand, and any of the Company’s directors, officers, employees or Affiliates, on the other hand, the subject of which relates to the Transactions, including the Merger.
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SECTION 4.07.          Solvency.  After giving effect to the Merger, the Surviving Company will be able to pay its debts as they become due and will own property that has a fair saleable value greater than the amounts required to pay its debts (including a reasonable estimate of the amount of all contingent liabilities).  Immediately after giving effect to the Merger, the Surviving Company will not have unreasonably small capital to carry on its businesses.  No transfer of property is being made and no obligation is being incurred in connection with the Transactions with the intent to hinder, delay or defraud either present or future creditors of the Surviving Company.

SECTION 4.08.          Brokers and Other Advisors.  No broker, investment banker, financial advisor or other similar Person is entitled to any broker’s, finder’s, financial advisor’s or other similar fee or commission, or the reimbursement of expenses in connection therewith, in connection with the Transactions based upon arrangements made by or on behalf of Parent or any of its Subsidiaries, except for Persons, if any, whose fees and expenses will be paid by Parent.

SECTION 4.09.          No Other Representations or Warranties.  (a)  Parent and Merger Sub each acknowledges that it and its Representatives have received access to such books and records, facilities, equipment, Contracts and other assets of the Company which it and its Representatives have desired or requested to review, and that it and its Representatives have had full opportunity to meet with the management of the Company and to discuss the business and assets of the Company.  Except for the representations and warranties expressly set forth in Article III and the certificate delivered by the Company pursuant to Section 6.02(a), Parent and Merger Sub hereby agree and acknowledge that (i) neither the Company nor any of its Subsidiaries, nor any other Person, has made or is making, and Parent and Merger Sub 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, assets, liabilities, condition (financial or otherwise) or prospects, including with respect to any information made available to Parent, Merger Sub or any of their respective Representatives or Affiliates or any information developed by Parent, Merger Sub or any of their respective Representatives or Affiliates based thereon and (ii) neither the Company nor any of its Subsidiaries, nor any other Person, will have or be subject to any liability to Parent or Merger Sub resulting from the delivery, dissemination or any other distribution to Parent, Merger Sub or any of their respective Representatives or Affiliates, or the use by Parent, Merger Sub or any of their respective Representatives or Affiliates, of any information made available to Parent, Merger Sub or any of their respective Representatives or Affiliates, including in any “data rooms” or management presentations, in anticipation or contemplation of any of the Transactions.  Parent and Merger Sub hereby acknowledge (each 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 and its Subsidiaries and, in making its determination to proceed with the Transactions, each of Parent, Merger Sub and their respective Affiliates and Representatives have relied on the results of their own independent investigation and have not relied on any express or implied representations or warranties regarding the Company, its Subsidiaries other than those expressly set forth in Article III and the certificate delivered by the Company pursuant to Section 6.02(a).

(b)          Except for the representations and warranties expressly made by Parent and Merger Sub in this Article IV and the certificate delivered by Parent and Merger Sub pursuant to Section 6.03(a), neither Parent, Merger Sub nor any other Person makes any other express or
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implied representation or warranty with respect to Parent or Merger Sub or their respective businesses, operations, assets, liabilities, condition (financial or otherwise) or prospects, notwithstanding the delivery or disclosure to the Company or any of its Representatives of any documentation, forecasts or other information with respect to any one or more of the foregoing, and the Company acknowledges the foregoing.

SECTION 4.10.          Non-Reliance on Company Estimates, Projections, Forecasts, Forward-Looking Statements and Business Plans.  In connection with the due diligence investigation of the Company by Parent and Merger Sub, Parent and Merger Sub 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 and its Subsidiaries and their respective businesses and operations.  Parent and Merger Sub hereby acknowledge that (a) 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, (b) Parent and Merger Sub are making their 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, forward-looking information or business plans), and (c) Parent and Merger Sub 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 any rights hereunder with respect thereto, except in respect of the representations and warranties expressly set forth in Article III or the certificate delivered by the Company pursuant to Section 6.02(a) or for intentional fraud.

SECTION 4.11.          Legal Proceedings.  Except as would not, individually or in the aggregate, reasonably be expected to have a Parent Material Adverse Effect, as of the date of this Agreement, there is no (a) pending or, to the Knowledge of Parent and Merger Sub, threatened in writing, legal or administrative proceeding, suit, arbitration or action or, to the Knowledge of Parent and Merger Sub, investigation against Parent or any of its Subsidiaries or (b) outstanding Judgment imposed upon Parent or any of its Subsidiaries or any director or officer of Parent or any of its Subsidiaries (in their capacity as such) or, to the Knowledge of Parent, any other Person for whom Parent or any of its Subsidiaries may be liable as an indemnifying party or otherwise, in each case, by or before any Governmental Authority.

SECTION 4.12.          Ownership of Common Shares.  Except as set forth in Section 4.12 of the Parent Disclosure Letter, as of the date of this Agreement, none of Parent, Merger Sub or any of their Affiliates (other than the Specified Holders) beneficially owns (within the meaning of Section 13 of the Exchange Act) or is a party to any Contract, other arrangement or understanding (whether written or oral) (other than this Agreement and between or among any of the Specified Holders or as otherwise disclosed in any Schedule 13D filing with the SEC made by any of the Specified Holders) for the purpose of acquiring, holding, voting or disposing of any Common Shares.
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ARTICLE V

Additional Covenants and Agreements

SECTION 5.01.          Conduct of Business.  (a)  Except (i) as required by applicable Law or Judgment, (ii) as expressly required by this Agreement, (iii) to the extent undertaken in connection with any COVID-19 Measures or (iv) as described in Section 5.01 of the Company Disclosure Letter, in each case, 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 Parent otherwise expressly consents in writing (such consent not to be unreasonably withheld, conditioned or delayed), the Company shall, and shall cause each of its Subsidiaries to, use its and their reasonable best efforts to (i) carry on its business in all material respects in the ordinary course of business and (ii) preserve intact in all material respects its and each of its Subsidiaries’ business organizations and existing relations with key customers, suppliers and other Persons with whom the Company or its Subsidiaries have significant business relationships and the goodwill and reputation of the Company’s and its Subsidiaries’ respective businesses; provided, however, that no action by the Company or its Subsidiaries with respect to the matters specifically addressed by any provision of Section 5.01(b) shall be deemed a breach of this Section 5.01(a) unless such action would constitute a breach of Section 5.01(b).

(b)          Except (i) as required by applicable Law or Judgment, (ii) as expressly required by this Agreement, (iii) to the extent undertaken in connection with any COVID-19 Measures or (iv) as described in Section 5.01 of the Company Disclosure Letter, in each case, 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 Parent otherwise expressly consents in writing (such consent not to be unreasonably withheld, conditioned or delayed), the Company shall not, and shall cause each of its Subsidiaries not to:

(i)          issue, sell, transfer, pledge, dispose of, grant or authorize the issuance, sale, transfer, pledge, disposition or grant of, any shares of its capital stock or other equity or voting interests, or any securities or rights convertible into, exchangeable or exercisable for, or evidencing the right to subscribe for, any shares of its capital stock or other equity or voting interests, or any rights, warrants or options to purchase any shares of its capital stock or other equity or voting interests, except any issuance of Common Shares or other securities as required pursuant to (A) the vesting, settlement or exercise of Company Equity Awards or purchase rights under the Company ESPP, in each case outstanding on the date of this Agreement in accordance with the terms of the applicable Company Equity Award or the Company ESPP, in each case in effect on the date of this Agreement, or (B) the HoldCo LLC Agreement (including, for the avoidance of doubt, any issuance of Common Shares upon a redemption of interests in HoldCo, which interests in HoldCo are issued as a result of a redemption of corresponding interests in Weber-Stephen Management Pool LLC);

(ii)          redeem, purchase or otherwise acquire, directly or indirectly, any outstanding Common Shares or other equity or voting interests of the Company or its Subsidiaries or any rights, warrants or options to acquire any Common Shares or other equity or voting interests of the Company or its Subsidiaries, except (A) pursuant to the
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Company Equity Awards or purchase rights under the Company ESPP, in each case outstanding on the date of this Agreement and in accordance with the terms of the applicable Company Equity Award or the Company ESPP, in each case in effect on the date of this Agreement, (B) in connection with the satisfaction of Tax withholding obligations with respect to Company Equity Awards or (C) as contemplated by, and pursuant to, Section 10.05(d) of the HoldCo LLC Agreement;

(iii)          establish a record date for, declare, set aside for payment or pay any dividend on, or make any other distribution in respect of, any shares of its capital stock or other equity or voting interests, or any securities or rights convertible into, exchangeable or exercisable for, or evidencing the right to subscribe for, any shares of its capital stock or other equity or voting interests, except dividends or distributions from wholly owned Subsidiaries of the Company to other wholly owned Subsidiaries of the Company or to the Company;

(iv)          split, combine, subdivide or reclassify any Common Shares or other equity or voting interests of the Company or any non-wholly owned Subsidiaries of the Company;

(v)          (A) amend the Company Organizational Documents or (B) amend in any material respect the comparable organizational documents of any of the Subsidiaries of the Company in a manner that would reasonably be expected to prevent or to impede, interfere with, hinder or delay in any material respect the consummation of the Transactions;

(vi)          adopt a plan or agreement of complete or partial liquidation or dissolution, merger, amalgamation, consolidation, restructuring, recapitalization or other reorganization of the Company or any of its Subsidiaries;

(vii)          except as required by the terms of any Company Plan or Collective Bargaining Agreement, in each case, as in effect on the date hereof:  (A) increase the compensation or other benefits payable or provided to any current or former employee, officer, director or independent contractor of the Company or any of its Subsidiaries; (B) increase or accelerate or commit to accelerate the funding, payment or vesting of compensation or benefits provided under any Company Plan; (C) grant or announce any cash or equity or equity-based incentive awards, bonus, change of control, severance or retention award to any current or former employee, officer, director or independent contractor of the Company or any of its Subsidiaries; (D) establish, adopt, enter into, terminate or materially amend any Collective Bargaining Agreement or Company Plan (or any plan, program, agreement or arrangement that would be a Company Plan if in effect on the date hereof); (E) recognize or certify any labor union, labor organization, works council or group of employees as the bargaining representative of any employees of the Company or its Subsidiaries or (F) hire or terminate (other than for “cause”) the employment of any employee of the Company or any of its Subsidiaries whose title is “Vice President” or above (other than hiring to replace a departed employee in the ordinary course of business consistent with past practice);
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(viii)          sell, pledge, dispose of, transfer, lease, sublease, license, guarantee or encumber any material asset (other than Intellectual Property), except in the ordinary course of business consistent with past practice;

(ix)          make or authorize capital expenditures or commitments therefor other than in the ordinary course of business not exceeding $5,000,000 million in the aggregate;

(x)          sell, assign, transfer, license, sublicense, abandon, cancel, terminate or dispose of, permit to lapse or fail to renew or maintain any material Company Intellectual Property, other than non-exclusive licenses in the ordinary course of business, or disclose any material Trade Secrets or other material confidential information of the Company or any of its Subsidiaries, other than pursuant to a written confidentiality and non-disclosure Contract entered into in the ordinary course of business;

(xi)          other than in the ordinary course of business and in all material respects consistent with past practice, (A) enter into or become bound by, or permit any of the assets owned by or used by it to become bound by, any Material Contract or (B) materially amend, terminate or waive any material right or remedy under any Material Contract;

(xii)          other than transactions solely between the Company and its wholly owned Subsidiaries or solely between its wholly owned Subsidiaries, acquire any business, assets or capital stock of any Person or division thereof, whether in whole or in part (and whether by purchase of stock, purchase of assets, merger, consolidation or otherwise), other than the acquisition of assets from vendors or suppliers of the Company or any of its Subsidiaries in the ordinary course of business consistent with past practice;

(xiii)          create or incur any Lien that would be material in scope and amount to the Company and its Subsidiaries taken as a whole, other than Permitted Liens or Liens securing indebtedness permitted pursuant to clause (xiv) below;

(xiv)          (A) incur, assume, guarantee or otherwise become liable for any indebtedness (directly, contingently or otherwise), other than borrowings under any existing credit facility (including the Shareholder Loan Facility or the Bridge Loan Facility) or borrowings from any trade creditor in the ordinary course of business consistent with past practice or (B) enter into any Contract related to the foregoing, including any Company Financing Agreement;

(xv)          other than with respect to any Action commenced or, to the Company’s Knowledge, threatened against the Company or its directors which relates to this Agreement or the Transactions, which shall be subject to Section 5.09, settle any Action for an amount in excess of $1,000,000 individually or $5,000,000 in the aggregate other than (A) any settlement or compromise where the amount paid or to be paid by the Company or any of its Subsidiaries is fully covered by insurance coverage (subject to any applicable retentions or deductibles) or retention amounts maintained by the Company or any of its Subsidiaries and (B) settlements or compromises of any Action for an amount not materially in excess of the amount, if any, reflected or specifically reserved in the balance sheet (or the notes thereto) of the Company included in the Company Financial
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Statements (with materiality measured relative to the amount so reflected or reserved, if any); provided that, in the case of each of the foregoing clauses (A) and (B), the settlement or compromise of such Action (x) does not impose any material restriction on the business or operations of the Company or any of its Subsidiaries (or Parent or any of its Subsidiaries after the Closing) and (y) does not include any non-monetary or injunctive relief, or the admission of wrongdoing, by the Company or any of its Subsidiaries or any of their respective officers or directors;

(xvi)          make any material changes with respect to financial accounting policies or procedures, except as required by Law or by GAAP or official interpretations thereof or by any Governmental Authority or quasi-Governmental Authority (including the Financial Accounting Standards Board or any similar organization); or

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

(c)          Except as expressly required by this Agreement, 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), neither Parent nor its Affiliates shall acquire or agree to acquire by merging or consolidating with, or by purchasing a material portion of the assets of or equity in, any Person, if doing so would reasonably be expected to (i) prevent, materially delay or materially impair the obtaining of, or adversely affect in any material respect the ability of Parent or any of its Affiliates to procure, any Consents of any Governmental Authority necessary for the consummation of the Transactions or (ii) materially increase the risk of any Governmental Authority enacting, promulgating, issuing, entering, amending or enforcing any Judgment or Law enjoining, restraining or otherwise making illegal, preventing or prohibiting the consummation of the Merger.

SECTION 5.02.          No Solicitation by the Company; Change in Recommendation.  (a)  Except as permitted by this Section 5.02, the Company shall and shall cause each of its Subsidiaries and its and their officers, employees and directors to, and shall instruct and direct its other Representatives to, (i) immediately cease any discussions or negotiations with any Persons that may be ongoing with respect to a Takeover Proposal or a Financing Proposal and (ii) from the date hereof until the Effective Time (or, if earlier, the valid termination of this Agreement in accordance with Article VII), not, directly or indirectly, (A) solicit, initiate or knowingly encourage or knowingly facilitate the making of a Takeover Proposal or a Financing Proposal, (B) engage in or otherwise participate in any discussions or negotiations regarding, or furnish to any other Person any non-public information or access to its properties or assets for the purpose of encouraging or facilitating, a Takeover Proposal or a Financing Proposal or (C) enter into any Company Acquisition Agreement or Company Financing Agreement; provided that, if the Closing has not occurred on or prior to the date that is 30 days prior to the Outside Date, the Company and any of its Subsidiaries and its and their officers, employees, directors and Representatives may, with the prior written consent (not to be unreasonably withheld, conditioned or delayed) of Parent, solicit, initiate and knowingly encourage and knowingly facilitate the making of a Financing Proposal and engage in or otherwise participate in any discussions and negotiations regarding, and furnish to any other Person any information and access to its properties and assets for the purpose of encouraging or facilitating, a Financing Proposal.  The Company shall promptly request that
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each Person (other than Parent, Merger Sub and their Representatives) that has, on or prior to the date hereof, executed a confidentiality agreement in connection with its consideration of a Takeover Proposal (or, if requested by Parent, Financing Proposal) to promptly return or destroy all confidential information furnished to such Person by or on behalf of the Company or any of its Subsidiaries or Representatives and shall promptly terminate access to all data rooms furnished in connection therewith.  The Company agrees that neither it nor any of its Subsidiaries shall terminate, waive, amend, release or modify any provision of any existing standstill or similar agreement to which it or one of its Subsidiaries is a party, except that prior to the delivery and effectiveness of the Stockholder Consent, if after consultation with, and taking into account the advice of, outside legal counsel, the Company Board or the Special Committee determines that the failure to take such action would be inconsistent with the directors’ fiduciary duties under applicable Law, the Company may waive any such standstill provision.

(b)          Notwithstanding anything contained in Section 5.02(a) or any other provision of this Agreement to the contrary, if at any time prior to the delivery and effectiveness of the Stockholder Consent, the Company receives a Takeover Proposal, which Takeover Proposal did not result from a breach of this Section 5.02 in any material respect, then (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 to clarify the terms and conditions thereof or to request that any Takeover Proposal made orally be made in writing and (ii) if the Company Board or the Special Committee determines in good faith after consultation with, and taking into account the advice of, its financial advisor and outside legal counsel that such Takeover Proposal constitutes or would reasonably be expected to lead to a Superior Proposal, then the Company and its Representatives may (x) enter into an Acceptable Confidentiality Agreement with the Person or group of Persons making the Takeover Proposal and furnish pursuant thereto information (including non-public information) with respect to the Company and its Subsidiaries 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 shall promptly provide to Parent any non-public information concerning the Company or any of its Subsidiaries that is provided to any Person or group of Persons given such access or its or their Representatives or financing sources that was not previously provided or not otherwise available to Parent or its Representatives and (y) engage in or otherwise participate in discussions or negotiations with the Person or group of Persons making such Takeover Proposal and its or their Representatives and financing sources, including to solicit the making of a revised Takeover Proposal.

(c)          The Company shall promptly (and in any event within 24 hours) notify Parent in the event that the Company or any of its Subsidiaries or its or their Representatives receives a Takeover Proposal and shall disclose to Parent the material terms and conditions of any such Takeover Proposal and copies of any written Takeover Proposal, including proposed agreements, and the identity of the Person or group of Persons making such Takeover Proposal, and the Company shall, upon the request of Parent, keep Parent reasonably informed on a prompt basis of any material developments with respect to any such Takeover Proposal (including any material changes thereto) and promptly provide to Parent after receipt or delivery thereof copies of all material correspondence and other material written materials provided to or sent by the Company or any of its Subsidiaries from or to any third party (except for the Company’s, the Company Board’s or the Special Committee’s Representatives) relating to any Takeover Proposal. The Company agrees that it and its Subsidiaries will not enter into any confidentiality agreement
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with any Person subsequent to the date of this Agreement that prohibits the Company or any of its Subsidiaries from providing any information to Parent in accordance with this Section 5.02(c).  For the avoidance of doubt, all information provided to Parent pursuant to this Section 5.02 will be subject to the terms of the Confidentiality Agreement.

(d)          Neither the Company Board, the Special Committee nor any other committee of the Company Board shall (i)(A) withhold or withdraw (or modify in a manner adverse to Parent), or publicly propose to withhold or withdraw (or modify in a manner adverse to Parent), the Company Board Recommendation, (B) recommend, approve or adopt, or publicly propose to recommend, approve or adopt, any Takeover Proposal or (C) fail to include the Company Board Recommendation in the Information Statement (any action described in this clause (i) being referred to as an “Adverse Recommendation Change”) or (ii) authorize, 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 relating to any Takeover Proposal, other than any Acceptable Confidentiality Agreement pursuant to Section 5.02(b) (each, a “Company Acquisition Agreement”).  Notwithstanding the foregoing or any other provision of this Agreement to the contrary, prior to the delivery of the Stockholder Consent, the Company Board or the Special Committee may, if the Company Board or the Special Committee has determined in good faith, after consultation with, and taking into account the advice of, its financial advisor and outside legal counsel, that failure to take such action would be inconsistent with the directors’ fiduciary duties under applicable Law, (I) make an Adverse Recommendation Change in response to an Intervening Event or (II) if a Takeover Proposal is received by the Company that did not result from any breach of this Section 5.02 in any material respect and that the Company Board or the Special Committee has determined in good faith, after consultation with, and taking into account the advice of, its financial advisor and outside legal counsel, constitutes a Superior Proposal, make an Adverse Recommendation Change or cause the Company to terminate this Agreement pursuant to Section 7.01(d)(ii) and enter into a Company Acquisition Agreement with respect to such Superior Proposal; provided that (A) the Company shall not be permitted to take any action set forth in clause (I) unless (1) the Company delivers to Parent a written notice (a “Company Notice”) advising Parent that the Company intends to take such action and reasonably specifying the reasons therefor and (2) during the period from the delivery of the Company Notice until 5:00 p.m. New York City time, on the fourth business day following the day on which the Company delivered the Company Notice (it being understood that for purposes of calculating such four business days, the first business day will be the first business day after the date of such delivery) (the “Notice Period”), if requested by Parent, the Company engages, or causes its Representatives to engage, in good faith negotiations with Parent and its Representatives regarding any changes to the terms of this Agreement so that such Intervening Event would cease to warrant an Adverse Recommendation Change and (B) the Company shall not be permitted to take any action set forth in clause (II) unless (1) the Company delivers to Parent a Company Notice, including (x) the material terms and conditions of such Takeover Proposal and the identity of the Person or group of Persons making such Takeover Proposal and (y) a copy of the then most current version of the Company Acquisition Agreement (if any) with respect to such Takeover Proposal, (2) during the Notice Period, if requested by Parent, the Company engages, or causes its Representatives to engage, in good faith negotiations with Parent and its Representatives regarding any changes to the terms of this Agreement so that such Takeover Proposal ceases to constitute a Superior Proposal and (3) after the expiration of the Notice Period, the Company Board or the Special
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Committee determines in good faith, after consultation with, and taking into account the advice of, its financial advisor and outside legal counsel, that such Takeover Proposal continues to constitute a Superior Proposal (it being understood and agreed that any change in the financial terms or any other material amendment to the terms and conditions of such Superior Proposal will require a new Company Notice and a new two‑business‑day Notice Period (it being understood that any such two‑business‑day period will be calculated in the same manner as the initial four‑business‑day period and no such new Company Notice shall reduce the initial four‑business‑day period)).  In determining whether to make an Adverse Recommendation Change or terminate this Agreement pursuant to Section 7.01(d)(ii) and enter into a Company Acquisition Agreement with respect to a Superior Proposal, the Company Board and the Special Committee will take into account any changes to the terms of this Agreement committed to in writing by Parent by 5:00 p.m., New York City time, on the last business day of the applicable Notice Period in response to a Company Notice.

(e)          Nothing contained in this Section 5.02 or elsewhere in this Agreement shall prohibit the Company, the Company Board, the Special Committee or any other committee of the Company Board from (i) taking and disclosing to stockholders of the Company a position or communication contemplated by Rule 14e-2(a), Rule 14d-9 or Item 1012(a) of Regulation M-A promulgated under the Exchange Act or (ii) making any disclosure or communication to stockholders of the Company that the Company Board, the Special Committee or any other committee of the Company Board determines in good faith, after consultation with, and taking into account the advice of, its outside legal counsel, is required by the directors’ fiduciary duties or applicable Law (provided that none of the Company, the Company Board, the Special Committee or any other committee of the Company Board may recommend a Takeover Proposal unless expressly permitted by this Section 5.02; and provided, further, that any such disclosure that has the substantive effect of withdrawing or adversely modifying the Company Board Recommendation and any such disclosure that relates to a Takeover Proposal shall in each case be deemed to be an Adverse Recommendation Change (it being understood that any “stop, look or listen” communication pursuant to Rule 14d-9(f) shall not, in and of itself, be deemed to be an Adverse Recommendation Change)).

(f)          As used in this Agreement, “Acceptable Confidentiality Agreement” means (i) any 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 and which does not restrict the Company or any of its Subsidiaries from providing the access, information or data required to be provided to Parent pursuant to this Agreement, including this Section 5.02, or (ii) any confidentiality agreement entered into prior to the date of this Agreement.

(g)          As used in this Agreement, “Intervening Event” means any material event, change, effect, condition, development, fact or circumstance with respect to the Company and its Subsidiaries or their respective businesses that (i) becomes actually known to the Company Board or the Special Committee after the execution and delivery of this Agreement and (ii) does not relate to any Takeover Proposal; provided that none of the foregoing shall constitute an Intervening Event:  (A) the Company or any of its Subsidiaries meeting or exceeding any internal or public projection, budget, forecast, estimate or prediction in respect of revenues, earnings or other financial or operating metrics for any period (it being understood that the underlying facts or
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occurrences may be considered an Intervening Event to the extent otherwise satisfying the terms of this definition) or (B) any change in and of itself in the market price or trading volume of Class A Shares on the New York Stock Exchange or any change in the credit ratings or the ratings outlook for the Company or any of its Subsidiaries or any of their respective securities or any going concern disclosure in any reports, schedules, forms, statements and other documents filed by the Company with the SEC (it being understood that the underlying facts or occurrences giving rise to such change may be considered an Intervening Event to the extent otherwise satisfying the terms of this definition).

(h)          As used in this Agreement, “Takeover Proposal” means any inquiry, proposal or offer (whether or not in writing) from any Person or group of Persons (other than Parent and its Subsidiaries) relating to, in a single transaction or series of related transactions, any direct or indirect (i) acquisition that would result in any Person or group of Persons owning 15% or more of the assets (based on the fair market value thereof, as determined in good faith by the Company Board, the Special Committee or any other committee of the Company Board), revenues or net income of the Company and its Subsidiaries, taken as a whole, (ii) acquisition of Common Shares representing 15% or more of the outstanding Class A Shares, Class B Shares or Common Shares, (iii) tender offer or exchange offer that would result in any Person or group of Persons having beneficial ownership of Common Shares representing 15% or more of the outstanding Class A Shares, Class B Shares or Common Shares or (iv) merger, amalgamation, consolidation, share exchange, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company pursuant to which such Person or group of Persons (or the shareholders of any Person or group of Persons) would acquire, directly or indirectly, 15% or more of the aggregate voting power of the Company or of the surviving entity in such transaction or the resulting direct or indirect parent of the Company or such surviving entity, in each case, other than the Transactions.

(i)          As used in this Agreement, “Superior Proposal” means any bona fide written Takeover Proposal that was not the result of a breach of this Section 5.02 in any material respect and that the Company Board or the Special Committee has determined in good faith, after consultation with, and taking into account the advice of, its financial advisor and outside legal counsel, and taking into account all relevant (in the view of the Company Board or the Special Committee) legal, regulatory, financial and other aspects, including the risk and timing of consummation of such proposal and any changes to the terms of this Agreement committed to by Parent in response to such Superior Proposal, would be more favorable to the Public Shareholders than the Merger; provided that, for purposes of this definition of “Superior Proposal”, the references to 15% in the definition of Takeover Proposal shall be deemed to be a reference to 50%.

(j)          As used in this Section 5.02, “group” has the meaning ascribed to it in Rule 13d‑5 promulgated under the Exchange Act.

SECTION 5.03.          Delivery of Stockholder Consent.  (a)  Parent shall use its reasonable best efforts to obtain from the Specified Holders and deliver to the Company as promptly as practicable following the execution and delivery of this Agreement a duly executed written consent substantially in the form attached hereto as Exhibit B (the “Stockholder Consent”) to approve and adopt this Agreement in accordance with Section 228 and Section 251(c) of the DGCL.
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(b)          In connection with the Stockholder Consent, Parent, Merger Sub and the Company shall take all actions necessary or advisable to comply in all material respects, and shall comply in all material respects, with the DGCL, including Section 228 and Section 262 thereof, and the Company Organizational Documents.

SECTION 5.04.          Preparation of Schedule 13E-3.  (a)  As promptly as reasonably practicable after the delivery of the Stockholder Consent, the Company shall prepare and file with the SEC a written information statement of the type contemplated by Rule 14c-2 of the Exchange Act containing (i) the information specified in Schedule 14C under the Exchange Act concerning the Stockholder Consent and the Merger, (ii) the notice of action by written consent required by Section 228(e) of the DGCL and (iii) the notice of availability of appraisal rights and related disclosure required by Section 262 of the DGCL (including all exhibits and any amendments or supplements thereto, the “Information Statement”).  The Company, Parent and Merger Sub shall cooperate to, concurrently with the preparation and filing of the Information Statement, jointly prepare and file with the SEC the Rule 13E-3 transaction statement on Schedule 13E-3 with respect to the Transactions, including the Stockholder Consent and the Merger (including all exhibits and any amendments or supplements thereto, the “Schedule 13E-3”).

(b)          The Company shall use its reasonable best efforts so that the Information Statement will comply as to form in all material respects with the requirements of the Exchange Act.  Each of the Company, Parent and Merger Sub shall use its reasonable best efforts so that the Schedule 13E-3 will comply as to form in all material respects with the requirements of the Exchange Act.  Each of the Company, Parent and Merger Sub shall use its reasonable best efforts to respond (with the assistance of, and after consultation with, each other as provided by this Section 5.03(b)) promptly to any comments of the SEC with respect to the Information Statement and the Schedule 13E-3 and to resolve comments from the SEC.  Each of the Company, Parent and Merger Sub shall furnish all information concerning such party or its Affiliates (as applicable) to the others as may be reasonably requested in connection with the preparation, filing and distribution of the Information Statement and the Schedule 13E-3 and the resolution of comments with respect thereto from the SEC.  Each of the Company, Parent and Merger Sub shall promptly notify the other parties hereto upon the receipt of any comments from the SEC or its staff or any request from the SEC or its staff for amendments or supplements to the Information Statement or the Schedule 13E-3 and shall provide such other parties with copies of all correspondence between it and its Representatives, on the one hand, and the SEC and its staff, on the other hand.  Prior to filing the Information Statement or the Schedule 13E-3 (including, in each case, any amendment or supplement thereto) or responding to any comments of the SEC with respect thereto, the Company (i) shall provide Parent and Merger Sub with a reasonable period of time to review and comment on such document or response and (ii) shall make all additions, deletions or changes reasonably proposed by Parent in good faith.

(c)          If any event, circumstance or information relating to Parent, Merger Sub or the Company, or their respective Affiliates, officers or directors, should be discovered that should be set forth in an amendment or a supplement to the Information Statement or the Schedule 13E-3 so that such document would 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, the party discovering such event, circumstance or information shall promptly inform the other parties and an appropriate
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amendment or supplement describing such event, circumstance or information shall be promptly filed with the SEC and disseminated to the stockholders of the Company to the extent required by Law; provided that, prior to such filing, the Company and Parent, as the case may be, shall consult with each other with respect to such amendment or supplement and shall afford the other party hereto and its Representatives a reasonable opportunity to comment thereon.

(d)          The Company shall cause the Information Statement and the Schedule 13E‑3 to be mailed to stockholders of the Company as promptly as practicable after confirmation from the SEC that it will not review, or that it has completed its review of, the Information Statement and the Schedule 13E-3, which confirmation will be deemed to occur if the SEC has not affirmatively notified the Company prior to the 10th calendar day after making the initial filing of the preliminary Information Statement and the preliminary Schedule 13E-3 that the SEC will or will not be reviewing the Information Statement or the Schedule 13E-3.

(e)          Each of Parent, Merger Sub and the Company agrees, as to itself and its respective Affiliates or Representatives, that none of the information supplied or to be supplied by Parent, Merger Sub or the Company, as applicable, expressly for inclusion or incorporation by reference in the Information Statement, the Schedule 13E-3 or any other documents filed or to be filed with the SEC in connection with the Transactions, will, as of the time such documents (or any amendment or supplement thereto) are mailed to the Company’s stockholders, 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; provided, however, that no representation, warranty, covenant or agreement is made by Parent or Merger Sub with respect to information supplied by or on behalf of the Company or any of its Subsidiaries and no representation, warranty, covenant or agreement is made by the Company with respect to information supplied by or on behalf of Parent, Merger Sub or any of their respective Affiliates, in each case for inclusion or incorporation by reference in the Information Statement, the Schedule 13E‑3 or such other document, as applicable.  Each of Parent, Merger Sub and the Company further agrees that all documents that such party is responsible for filing with the SEC in connection with the Merger will comply as to form and substance in all material respects with the applicable requirements of the Securities Act, the Exchange Act and any other applicable Laws and that all information supplied by such party for inclusion or incorporation by reference in such document 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 were made, not misleading.

(f)          Subject to Section 5.02, the Company Board shall make the Company Board Recommendation and shall include such recommendation in the Information Statement.  For the avoidance of doubt, nothing in this Section 5.04 shall limit or preclude the ability of the Company Board or the Special Committee to effect an Adverse Recommendation Change pursuant to and in accordance with Section 5.02.

SECTION 5.05.          Reasonable Best Efforts.  (a)  On the terms and subject to the conditions of this Agreement, each of the parties hereto shall cooperate with the other parties hereto and use (and shall cause their respective Subsidiaries to use) their respective reasonable best efforts (unless, with respect to any action, another standard of performance is expressly provided for
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herein) to promptly (i) take, or cause to be taken, all actions, and do, or cause to be done, and assist and cooperate with the other parties hereto in doing, all things necessary, proper or advisable to cause the conditions to Closing set forth in Article VI applicable to such party 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 the notification and related materials required by the HSR Act (such filing to occur no later than 10 business days following the date hereof) and any other documentation to effect all necessary filings, notices, petitions, statements, registrations, submissions of information, applications and other documents or instruments necessary to consummate the Transactions, (ii) satisfy the requirements of the HSR Act and obtain all Consents from any Governmental Authority or third party necessary, proper or advisable to consummate the Transactions, including any such Consents required under any applicable Antitrust Laws, including the HSR Act, (iii) take all steps that are necessary, proper or advisable to avoid any Actions by any Governmental Authorities with respect to this Agreement or the Transactions and (iv) defend or contest in good faith any Action by any third party (excluding any Governmental Authority), whether judicial or administrative, challenging this Agreement or that otherwise would reasonably be expected to prevent or impede, interfere with, hinder or delay in any material respect the consummation of the Transactions.  Notwithstanding anything in this Agreement to the contrary, nothing in this Section 5.05 or elsewhere in this Agreement shall require Parent or Merger Sub to take or agree to take any action with respect to any of its Affiliates (including any Person in which any of its Affiliates has any debt or equity investment and any affiliated or commonly advised investment fund) or any direct or indirect portfolio companies (as such term is understood in the private equity industry) thereof.

(b)          Without limiting the generality of Section 5.05(a), each of the Company, Parent and Merger Sub shall:  (i) give the other parties hereto prompt notice of the making or commencement of any request or proceeding by or before any Governmental Authority with respect to the Transactions; (ii) keep the other parties hereto informed as to the status of any such request or proceeding; (iii) give the other parties hereto notice and an opportunity to participate in any substantive communication made to any Governmental Authority regarding the Transactions; and (iv) promptly notify the other parties hereto of any communication from any Governmental Authority regarding the Transactions.  Subject to applicable Laws relating to the exchange of information, Parent and the Company shall have the right to review in advance, and each will consult with the other on and consider in good faith the views of the other in connection with, any filing made with, or substantive written materials submitted or substantive communication made to, any Governmental Authority in connection with the Transactions (other than the Information Statement and the Schedule 13E‑3 which are the subject of Section 5.03).  In addition, except as may be prohibited by any Governmental Authority or by any applicable Law, each party hereto will permit authorized representatives of the other parties hereto to be present at each non-ministerial meeting, conference, videoconference, or telephone call and to have access to and be consulted in connection with any presentation, letter, white paper or proposal made or submitted to any Governmental Authority in connection with any such request or proceeding.  In exercising the foregoing rights, each of the Company and Parent shall act reasonably and as promptly as practicable.  The Company, Parent and Merger Sub may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 5.05 as “outside counsel only”.  Such materials and the information contained therein shall 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 permission is obtained
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in advance from the source of the materials (the Company, Parent or Merger Sub, as the case may be).  Materials provided pursuant to this Section 5.05 may be redacted (i) to remove references concerning the valuation of the Company, (ii) as necessary to comply with contractual obligations and (iii) as necessary to address reasonable privilege concerns.

(c)          Subject to and upon the terms and conditions of this Agreement, the Company, Parent and Merger Sub shall each use its reasonable best efforts to (i) take all action necessary to ensure that no Takeover Law is or becomes applicable to any of the Transactions or this Agreement 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 necessary to ensure that the Transactions, including the Merger, 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.

SECTION 5.06.          Public Announcements.  Parent and Merger Sub, on the one hand, and the Company, on the other hand, shall consult with each other before issuing, and give each other the reasonable opportunity to review and comment upon, any press release or other public statements with respect to the Transactions, and shall not (and shall not cause or permit their respective Subsidiaries or Representatives to) issue any such press release or make any such public statement prior to such consultation, except as may be required by applicable Law, Judgment, court process or the rules and regulations of any national securities exchange or national securities quotation system or to the extent related to any actual or contemplated litigation between or among the parties hereto.  The parties hereto agree that the initial press release to be issued with respect to the Transactions following execution of this Agreement shall be in a form reasonably acceptable to each party hereto.  Notwithstanding the foregoing, (a) Parent and the Company may make any oral or written public announcements, releases or statements without complying with the foregoing requirements if the substance of such announcements, releases or statements was publicly disclosed and previously subject to the foregoing requirements and (b) Parent, Merger Sub and their respective Affiliates may, without consultation or consent, make ordinary course disclosure and communication to existing or prospective general or limited partners, equity holders, members, managers or investors of such Person or any Affiliate of such Person, in each case who are subject to customary confidentiality restrictions.

SECTION 5.07.          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 shall (a) afford to Parent and Parent’s Representatives reasonable access during normal business hours to the Company’s officers, employees, agents, properties, books, Contracts and records and (b) furnish to Parent and Parent’s Representatives such information concerning its business, personnel, assets, liabilities and properties as Parent may reasonably request; provided that Parent and its Representatives shall conduct any such activities in such a manner as not to interfere unreasonably with the business or operations of the Company; provided, further, however, that the Company shall not be obligated to provide such access or information if the Company determines, in its reasonable judgment after consultation with Parent, that doing so would reasonably be expected to (i) violate applicable Law, (ii) waive the protection of an attorney-client privilege, attorney work product protection or other legal privilege, (iii) be adverse to the interests of the Company or any of its Subsidiaries in any pending or threatened
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Action against Parent or any of its Affiliates or (iv) involve documents or information relating to the evaluation or negotiation of this Agreement or the Transactions.  Without limiting the foregoing, in the event that the Company does not provide access or information in reliance on the immediately preceding sentence, it shall provide notice to Parent that it is withholding such access or information and the basis for such withholding and shall use its reasonable best efforts to make appropriate substitute arrangements under circumstances in which the harms described in the foregoing clauses (i) through (iv) would not apply or, to the extent such arrangements are not feasible, to provide, to the extent feasible, the applicable access or information in a way that would not result in the harms described in the foregoing clauses (i) through (iv); provided that the Company shall not be required to provide such substitute arrangements or access or information to the extent the Company would incur third party fees or expenses in connection therewith.  All requests for information made pursuant to this Section 5.07 shall be directed to the Person designated by the Company.

SECTION 5.08.          Equity Financing.  (a)  On the terms and subject to the conditions of this Agreement, each of Parent and Merger Sub will not, without the prior written consent of the Company, effect or permit any amendment or modification to be made to, or any waiver of any provision or remedy pursuant to, the Equity Commitment Letter if such amendment, modification or waiver would reasonably be expected to (i) reduce the aggregate amount of the Equity Financing, (ii) impose new or additional conditions or other terms or otherwise expand, amend or modify any of the conditions to the receipt of the Equity Financing or any other terms to the Equity Financing in a manner that would reasonably be expected to (A) materially delay or prevent the Closing or (B) make the timely funding of the Equity Financing, or the satisfaction of the conditions to obtaining the Equity Financing, less likely to occur in any material respect or (iii) adversely impact the ability of Parent, Merger Sub or the Company, as applicable, to enforce its rights against the Equity Commitment Parties under the Equity Commitment Letter.

(b)          On the terms and subject to the conditions set forth herein, prior to the Effective Time, Parent and Merger Sub shall each use its respective reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper and advisable to consummate and obtain the Equity Financing on the terms and conditions described in the Equity Commitment Letter, including using its reasonable best efforts to (i) maintain in effect the Equity Commitment Letter, (ii) satisfy on a timely basis all conditions to funding that are applicable to Parent and Merger Sub in the Equity Commitment Letter that are within its control, (iii) consummate the Equity Financing at or prior to the Closing, (iv) comply with its obligations pursuant to the Equity Commitment Letter and (v) enforce its rights pursuant to the Equity Commitment Letter.  Nothing in this Agreement shall require, and in no event shall the reasonable best efforts of Parent and Merger Sub be deemed or construed to require, either Parent or Merger Sub to seek the Equity Financing from any source other than the Equity Commitment Parties, or in excess of the amount contemplated by, the Equity Commitment Letter. Parent and Merger Sub shall give the Company prompt notice of, and keep the Company informed on a reasonably current basis and in reasonable detail of, (i) any actual or potential breach, default, termination or repudiation by any party to the Equity Commitment Letter of which Parent or Merger Sub becomes aware, including the receipt of any written notice or communication with respect thereto, and (ii) the occurrence of an event or development that would reasonably be expected to adversely impact the ability of Parent or Merger Sub to obtain all or a portion of the Equity Financing at or prior to the Closing.
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SECTION 5.09.          Notification of Certain Matters; Litigation.  During the period from the date of this Agreement through the earlier of the Effective Time and the valid termination of this Agreement pursuant to Section 7.01, except for any Action between the Company or its Subsidiaries, on the one hand, and Parent, Merger Sub or its Affiliates, on the other hand, (a) the Company shall give prompt notice to Parent of any Action commenced or, to the Company’s Knowledge, threatened against the Company or its directors which relates to this Agreement or the Transactions, and the Company shall keep Parent reasonably informed regarding any such Action and (b) the Company shall give Parent the opportunity to participate in (but not to control), at Parent’s sole cost and expense, the defense and settlement of any litigation against the Company relating to this Agreement or the Transactions, including the opportunity to review and comment on all filings related to such litigation, and no such settlement shall be proposed or agreed to without Parent’s prior written consent.

SECTION 5.10.          Merger Sub Shareholder Approval.  As promptly as practicable (and in any event within 24 hours) following the execution of this Agreement, Parent shall execute and deliver, in accordance with the DGCL and in its capacity as the sole stockholder of Merger Sub, the Merger Sub Shareholder Approval.

SECTION 5.11.          Stock Exchange De-listing.  The Surviving Company shall use its reasonable best efforts to cause the Class A Shares to be de-listed from the New York Stock Exchange and de-registered under the Exchange Act as soon as reasonably practicable following the Effective Time.

SECTION 5.12.          Cooperation with Debt Financing.  The Company and the Surviving Company shall use their reasonable best efforts to, and shall cause their Subsidiaries and their respective Representatives to use their reasonable best efforts to, provide such cooperation in connection with the arrangement of any debt financing for the Surviving Company or any of its Subsidiaries as may be reasonably requested by Parent, including participating in a reasonable number of meetings, presentations and sessions with prospective financing sources and investors, including direct contact between appropriate members of senior management of the Company, on the one hand, and the prospective debt financing sources and investors to the Surviving Company, their Affiliates and each of their respective Representatives, on the other hand; provided that, notwithstanding anything in this Agreement to the contrary, (a) the Company shall be deemed to have complied with this Section 5.12 for all purposes of this Agreement (including Article VI) unless the failure to obtain such debt financing results from the Company’s Willful Breach of its obligations under this Section 5.12) and (b) any action taken by the Company or any of its Subsidiaries or their respective Representatives at the request of Parent pursuant to this Section 5.12 shall be deemed to be permitted by Section 5.01(b)(xiv) and Section 5.02(a).

SECTION 5.13.          Indemnification.  (a)  During the period commencing at the Effective Time and ending on the sixth anniversary of the date on which the Effective Time occurs, Parent shall cause the Surviving Company to indemnify, defend and hold harmless, to the fullest extent permitted under applicable Law, all past and present officers and directors (or equivalent) of the Company and each Subsidiary thereof (the “Indemnified Parties”), in each case when acting in such capacity or in serving as a director, officer, member, trustee or fiduciary of another Person, including a Company Plan, at the request or for the benefit of the Company, against any costs or expenses (including attorneys’ fees and expenses), amounts paid in settlement, judgments, fines,
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losses, claims, damages or liabilities incurred in connection with, arising out of or otherwise related to any actual or alleged Action, in connection with, arising out of or otherwise related to matters existing or occurring or alleged to have occurred prior to or at the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, including Actions to enforce this provision or any other indemnification or advancement right of any Indemnified Party, and Parent shall also cause the Surviving Company to advance expenses as incurred in respect of the foregoing to the fullest extent permitted under applicable Law.  In the event of any such actual or alleged Action, Parent and the Surviving Company shall cooperate with the Indemnified Party in the defense of any such actual or alleged Action.  During the period commencing at the Effective Time and ending on the sixth anniversary of the date on which the Effective Time occurs, Parent shall cause the Surviving Company to maintain in effect exculpation, indemnification and advancement of expenses equivalent to the provisions of the Company Organizational Documents as in effect as of the date hereof; provided that all rights to indemnification in respect of any claim made for indemnification within such period shall continue until the disposition of the Action underlying such claim or resolution of such claim.  During the period commencing at the Effective Time and ending on the sixth anniversary of the date on which the Effective Time occurs, Parent shall cause the Surviving Company to honor all indemnification Contracts between any Indemnified Party in effect prior to the date of this Agreement and to not amend, repeal or otherwise modify any such Contracts in any manner that would adversely affect the rights thereunder of the applicable Indemnified Parties.

(b)          Following the Effective Time, the Surviving Company shall purchase a prepaid “tail” policy with respect to the Company’s current directors’ and officers’ liability insurance tower, with an extended reporting period ending on the sixth anniversary of the date on which the Effective Time occurs, from the Company’s current directors’ and officers’ liability insurance carriers or insurance carriers with the same or better credit rating as the Company’s current directors’ and officers’ liability insurance carriers; provided that the maximum amount that the Surviving Company shall be required to pay to obtain any such “tail” policy shall not exceed 350% of the amount paid by the Company for coverage in the last twelve-month period ending on September 30, 2022 (the “Maximum Annual Premium”); provided, further, that, if such amount would exceed the Maximum Annual Premium, then the Surviving Company shall be obligated to obtain a “tail” policy with the greatest coverage available for a cost not exceeding the Maximum Annual Premium from insurance carriers with the same or better credit rating as the Company’s current directors’ and officers’ liability insurance carriers.  The Surviving Company shall (and Parent shall cause the Surviving Company to) maintain such “tail” policy in full force and effect and continue to honor its obligations thereunder for so long as such “tail” policy is in full force and effect.

(c)          Notwithstanding anything contained in this Agreement to the contrary, this Section 5.13 shall survive the consummation of the Closing indefinitely.  In the event that Parent or the Surviving Company or any of their respective successors or assigns (i) consolidates with or merges into any other Person, or (ii) transfers all or substantially all of its properties or assets to any Person, then, and in each case, the successors and assigns of Parent or the Surviving Company, as the case may be, shall expressly assume and be bound by the obligations set forth in this Section 5.13.
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(d)          The obligations of Parent and the Surviving Company under this Section 5.13 shall not be terminated or modified in such a manner as to adversely affect any Indemnified Party to whom this Section 5.13 applies without the written consent of such affected Indemnified Party, unless such termination or modification is required by applicable Law.


ARTICLE VI

Conditions Precedent

SECTION 6.01.          Conditions to Each Party’s Obligation to Effect the Merger.  The respective obligations of the Company, Parent and Merger Sub to effect the Merger shall be subject to the satisfaction (or written waiver by the Company and Parent, if permissible under applicable Law) at or prior to the Closing of the following conditions:

(a)          Required Stockholder Approval.  The Required Stockholder Approval shall have been obtained in accordance with applicable Law and the Company Organizational Documents.

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

(c)          Information Statement.  At least 20 calendar days shall have elapsed since the Company mailed to the stockholders of the Company the Information Statement as contemplated by Regulation 14C of the Exchange Act (including Rule 14c-2 promulgated under the Exchange Act).

(d)          HSR Act.  The waiting period (and any extension thereof) applicable to the consummation of the Transactions, including the Merger, under the HSR Act shall have expired or early termination thereof shall have been granted.

SECTION 6.02.          Conditions to Obligations of Parent and Merger Sub.  The obligations of Parent and Merger Sub to effect the Merger are further subject to the satisfaction (or written waiver by Parent, if permissible under applicable Law) at or prior to the Closing of the following conditions:

(a)          Representations and Warranties.  The representations and warranties of the Company (i) set forth in Sections 3.03(e), 3.06(b) and 3.19 shall be true and correct in all respects as of the Closing as though made on and as of such time (except to the extent expressly made as of an earlier date, in which case as of such earlier date), (ii) set forth in Section 3.02(a) and the first sentence of Section 3.02(b) shall be true and correct in all respects (except for any inaccuracies that would not adversely affect the validity or enforceability of the Stockholder Consent or increase the aggregate number of Common Shares issued and outstanding as of the time specified in such representations and warranties on a fully diluted basis by more than 150,000 Common Shares) as of the Closing as though made on and as of such time (except to the extent expressly made as of an earlier date, in which case as of such earlier date), (iii) set forth in Sections 3.01, 3.02 (other
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than Section 3.02(a) and the first sentence of Section 3.02(b)), 3.03(a), 3.03(b), 3.03(c) and 3.20 shall be true and correct in all material respects as of the Closing as though made on and as of such time (except to the extent expressly made as of an earlier date, in which case as of such earlier date) and (iv) set forth in the Sections of Article III other than those Sections specifically identified in clauses (i), (ii) or (iii) of this Section 6.02(a) shall be true and correct (disregarding all qualifications or limitations as to “materiality”, “Material Adverse Effect” and words of similar import set forth therein) as of the Closing as though made on and as of such time (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.  Parent shall have received a certificate signed on behalf of the Company by an executive officer of the Company (in such executive officer’s capacity as such and without personal liability) to such effect.

(b)          Performance of Obligations and Agreements of the Company and the Rolling Shareholders.  The Company shall have performed or complied with in all material respects the obligations and agreements required to be performed or complied with by it under this Agreement at or prior to the Effective Time, and Parent shall have received a certificate signed on behalf of the Company by an executive officer of the Company (in such executive officer’s capacity as such and without personal liability) to such effect.

SECTION 6.03.          Conditions to Obligations of the Company.  The obligations of the Company to effect the Merger are further subject to the satisfaction (or written waiver by the Company, if permissible under applicable Law) at or prior to the Closing of the following conditions:

(a)          Representations and Warranties.  The representations and warranties of Parent and Merger Sub (i) set forth in Sections 4.01, 4.02(a), 4.02(b), 4.02(d), 4.05 and 4.09 shall be true and correct in all material respects as of the Closing as though made on and as of such time (except to the extent expressly made as of an earlier date, in which case as of such date) and (ii) set forth in the Sections of Article IV other than those Sections specifically identified in clause (i) of this Section 6.03(a) shall be true and correct (disregarding all qualifications or limitations as to “materiality”, “Parent Material Adverse Effect” and words of similar import set forth therein) as of the Closing as though made on and as of such time (except to the extent expressly made as of an earlier date, in which case as of such 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 Parent Material Adverse Effect.  The Company shall have received a certificate signed on behalf of Parent by an executive officer of Parent (in such executive officer’s capacity as such and without personal liability) to such effect.

(b)          Performance of Obligations and Agreements of Parent and Merger Sub.  Each of Parent and Merger Sub shall have performed or complied with in all material respects the obligations and agreements required to be performed or complied with by it under this Agreement at or prior to the Effective Time, and the Company shall have received a certificate signed on behalf of Parent by an executive officer of Parent (in such executive officer’s capacity as such and without personal liability) to such effect.
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SECTION 6.04.          Frustration of Closing Conditions.  The Company may not rely on the failure of any condition set forth in Section 6.01 or Section 6.03 to be satisfied if the failure of the Company to perform in all material respects any of its obligations under this Agreement, including to use its reasonable best efforts to consummate the Transactions, as required by and subject to the terms of this Agreement, was the primary cause of or primarily resulted in the failure of such condition to be satisfied.  Neither Parent nor Merger Sub may rely on the failure of any condition set forth in Section 6.01 or Section 6.02 to be satisfied if the failure of Parent or Merger Sub to perform in all material respects any of its obligations under this Agreement, including to use its reasonable best efforts to consummate the Transactions, as required by and subject to the terms of this Agreement, was the primary cause of or primarily resulted in the failure of such condition to be satisfied.


ARTICLE VII

Termination

SECTION 7.01.          Termination.  This Agreement may be terminated and the Transactions abandoned at any time prior to the Effective Time (except as otherwise expressly noted):

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

(b)          by either of the Company or Parent:

(i)          if the Merger shall not have been consummated on or prior to June 11, 2023 (the “Outside Date”); provided that the right to terminate this Agreement under this Section 7.01(b)(i) shall (A) not be available to any party if the failure of such party to perform in all material respects any of its obligations under this Agreement, including to use its reasonable best efforts to consummate the Transactions as required by and subject to the terms of this Agreement (including Section 5.05), was the primary cause of or primarily resulted in the failure of the Merger to be consummated on or prior to such date (it being understood that Parent and Merger Sub shall be deemed a single party for purposes of the foregoing proviso) and (B) be subject to the proviso set forth in Section 7.01(d)(iii); or

(ii)          if any Restraint having the effect set forth in Section 6.01(b) shall be in effect and shall have become final and nonappealable; provided that the party seeking to terminate this Agreement pursuant to this Section 7.01(b)(ii) shall have performed in all material respects its obligations under this Agreement and used its reasonable best efforts to prevent the entry of and to remove such Restraint in accordance with its obligations under this Agreement;

(c)          by Parent:

(i)          if the Company shall have breached any of its representations or warranties or failed to perform any of its obligations or agreements set forth in this Agreement, which breach or failure to perform (A) would give rise to the failure of a condition set forth in
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Section 6.02(a) or 6.02(b) and (B) is not reasonably capable of being cured prior to the Outside Date or, if reasonably capable of being cured prior to the Outside Date, has not been cured within the earlier of (1) 30 days following receipt by the Company of written notice of such breach or failure to perform from Parent stating Parent’s intention to terminate this Agreement pursuant to this Section 7.01(c)(i) and the basis for such termination and (2) one business day prior to the Outside Date; provided that Parent shall not have the right to terminate this Agreement pursuant to this Section 7.01(c)(i) if Parent or Merger Sub is then in breach of any of its representations, warranties, obligations or agreements hereunder, which breach would give rise to a failure of a condition set forth in Section 6.03(a) or 6.03(b); or

(ii)          prior to the delivery of the Stockholder Consent, if an Adverse Recommendation Change shall have occurred; or

(d)          by the Company:

(i)          if Parent or Merger Sub shall have breached any of its representations or warranties or failed to perform any of its obligations or agreements 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) or 6.03(b) and (B) is not reasonably capable of being cured prior to the Outside Date or, if reasonably capable of being cured prior to the Outside Date, has not been cured within the earlier of (1) 30 days following receipt by Parent or Merger Sub of written notice of such breach or failure to perform from the Company stating the Company’s intention to terminate this Agreement pursuant to this Section 7.01(d)(i) and the basis for such termination and (2) one business day prior to 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, obligations or agreements hereunder, which breach would give rise to a failure of a condition set forth in Section 6.02(a) or 6.02(b);

(ii)          prior to the delivery of the Stockholder Consent, in connection with entering into a Company Acquisition Agreement in accordance with clause (II) of the second sentence of Section 5.02(d); provided that, prior to or concurrently with such termination, the Company pays or causes to be paid the Company Termination Fee;

(iii)          if (A) the conditions set forth in Section 6.01 and Section 6.02 have been satisfied or waived (other than those conditions that by their nature are to be satisfied by actions taken at the Closing so long as such conditions would be satisfied if the Closing Date were the date of termination of this Agreement), (B) the Company has confirmed by written irrevocable notice to Parent that all conditions set forth in Section 6.03 have been satisfied (other than those conditions that by their nature are to be satisfied by actions taken at the Closing so long as such conditions would be satisfied if the Closing Date were the date of such notice) or that it is willing to waive any unsatisfied conditions set forth in Section 6.03, (C) the Merger is required to be consummated pursuant to Section 1.06 and (D) Parent and Merger Sub fail to consummate the Merger within five business days after the later of (1) receipt by Parent of the notice referred to in clause (B) and (2) the date the Merger was required to be consummated pursuant to Section 1.06; provided that,
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notwithstanding anything in Section 7.01(b)(i) to the contrary, no party shall be permitted to terminate this Agreement pursuant to Section 7.01(b)(i) during such five‑business‑day period; or

(iv)          if the duly executed Stockholder Consent is not received by the Company or the Merger Sub Shareholder Approval is not received by the Company, in each case, within 24 hours following the execution and delivery of this Agreement.

SECTION 7.02.          Effect of Termination.  In the event of the termination of this Agreement as provided in Section 7.01, written notice thereof shall be given to the other party or parties hereto, specifying the provision hereof pursuant to which such termination is made, and this Agreement shall forthwith become null and void (other than Sections 7.02 and 7.03, and Article VIII), and there shall be no liability on the part of Parent, Merger Sub, the Company or their respective directors, officers and Affiliates, except as liability may exist pursuant to the provisions specified in the immediately preceding parenthetical that survive such termination; provided that no such termination shall relieve any party from liability for any Willful Breach or intentional fraud.

SECTION 7.03.          Termination Fee and Expense Reimbursement.  (a)In the event that this Agreement is terminated by:

(i)          the Company pursuant to Section 7.01(d)(ii); or

(ii)          Parent pursuant to Section 7.01(c)(ii);

then, in each case, the Company shall pay or cause to be paid the Company Termination Fee to Parent or its designee by wire transfer of same-day funds (x) in the case of any such termination by Parent, within two business days after such termination, or (y) in the case of any such termination by the Company, simultaneously with such termination; it being understood that in no event shall the Company be required to pay or cause to be paid the Company Termination Fee more than once.  As used herein, “Company Termination Fee” means a cash amount equal to $5,500,000.

(b)          The Company acknowledges that the agreements contained in this Section 7.03 are an integral part of the Transactions, and that, without these agreements, Parent and Merger Sub would not have entered into this Agreement; accordingly, if the Company fails to timely pay the Company Termination Fee to Parent and, in order to obtain the Company Termination Fee, Parent commences an Action that results in a judgment against the Company for the Company Termination Fee, then the Company shall pay to Parent the Company Termination Fee, plus interest on the Company Termination Fee from the date of termination of this Agreement at a rate per annum equal to the prime rate as published in the Wall Street Journal, Eastern Edition, in effect on the date of termination of this Agreement, plus the amount of any reasonable fees, costs and expenses (including legal fees) incurred by Parent and its Affiliates in connection with any such Action.

(c)          Each party hereto acknowledges and agrees that the Company Termination Fee, if paid, as and when required pursuant to this Section 7.03, shall not constitute a penalty but will be liquidated damages, in a reasonable amount that will compensate Parent in the
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circumstances in which it is payable for the efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the Merger, which amount would otherwise be impossible to calculate with precision.  Each of Parent and Merger Sub hereto acknowledges and agrees that, if the Company Termination Fee becomes payable pursuant to Section 7.03(a), the Company Termination Fee shall be the sole and exclusive remedy for damages against the Company in connection with this Agreement except in the event of the Company’s Willful Breach or intentional fraud.


ARTICLE VIII

Miscellaneous

SECTION 8.01.          No Survival of Representations, Warranties and Covenants.  Except for the representations and warranties in Sections 3.22, 4.09 and 4.10, none of the representations, warranties, covenants and agreements in this Agreement or in any document or instrument delivered pursuant to or in connection with this Agreement shall survive the Effective Time; provided that this Section 8.01 shall not limit any covenant or agreement 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.

SECTION 8.02.          Amendment or Supplement.  Subject to compliance with applicable Law, at any time prior to the Effective Time, this Agreement may be amended, modified or supplemented in any or all respects only by written agreement of the parties hereto; provided, however, that, following delivery of the Stockholder Consent, there shall be no amendment, modification or supplement to this Agreement which by applicable Law would require further approval by the Company’s stockholders without such approval having first been obtained.  The Company shall not amend, modify or supplement this Agreement in any material respect without the recommendation of the Special Committee.

SECTION 8.03.          Extension of Time, Waiver, Etc.  At any time prior to the Effective Time, Parent and the Company may, subject to applicable Law, (a) waive any inaccuracies in the representations and warranties of the other party, (b) extend the time for the performance of any of the obligations or acts of the other party or (c) subject to the requirements of applicable Law, waive compliance by the other party with any of the agreements contained herein or, except as otherwise provided herein, waive any of such party’s conditions (it being understood that Parent and Merger Sub shall be deemed a single party for purposes of the foregoing); provided, however, that following delivery of the Stockholder Consent, there shall be no waiver or extension which by applicable Law would require further approval by the Company’s stockholders without such approval having first been obtained.  Any agreement on the part of a party hereto to any such waiver or extension shall be valid only if set forth in an instrument in writing signed on behalf of such party.  Notwithstanding the foregoing, no failure or delay by the Company, Parent or Merger Sub in exercising any right hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right hereunder.
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SECTION 8.04.          Assignment.  Neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned, in whole or in part, by operation of Law or otherwise, by any of the parties hereto without the prior written consent of the other parties hereto.  No assignment by any party shall relieve such party of any of its obligations hereunder.  Subject to the immediately preceding two sentences, this Agreement shall be binding upon, inure to the benefit of and be enforceable by the parties hereto and their respective successors and permitted assigns.  Notwithstanding the foregoing, Parent or Merger Sub shall have the right to assign all or certain provisions of this Agreement, or any interest herein, and may delegate any duty or obligation hereunder, without the consent of the Company, to any Affiliate of Parent or Merger Sub so long as such assignment or delegation would not reasonably be expected to prevent, materially delay or materially impair the consummation of the Transactions, including the Merger; provided that no such assignment or delegation shall relieve Parent or Merger Sub of any of its obligations under this Agreement.  Any purported assignment not permitted under this Section 8.04 shall be null and void.

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

SECTION 8.06.          Entire Agreement; No Third-Party Beneficiaries.  This Agreement, together with the Exhibits attached hereto, the Company Disclosure Letter, the Parent Disclosure Letter and the Equity Commitment Letter, constitutes 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 shall not confer upon any Person other than the parties hereto any rights or remedies hereunder, except for the rights of (a) the Parent Related Parties set forth in Section 8.15, which are intended for the benefit of, and shall be enforceable by, the Parent Related Parties; (b) the Indemnified Parties set forth in Section 5.13, which are intended for the benefit of, and shall be enforceable by, the Indemnified Parties; and (c) from and after the Effective Time, former holders of Converted Shares or Director RSU Awards to receive Merger Consideration.

SECTION 8.07.          Governing Law; Jurisdiction.  (a) This Agreement and any claim, cause of action or Action (whether in contract, tort or otherwise) that may directly or indirectly be based upon, relate to or arise out of this Agreement or the Transactions, or the negotiation, execution or performance of this Agreement, shall be governed by, and construed and enforced in accordance with, the Laws of the State of Delaware, without regard to any choice or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of the Laws of any jurisdiction other than the State of Delaware.

(b)          Each of the parties hereto (i) expressly submits to the personal jurisdiction and venue of the Court of Chancery of the State of Delaware or, if such court would not have subject matter jurisdiction over any such claim, cause of action or Action, the federal courts of the United States located in the State of Delaware (the “Designated Courts”), in the event any claim, cause of action or Action involving the parties hereto (whether in contract, tort or otherwise) based upon, relating to or arising out of this Agreement or the Transactions, (ii) expressly waives any
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claim of lack of personal jurisdiction or improper venue and any claims that the Designated Courts are an inconvenient forum with respect to such claim, cause of action or Action and (iii) agrees that it shall not bring any claim, cause of action or Action against any other parties hereto based upon, relating to or arising out of this Agreement or the Transactions in any court other than the Designated Courts.  Each party hereto hereby irrevocably consents to the service of process with respect to the Designated Courts in any such claim, cause of action or Action by the mailing of copies thereof by registered or certified mail or by overnight courier service, postage prepaid, to its address set forth in Section 8.10.

SECTION 8.08.          Specific Enforcement.  The parties hereto agree that irreparable damage, for which monetary relief, 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 hereto fail to take any action required of them hereunder to consummate this Agreement and the Transactions, on the terms and subject to the conditions of this Agreement.  The parties acknowledge and agree that (a) the parties shall 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 (including, for the avoidance of doubt, the right of the parties to cause the Merger to be consummated on the terms and subject to the conditions set forth in this Agreement) in the Designated Courts without proof of damages or otherwise, this being in addition to any other remedy to which they are entitled under this Agreement and (b) the right of specific enforcement is an integral part of the Transactions and, without that right, neither the Company nor Parent or Merger Sub would have entered into this Agreement.  The parties hereto agree that, prior to the valid termination of this Agreement in accordance with Section 7.01, it will not assert that a remedy of specific enforcement is unenforceable, invalid, contrary to Law or inequitable for any reason, and not assert that a remedy of monetary damages would provide an adequate remedy or that the parties otherwise have an adequate remedy at law.  The parties hereto 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 shall not be required to provide any bond or other security in connection with any such order or injunction.

SECTION 8.09.          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 CLAIM, CAUSE OF ACTION OR ACTION DIRECTLY OR INDIRECTLY BASED UPON, RELATING TO OR ARISING OUT OF THIS AGREEMENT OR ANY OF THE AGREEMENTS DELIVERED IN CONNECTION HEREWITH OR THE TRANSACTIONS CONTEMPLATED HEREBY 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
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INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVER AND CERTIFICATIONS IN THIS SECTION 8.09.

SECTION 8.10.          Notices.  All notices, requests and other communications to any party hereunder shall be in writing and shall be deemed given if delivered personally, emailed (to the extent that no “bounce back”, “out of office” or similar message indicating non-delivery is received with respect thereto) or sent by overnight courier (providing proof of delivery) to the parties at the following addresses:

 
If to Parent or Merger Sub, to it at:
       
   
c/o BDT Capital Partners, LLC
   
401 North Michigan Avenue, Suite 3100
   
Chicago, Illinois 60611
   
Attention:
General Counsel
   
E-mail:
legal@bdtcap.com
       
 
with copies (which shall not constitute notice) to:
       
   
Cravath, Swaine & Moore LLP
   
Worldwide Plaza
   
825 Eighth Avenue
   
New York, NY 10019
   
U.S.A.
   
Attention:
David J. Perkins
   
Email:
dperkins@cravath.com
   
Attention:
Aaron M. Gruber
   
Email:
agruber@cravath.com
       
 
If to the Company, to:
       
   
Weber-Stephen Products LLC
   
1415 S Roselle Road
   
Palatine, Illinois 60067
   
Attention:
Bill J. Horton
   
Email:
bhorton@weberstephen.com
   
Attention:
Erik W. Chalut
   
Email:
echalut@weber.com
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with copies (which shall not constitute notice) to:
       
   
Davis Polk & Wardwell LLP
   
450 Lexington Avenue
   
New York, NY 10017
   
Attention:
Marc O. Williams
   
Email:
marc.williams@davispolk.com
       
   
and
       
   
Sullivan & Cromwell LLP
   
125 Broad Street
   
New York, NY 10004
   
Attention:
Melissa Sawyer
   
Email:
sawyerm@sullcrom.com
   
Attention:
Matthew B. Goodman
   
Email:
goodmanm@sullcrom.com
       

or such other address or email address as such party may hereafter specify by like notice to the other parties hereto.  All such notices, requests and other communications shall be deemed received on the date of actual receipt by the recipient thereof if received prior to 5:00 p.m. local time in the place of receipt and such day is a business day in the place of receipt.  Otherwise, any such notice, request or communication shall be deemed to have been received on the next succeeding business day in the place of receipt.

SECTION 8.11.          Severability.  If any term, condition or other provision of this Agreement is finally determined by a court of competent jurisdiction to be invalid, illegal or incapable of being enforced by any applicable Law or public policy, all other terms, provisions and conditions of this Agreement shall nevertheless remain in full force and effect so long as the economic and legal substance of the Transactions is not affected in any manner materially adverse to any party or such party waives its rights under this Section 8.11 with respect thereto; provided, however, that the parties intend that the remedies and limitations thereon set forth in Section 8.08 be construed as an integral provision of this Agreement and that such remedies and limitations shall not be severable in any manner that increases a Person’s liability or obligations.  Upon such determination that any term, condition or other provision is invalid, illegal or incapable of being enforced, the parties hereto shall 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 in an acceptable manner to the end that the Transactions are fulfilled to the extent possible.

SECTION 8.12.          Definitions.  (a)  As used in this Agreement, the following terms have the meanings ascribed thereto below:

“Action” means any legal or administrative proceeding, suit, investigation, arbitration or action.
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“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 first Person.  For this purpose, “control” (including, with its correlative meanings, “controlled by” and “under common control with”) shall mean 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.  For purposes of this Agreement, the Company and each of its Subsidiaries (including HoldCo and its Subsidiaries), on the one hand, and Parent, Merger Sub and each of their respective other Affiliates, on the other hand, shall be deemed to not be Affiliates of each other.

“Anti-Bribery Laws” means the U.S. Foreign Corrupt Practices Act of 1977, the U.K. Bribery Act of 2010 and any other applicable Law relating to anti-bribery or anti-corruption of any jurisdiction in which the Company or any of its Subsidiaries conducts business or owns assets.

“Antitrust Laws” means all applicable antitrust and competition 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.

“business day” means a day except a Saturday, Sunday or other day on which the SEC, the Secretary of State or banks in New York City are authorized or required by Law to be closed.

“Bridge Loan Facility” means, collectively, the unsecured revolving credit facility and delayed draw term loan facility (including the loans made thereunder) pursuant to the loan agreement, dated as of the date hereof, by and among Weber-Stephen Products LLC, a Delaware limited liability company, as borrower, and Parent, as designated lender and lender.

“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.

“Company Bylaws” means the Company’s Amended and Restated Bylaws, dated August 5, 2021.

“Company Charter” means the Company’s Amended and Restated Certificate of Incorporation, dated August 5, 2021.

“Company Equity Awards” means, collectively, each Company Option, Company RSU Award (including each Director RSU Award) and Company Profits Unit Award.

“Company ESPP” means the Company Employee Stock Purchase Plan.

“Company Financing Agreement” means any letter of intent, memorandum of understanding, agreement in principle, investment agreement, credit agreement or other similar preliminary or definitive agreement relating to any Financing Proposal.
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“Company Intellectual Property” means any and all Intellectual Property owned, or purported to be owned, by the Company or any of its Subsidiaries.

“Company Option” means any option to purchase Class A Shares outstanding under the Company Stock Plan or otherwise.

“Company Organizational Documents” means the Company Charter and the Company Bylaws.

“Company Plan” means any (a) “employee benefit plan” as that term is defined in Section 3(3) of ERISA (whether or not subject to ERISA) or (b) employment, independent contractor, consulting, pension, retirement, profit sharing, deferred compensation, stock option, change in control, retention, equity or equity-based compensation, stock purchase, employee stock ownership, severance pay, vacation, bonus, incentive, disability, medical, vision, dental, health, life insurance, fringe benefit or other compensation or benefit plan, program, agreement, arrangement, policy, trust, fund or contract, whether written or unwritten, in each case, sponsored, maintained or contributed to, or required to be sponsored, maintained or contributed to, by the Company or any of its Subsidiaries or any of their respective ERISA Affiliates or with respect to which the Company or any of its Subsidiaries may have any liability, whether actual or contingent.

“Company Profits Unit Award” means each limited liability interest designated as a “Profits Unit” in Holdco.

“Company Related Parties” means, collectively, the Company’s former, current or future officers, directors, stockholders or Affiliates or any of their respective successors or assigns or any of the former, current or future officers, directors, stockholders, managers, members, partners or Affiliates or successors or assigns of any of the foregoing.  Each of Parent, Merger Sub and each of their respective Affiliates shall be deemed to not be a Company Related Party.

“Company RSU Award” means any award of restricted stock units with respect to Class A Shares outstanding under the Company Stock Plan or otherwise.

“Company Stock Plan” means the Company Omnibus Incentive Plan.

“Consent” means any consent, waiver, approval, clearance, order, license, Permit, order, non-objection, non-action, expiration of waiting period or authorization.

“Contract” means any binding loan or credit agreement, debenture, note, bond, mortgage, indenture, deed of trust, lease, capital lease, sale-leaseback, sublease, license, contract or other agreement, instrument, obligation or arrangement.

“COVID-19” means SARS-CoV-2 or COVID-19, and any evolutions or mutations thereof or related or associated epidemics, pandemics, public health emergencies or disease outbreaks.

“COVID-19 Measures” means (a) any quarantine, “shelter in place,” “stay at home,” workforce reduction, social distancing, shut down, closure, sequester or other Law, Judgment or recommendation by any Governmental Authority, including the Centers for Disease
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Control and Prevention and the World Health Organization, or any applicable directive or guidance from any applicable industry group, including the Families First Coronavirus Response Act and the Coronavirus Aid, Relief, and Economic Security Act, or (b) any other reasonable action taken or omitted to be taken by the Company or any of its Subsidiaries (i) for the protection of the health and safety of its employees, customers, vendors, service providers and other business relationships, (ii) to preserve the assets utilized in connection with the business of the Company and its Subsidiaries or (iii) otherwise substantially consistent with actions taken by comparable companies in the affected industries and geographic regions before or after the date of this Agreement, in each case, in connection with or in response to COVID-19 or any other virus, infection or infectious or transmissible disease or global or regional health event or the events surrounding such virus, infection, disease or health event.

“Dissenting Shares” means Common Shares for which the holder thereof (a) did not consent to or vote in favor of the Merger and (b) is entitled to demand and properly demands appraisal pursuant to, and in a manner that complies in all respects with, Section 262 of the DGCL.

“Environmental Law” means any Law, Judgment, Contract or Permit issued, promulgated or entered into by or with any Governmental Authority relating to pollution or to the protection of the environment (including ambient air, surface water, groundwater, land surface or subsurface strata), natural resources, the climate, endangered or threatened species or human health and safety as it relates to hazardous or toxic material exposure.

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

“Financing Proposal” means any inquiry, proposal or offer (whether or not in writing) from any Person or group of Persons (other than Parent and its Affiliates) relating to, in a single transaction or series of related transactions, any direct or indirect action that the Company and its Subsidiaries are prohibited from taking, without the prior written consent of Parent (not to be unreasonable conditioned, withheld or delayed), pursuant to Section 5.01(b)(i) or 5.01(b)(xiv)(A); provided, however, that no debt financing activities requested by Parent pursuant to Section 5.12 shall be deemed a “Financing Proposal.”

“GAAP” means the generally accepted accounting practices in the United States.

“Government Official” means any officer or employee of a Governmental Authority, custom official, political party official, candidate for political office, official of any public international organization or employee or Affiliate of an enterprise that is owned, sponsored or controlled by any Governmental Authority.

“Governmental Authority” means any government, court, regulatory or administrative agency, arbitral body or self-regulated entity, tribunal, commission or authority or other legislative, executive or judicial governmental entity or any agency, department, division, commission or political subdivision thereof, whether local, state, federal or foreign.

“Hazardous Materials” means any petroleum or petroleum products, radioactive materials or wastes, polychlorinated biphenyls, per- or poly-fluoridated substances, heavy metals, hazardous or toxic substances and any other chemical, material, substance or waste that is regulated or for which liability may be imposed under any Environmental Law.
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“HoldCo” means Weber HoldCo, LLC.

“HoldCo Documents” means (a) the HoldCo LLC Agreement, (b) the Stockholders Agreement, (c) the Registration Rights Agreement and (d) the Tax Receivables Agreement, dated August 9, 2021, by and among HoldCo, the Company and the other equity holders of HoldCo set forth therein.

“HoldCo LLC Agreement” means the Amended and Restated Limited Liability Company Agreement of HoldCo, dated August 9, 2022, by and among HoldCo, the Company and the other members of HoldCo as set forth therein.

“Holdings” means BDT Capital Partners I-A Holdings, LLC.

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

“Intellectual Property” means all intellectual property and rights therein in any jurisdiction throughout the world, including such rights in and to: (a) patents (including all divisionals, continuations, continuations-in-part, renewals, reissues, reexaminations, supplemental examinations, inter partes reviews, post-grant oppositions, substitutions and extensions thereof), patent applications (including provisional and nonprovisional), patent disclosures and other patent rights, (b) trademarks, service marks, trade dress, trade names, business names, brand names, logos, slogans and other indicia of origin and source identifiers, including registrations and applications for registration therefor, together with all goodwill associated therewith, (c) copyrights that are registered or unregistered (including copyrights in Software), works of authorship (whether or not copyrightable), design or database rights (including in all website content and Software), including registrations and applications for registration therefor, (d) URLs, social media handles and Internet domain names (including any top level domain names and global top level domain names), including registrations and applications for registration therefor, (e) trade secrets (as defined in the Uniform Trade Secrets Act, state Law and the Defend Trade Secrets Act and under corresponding foreign statutory Law and common law) and nonpublic know-how, including inventions, discoveries, improvements, concepts, ideas, methods, techniques, processes, procedures, programs, codes, designs, prototypes, patterns, plans, compilations, program devices, formulas, schematics, drawings, technical data, specifications, research and development information, technology, databases, data collections, customer lists, business plans and other technical information, and other rights in confidential and proprietary business information and know-how, in each case, to the extent qualifying as a trade secret under applicable Law (collectively, “Trade Secrets”) and (f) Software.

“IT Assets” means the Software, systems, servers, computers, hardware, firmware, middleware, networks, data communications lines, routers, hubs, switches and other information technology equipment owned, leased or licensed by and, in each case, in the possession of or controlled by, the Company.

“Knowledge” means, (a) with respect to the Company, the knowledge of the individuals listed on Section 8.12 of the Company Disclosure Letter, and (b) with respect to Parent or Merger Sub, the knowledge of the individuals listed on Section 8.12 of the Parent Disclosure Letter.
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“Leased Real Property” means the leasehold or subleasehold interests and any other rights to license, use or occupy any land, buildings, structures, improvements, fixtures or other interests in real property held by the Company or any of its Subsidiaries under the Real Property Leases.

“Liens” means any pledges, liens, charges, mortgages, deeds of trust, conditions, covenants, restrictions, options, rights of first refusal or offer, conditional sales or other title retention agreements, adverse claims of ownership or use, easements, encroachments, third-party rights, leases, licenses, hypothecations, security interests or other encumbrances of any kind or nature whatsoever.

“Material Adverse Effect” means, with respect to the Company and its Subsidiaries, any fact, circumstance, effect, change, event or development that, individually or in the aggregate, with all other facts, circumstances, effects, changes, events or developments, (a) would prevent or materially delay, interfere with, hinder or impair the consummation by the Company of any of the Transactions in accordance with the terms of this Agreement or (b) has had or would reasonably be expected to have a material adverse effect on the business, properties, assets, liabilities, financial condition or results of operations of the Company and its Subsidiaries, taken as a whole; provided that, in the case of clause (b), no fact, circumstance, effect, change, event or development to the extent resulting from or arising out of any of the following shall be taken into account in determining whether a Material Adverse Effect has occurred or would reasonably be expected to occur:  (i) any change or condition affecting the industries in which the Company and its Subsidiaries operate, including any event, change, development, circumstance or fact in or with respect to prices for commodities, raw material inputs or end products; (ii) any economic, legislative or political condition, including any government shutdown or the results of any election, or any securities, credit, financial or other capital markets condition, in each case in the United States or in any non-U.S. jurisdiction, including changes in interest or exchange rates; (iii) any failure in and of itself by the Company or any of its Subsidiaries to meet any internal or public projection, budget, forecast, estimate or prediction in respect of revenues, earnings, cash flow or other financial or operating metrics for any period or any change to the liquidity profile of the Company or any of its Subsidiaries (it being understood that the underlying facts or occurrences giving rise to or contributing to such failure may be deemed to constitute, or 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 underlying facts or occurrences are not otherwise excluded from being taken into account by clauses (i) through (xii) of this definition); (iv) the announcement, execution or delivery of this Agreement or the pendency of the Merger, except that the exceptions contained in this clause (iv) shall not apply with respect to references to Material Adverse Effect in those portions of the representations and warranties contained in Sections 3.03, 3.04, 3.11(e) and 3.12(b) (and in Section 6.02(a) to the extent related to such representations and warranties) the purposes of which are to address the consequences resulting from the execution, delivery and performance by the Company of this Agreement or consummation of the Transactions; (v) the identity of Parent or any of its Affiliates or the failure of Parent to perform its obligations under the Bridge Loan Facility; (vi) any change in and of itself in the market price or trading volume of Class A Shares on the New York Stock Exchange, any change in the credit ratings or the ratings outlook for the Company or any of its Subsidiaries or any of their respective securities or any going concern disclosure in any reports, schedules, forms, statements and other documents filed by the Company with the SEC (it being understood that the underlying facts or occurrences giving rise to or
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contributing to such failure may be deemed to constitute, or 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 underlying facts or occurrences are not otherwise excluded from being taken into account by clauses (i) through (xii) of this definition); (vii) any change after the date of this Agreement in applicable Law or GAAP (or authoritative interpretation thereof); (viii) riots, protests, geopolitical conditions, the outbreak or escalation of hostilities, any act of war, cyberattack, sabotage or terrorism, or any escalation or worsening of any such act of war, cyberattack, sabotage or terrorism threatened or underway as of the date of this Agreement (except that any damage or destruction of  any property or assets of the Company and its Subsidiaries may be deemed to constitute, or be taken into account in determining whether there has been or would reasonably be expected to be, a Material Adverse Effect to the extent that losses resulting therefrom are not covered by insurance); (ix) the occurrence or worsening of any pandemic, epidemic, public health emergency or disease outbreak (including COVID-19); (x) any hurricane, ice event, fire, tornado, tsunami, flood, earthquake or other natural or manmade disaster or severe weather-related event, circumstance or development; (xi) any action of the Company or any of its Subsidiaries expressly required to be taken by the Company or its Subsidiaries pursuant to this Agreement (other than Section 5.01); or (xii) the departure or termination of any director, employee (including any officer) or independent contractors of the Company or its Subsidiaries; provided, however, that any fact, circumstance, effect, change, event or development set forth in clauses (i), (ii), (vii), (viii), (ix) or (x) above may be taken into account in determining whether a Material Adverse Effect has occurred or would reasonably be expected to occur to the extent such fact, circumstance, effect, change, event or development has a disproportionate adverse effect on the Company and its Subsidiaries, taken as a whole, as compared to other companies operating in the industries in which the Company and its Subsidiaries operate (in which case, only the incremental disproportionate impact may be taken into account in determining whether there has been or would reasonably be expected to be a Material Adverse Effect).

“Money Laundering Laws” means the Currency and Foreign Transactions Reporting Act of 1970 and the applicable money laundering Laws of all jurisdictions where the Company or any of its Subsidiaries conducts business.

“Owned Real Property” means the land, buildings, structures, improvements or other interests in real property owned in fee by the Company or any of its Subsidiaries.

“Parent Material Adverse Effect” means, with respect to Parent and Merger Sub, any fact, circumstance, effect, change, event or development that, individually or in the aggregate, with all other facts, circumstances, effects, changes, events or developments, would prevent or materially delay, interfere with, hinder or impair the consummation by Parent or Merger Sub of any of the Transactions in accordance with the terms of this Agreement.

“Parent Related Parties” means, collectively, Parent’s and Merger Sub’s respective former, current or future officers, directors, stockholders, managers, members, partners or Affiliates or any of their respective successors or assigns or any of the former, current or future officers, directors, shareholders, managers, members, partners or Affiliates or successors or assigns of any of the foregoing.
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“Payments” means anything of value, including cash, gifts, travel expenses, entertainment, offers of employment, provision of free services or business meals, and also includes event sponsorships, consultant contracts, fellowship support, job offers and charitable contributions made at the request of, or for the benefit of, an individual, such individual’s family or other relations.

“Permitted Liens” means (a) statutory Liens for Taxes, assessments or other charges by Governmental Authorities not yet due and payable, or the amount or validity of which is being contested in good faith and by appropriate proceedings and, in either case, for which adequate reserves are being maintained on the most recent Company Financial Statements in accordance with GAAP, (b) mechanics’, materialmen’s, carriers’, workmen’s, warehouseman’s, repairmen’s, landlords’ and similar Liens granted or which arise in the ordinary course of business and not yet due and payable, (c) Liens securing payment of the Company or its Subsidiaries with respect to outstanding indebtedness so long as there is no default under such indebtedness, (d) pledges or deposits by the Company or any of its Subsidiaries 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, (e) licenses (including nonexclusive licenses of Intellectual Property) granted to third parties in the ordinary course of business by the Company or any of its Subsidiaries, (f) securities transfer restrictions imposed by applicable Law and (g) such other Liens or imperfections that are not material in amount and do not materially detract from the value of or materially impair the existing or intended use of the asset or property affected by such Lien or imperfection.

“Person” means an individual, corporation, limited liability company, limited or general partnership, joint venture, association, trust, unincorporated organization or other entity, including a Governmental Authority or any group comprised of two or more of the foregoing.

“Personal Data” means (a) any information relating to an identified or identifiable natural person or that is reasonably capable of being related to the identity of a natural person or (b) any piece of information considered “personally identifiable information”, “personal information”, “personal data” or other comparable term under applicable Information Privacy Laws.

“Privacy Requirements” means (a) all applicable Laws relating to data privacy, data protection, security, collection, storage, use, transfer, disclosure, destruction, alteration or other processing of Personal Data (collectively, “Information Privacy Laws”), (b) all obligations under Contracts to which the Company or any of its Subsidiaries is party or is otherwise bound, (c) all publicly posted policies of the Company and its Subsidiaries, in the case of each of clauses (b) and (c), relating to data privacy, data protection, security, collection, storage, use, transfer, disclosure, destruction, alteration or other processing of Personal Data and (d) the Payment Card Industry Data Security Standard (PCI DSS) version 3.2.

“Public Shareholders” means all of the holders of the issued and outstanding Common Shares, excluding the Specified Holders and their respective Affiliates.  For purposes of
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this definition only, “Specified Holder” shall also include each immediate family member (as defined in Item 404 of Regulation S-K under the Securities Act) of any Specified Holder and any trust or other entity (other than the Company) in which any Specified Holder or any such immediate family member thereof holds (or in which more than one of such individuals collectively hold), beneficially or otherwise, a voting, proprietary, equity or other financial interest.

“Real Property Leases” means the leases, subleases, licenses or other agreements, including all amendments, extensions, renewals, guaranties or other agreements with respect thereto, under which the Company or any of its Subsidiaries uses or occupies or has the right to use or occupy any real property.

“Registration Rights Agreement” means the Registration Rights Agreement, dated August 9, 2021, by and among the Company, HoldCo and the other parties set forth therein.

“Release” means any actual or threatened release, spill, emission, leaking, dumping, injection, pouring, deposit, disposal, discharge, dispersal, leaching or migration into or through the environment or within any building, structure, facility or fixture.

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

“Required Stockholder Approval” means the adoption of this Agreement and the approval of the Transactions, including the Merger, contemplated hereby by the affirmative vote or written consent of the holders representing a majority of the aggregate voting power of (a) the outstanding Common Shares entitled to vote thereon, voting as a single class, (b) the outstanding Class A Shares entitled to vote thereon, voting as a separate class, (c) the outstanding Class B Shares entitled to vote thereon, voting as a separate class and (d) the outstanding Class B Shares entitled to vote thereon that are held by the stockholders party to the Stockholders Agreement.

“Sensitive Information” means (a) confidential and proprietary information of the Company and its Subsidiaries or of a third party in the possession or control of the Company or any of its Subsidiaries and (b) Personal Data.

“Sensitive Information Breach” means any (a) unauthorized or unlawful acquisition of, access to, loss of or misuse (by any means) of Sensitive Information, (b) unauthorized or unlawful processing, sale or rental of Sensitive Information, (c) ransomware, phishing or other cyberattack that results in a monetary loss or a business disruption to the applicable Person or (d) other act or omission that compromises the security, confidentiality, integrity or availability of Sensitive Information.

“Shareholder Loan Facility” means the unsecured term loan facility (including the initial loans and any incremental loans thereunder) pursuant to the loan agreement, dated November 8, 2022, by and among Weber-Stephen Products LLC, a Delaware limited liability company, as borrower, and BDT Capital Partners Fund I, L.P. and BDT Capital Partners Fund I-A, L.P., as lenders.
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“Software” means (a) all computer programs, applications, files, user interfaces, application programming interfaces, diagnostics, software development tools and kits, templates, menus, analytics and tracking tools, compilers, libraries, version control systems and operating systems, including all software implementations of algorithms, models and methodologies for any of the foregoing, whether in source code, object code or other form, and (b) all user documentation, including user manuals and training materials, relating to any of the foregoing.

“Specified Holders” means Byron D. Trott, Holdings, BDT WSP Holdings, LLC and BDT Family Holdings, LLC.

“Stockholders Agreement” means the Stockholders Agreement, dated August 9, 2021, by and among the Company, HoldCo and the other parties set forth therein.

“Subsidiary” means, with respect to any Person, any corporation, limited liability company, partnership, association, trust or other entity of which securities or other ownership interests representing more than 50% of the equity or more than 50% of the ordinary voting power (or, in the case of a partnership, more than 50% of the general partnership interests) are owned by such Person or one or more Subsidiaries of such Person or by such Person and one or more Subsidiaries of such Person.  For purposes of this Agreement, the Company and each of its Subsidiaries (including HoldCo and its Subsidiaries), shall be deemed to not be a Subsidiary of any of Parent, Merger Sub or any of their respective Affiliates.

“Tax” means all U.S. and non-U.S. federal, national, provincial, state or local taxes, charges, fees, levies or other similar assessments or liabilities, in each case, in the nature of taxes, imposed by a Governmental Authority, together with any interest, penalties, assessments or additions to tax imposed with respect to such amounts, whether or not disputed.

“Tax Returns” means all reports, returns, declarations, claims for refunds, statements or other information supplied or required to be supplied to a Governmental Authority relating to Taxes, including any amendment thereof or schedule or attachment thereto.

“Transactions” means, collectively, the transactions contemplated by this Agreement, including the Merger and the Equity Financing.

“Willful Breach” means a material breach of, or material failure to perform the covenants contained in, this Agreement that is a consequence of an act or failure to act by the breaching or non-performing party with actual knowledge that such party’s act or failure to act would constitute a material breach of, or material failure to perform the covenants contained in, this Agreement.

(b)          The following terms have the respective meanings set forth in the section referenced opposite such term:

Term
Section
Acceptable Confidentiality Agreement
Section 5.02(f)
Adverse Recommendation Change
Section 5.02(d)
Agreement
Preamble

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Term
Section
   
Balance Sheet Date
Section 3.05(c)
Bankruptcy and Equity Exception
Section 3.03(a)
Book-Entry Share
Section 2.01(c)(ii)
Capitalization Date
Section 3.02(a)
Centerview
Section 3.19
Certificate
Section 2.01(c)(ii)
Certificate of Merger
Section 1.02
Class A Share
Section 2.01(a)
Class B Share
Section 2.01(b)
Closing
Section 1.06
Closing Date
Section 1.06
Code
Section 2.02(g)
Common Shares
Section 2.01(b)
Company
Preamble
Company Acquisition Agreement
Section 5.02(d)
Company Board
Recitals
Company Board Recommendation
Recitals
Company Disclosure Letter
Article III
Company Financial Statements
Section 3.05(b)
Company Notice
Section 5.02(d)
Company SEC Documents
Section 3.05(a)
Company Securities
Section 3.02(b)
Company Termination Fee
Section 7.03(a)(ii)
Converted Shares
Section 2.01(c)(i)
Designated Courts
Section 8.07(b)
DGCL
Recitals
Director RSU Award
Section 2.03(b)
Economic Sanctions
Section 3.09(b)
Effective Time
Section 1.02
Environmental Permits
Section 3.13
Equity Commitment Letter
Section 4.05(a)
Equity Commitment Parties
Section 4.05(a)
Equity Financing
Section 4.05(a)
ERISA Affiliate
Section 3.11(c)
ESPP Purchase Date
Section 2.03(e)
Exchange Act
Section 3.04
Exchange Fund
Section 2.02(a)
Existing Purchase Period
Section 2.03(e)
Filed SEC Documents
Article III
Governmental Approvals
Section 3.04
Holdings Shares
Section 2.01(a)
Indemnified Parties
Section 5.13(a)
Information Statement
Section 5.04(a)

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Term
Section
Intervening Event
Section 5.02(g)
Judgment
Section 3.07
Laws
Section 3.08(a)
Material Contract
Section 3.17
Maximum Annual Premium
Section 5.13(b)
Merger
Recitals
Merger Consideration
Section 2.01(c)(i)
Merger Sub
Preamble
Merger Sub Board
Recitals
Merger Sub Share
Section 2.01(a)
Merger Sub Shareholder Approval
Recitals
Notice Period
Section 5.02(d)
Outside Date
Section 7.01(b)(i)
Parent
Preamble
Parent Disclosure Letter
Article IV
Parent Managing Member
Recitals
Paying Agent
Section 2.02(a)
Permits
Section 3.08(b)
Preferred Stock
Section 3.02(a)
Restraints
Section 6.01(b)
Sarbanes-Oxley Act
Section 3.05(d)
Schedule 13E-3
Section 5.04(a)
SEC
Section 3.04
Secretary of State
Section 1.02
Securities Act
Section 3.02(c)
Special Committee
Recitals
Special Committee Recommendation
Recitals
Stockholder Consent
Section 5.03(a)
Superior Proposal
Section 5.02(i)
Surviving Company
Section 1.01
Surviving Company Class A Share
Section 2.01(a)
Surviving Company Organizational Documents
Section 1.04
Takeover Law
Section 3.16
Takeover Proposal
Section 5.02(h)

SECTION 8.13.          Fees and Expenses.  Whether or not the Transactions are consummated, all fees and expenses incurred in connection with this Agreement and the Transactions, including the Merger, shall be paid by the party incurring or required to incur such fees or expenses, except (a) that the fees and expenses incurred in connection with filing any notifications or documentation under the HSR Act shall be borne by Parent or (b) as otherwise set forth in this Agreement.
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SECTION 8.14.          Interpretation.  (a)  When a reference is made in this Agreement to an Article, a Section or an Exhibit, such reference shall be to an Article of, a Section of or an Exhibit to this Agreement unless otherwise indicated.  The table of contents and headings contained in this Agreement are for reference purposes only and shall 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 shall be deemed to be followed by the words “without limitation”.  The words “hereof”, “herein”, “hereto” and “hereunder” and words of similar import when used in this Agreement shall 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 shall refer to the date of this Agreement.  The terms “or”, “any” and “either” are not exclusive.  The word “extent” in the phrase “to the extent” shall mean the degree to which a subject or other thing extends, and such phrase shall not mean simply “if”.  The word “will” shall be construed to have the same meaning and effect as the word “shall”.  The words “made available to Parent”, “delivered to Parent” and words of similar import refer to documents delivered in person or electronically to Parent, Merger Sub or their respective Representatives prior to the entry into this Agreement.  All terms defined in this Agreement shall have the meanings defined hereunder 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 terms.  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 includes all rules and regulations promulgated thereunder.  Unless otherwise specifically indicated, all references to “dollars” or “$” shall refer to the lawful money of the United States.  References to a Person are also to its permitted assigns and successors.

(b)          Whenever this Agreement contemplates any action or determination by the Company Board and such action or determination relates to the review, evaluation and negotiation of this Agreement or the Transactions or any other matter over which the Company Board has granted the Special Committee authority, the Company Board shall take such action or make such determination, in each case, only upon and in accordance with a recommendation to the Company Board from the Special Committee.

(c)          The parties hereto 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 shall be construed as jointly drafted by the parties hereto and no presumption or burden of proof shall arise favoring or disfavoring any party hereto by virtue of the authorship of any provision of this Agreement.

SECTION 8.15.          No Recourse.  This Agreement may only be enforced against, and any claims or causes of action that may be based upon, arise out of or relate to this Agreement or the Transactions, or the negotiation, execution or performance of this Agreement or the Transactions, may only be made against the entities that are expressly named as parties hereto, except for claims that the Company may assert in accordance with the Equity Commitment Letter.  No Parent Related Party (other than Parent and Merger Sub) shall have any liability for any obligations or liabilities of the parties to this Agreement or for any claim (whether in contract, in tort or otherwise) based upon, arising out of or relating to, or by reason of, this Agreement or the Transactions or in respect of any oral representations made or alleged to be made in connection
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herewith, except for claims that the Company may assert in accordance with the Equity Commitment Letter.  Without limiting the rights of the Company against Parent or Merger Sub hereunder, in no event shall the Company or any Company Related Party, and the Company agrees not to, and to cause the Company Related Parties not to, seek to enforce this Agreement against, make any claims for breach of this Agreement against or seek to recover monetary damages from any Parent Related Party (other than Parent and Merger Sub), except for claims that the Company may assert in accordance with the Equity Commitment Letter.

[Signature page follows]


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


  WEBER INC.
  
       

By:
/s/ Alan Matula
  
    Name:
Alan Matula
  
    Title:
Interim Chief Executive Officer
  
       





[Signature Page to Agreement and Plan of Merger]


  RIBEYE PARENT, LLC  
       

By:
/s/ Mary Ann Todd
  
    Name: Mary Ann Todd
  
    Title: Secretary & General Counsel  
       



  RIBEYE MERGER SUB, INC.  
       

By:
/s/ Mary Ann Todd
  
    Name: Mary Ann Todd
  
    Title: Secretary & General Counsel  
       





[Signature Page to Agreement and Plan of Merger]
Exhibit 99.2


Weber Inc. to be Taken Private by BDT Capital Partners for $8.05 per Share
 
Unanimously Recommended by Special Committee of the Weber Board of Directors
 
Agreed Price to Deliver 60% Premium and Certainty of Value for Minority Class A Shareholders
 
Approved $350 Million Unsecured Loan from BDT Capital Further Enhances Company’s Liquidity
 
 
PALATINE, Ill – December 12, 2022 – Weber Inc. (NYSE: WEBR) (“Weber” or the “Company”), the global leader in outdoor cooking innovation, technology and products, today announced that it has entered into a definitive merger agreement pursuant to which investment funds managed by BDT Capital Partners LLC (“BDT”) will purchase all of the outstanding Class A Shares that they do not already own, for $8.05 per share of Class A common stock of Weber (“Class A Share”), which implies a total enterprise value of $3.7 billion for Weber.
 
The purchase price represents a premium of 60% to the closing price of the Class A Shares on October 24, 2022, the last trading day before BDT submitted a non-binding acquisition proposal to the Board of Directors of the Company (the “Board”) and Weber disclosed the receipt of such proposal.
 
A special committee (the “Special Committee”) of the Board, comprised solely of independent directors, advised by its own independent financial and legal advisors, determined that the proposed transaction is in the best interests of the holders of Class A Shares other than BDT and unanimously recommended that the Board approve the transaction. Acting upon the recommendation of the Special Committee, Weber’s Board approved the transaction.
 
“We appreciate the Special Committee’s comprehensive evaluation of BDT’s offer and are confident that this transaction provides immediate and fair value to Weber minority shareholders,” said interim Weber CEO Alan Matula. “For over a decade, BDT has been a longstanding strategic partner for Weber. With their continued support, our global team will move forward in executing our long-term strategy with consumers and customers as our top priorities. And we’ll continue to sharpen our focus on doing what we do best: delivering the outdoor cooking industry’s most innovative, best-performing, highest-quality products and engaging millions worldwide who love to gather together and cook outside.”
 
“Weber is the #1 brand and global category leader in outdoor cooking, and it has demonstrated a relentless commitment to quality and innovation over its 70-year history. We look forward to continuing our partnership with the company and the founding Stephen family in its next chapter,” said Kelly Rainko, BDT Partner and Non-Executive Chair of the Board of Weber.
 
Upon completion of the transaction, Weber will become a privately held company majority owned by investment funds managed by BDT.
 
The transaction is expected to close in the first half of 2023, subject to customary closing conditions, including HSR clearance. The transaction has been approved by the written consent of the holders of the requisite number of shares of common stock of Weber, such that no additional stockholder approval is required.
 
In connection with the transaction, BDT managed investment funds will provide Weber with an additional unsecured loan facility in the aggregate principal amount of $350 million. Weber intends to utilize the loan for general corporate purposes including repaying existing indebtedness, continuing to make necessary investments in capital expenditures that support new product initiatives, and funding working capital for the upcoming 2023 outdoor cooking season. The previous loan agreement that Weber entered into with BDT managed investment funds on November 8, 2022, will remain outstanding.
 

ADVISORS
 
Centerview Partners LLC is serving as exclusive financial advisor to the Special Committee and Sullivan & Cromwell LLP is serving as the Special Committee’s outside legal advisor. Davis Polk & Wardwell LLP is acting as legal counsel to Weber. Cravath, Swaine & Moore LLP is acting as legal counsel to BDT.
 
ABOUT WEBER INC.
 
The Company, headquartered in Palatine, Ill., is the world’s leading barbecue brand. The Company’s founder George Stephen, Sr., established the outdoor cooking category when he invented the original kettle charcoal grill 70 years ago. The Company offers a comprehensive, innovative product portfolio, including charcoal, gas, pellet and electric grills, smokers, and accessories designed to help outdoor cooking enthusiasts discover what’s possible. The Company offers its barbecue grills and accessories, services, and experiences to a passionate community of millions across 78 countries.
 
ABOUT BDT CAPITAL PARTNERS
 
Established in 2009, BDT Capital Partners provides family- and founder-led businesses with long-term, differentiated capital through its investment funds. The firm has deployed more than $30 billion in capital, including co-investments by its global investor base. The firm’s affiliate, BDT & Company, is a merchant bank that works with family- and founder-led businesses to pursue their strategic and financial objectives, providing solutions-based advice as well as access to a world-class network of business owners and leaders. For more information, visit www.bdtcapital.com.
 
NO OFFER OR SOLICITATION
 
This communication is neither an offer to sell, nor a solicitation of an offer to buy any securities, the solicitation of any vote or approval in any jurisdiction pursuant to or in connection with the proposed transaction or otherwise, nor shall there be any sale, issuance or transfer of securities in any jurisdiction in contravention of applicable law. No offer of securities shall be made except by means of a prospectus meeting the requirements of Section 10 of the Securities Act of 1933, as amended, and otherwise in accordance with applicable law.
 
FORWARD-LOOKING STATEMENTS
 
Certain statements in this communication may constitute “forward-looking statements” within the meaning of the Private Securities Litigation Reform Act of 1995. These forward-looking statements, which are based on current expectations, estimates and projections about the industry and markets in which Weber operates and beliefs of and assumptions made by Weber management, involve uncertainties that could significantly affect the financial condition, results of operations, business plans and the future performance of Weber. Words such as “approximately,” “anticipate,” “assume,” “believe,” “contemplate,” “continue,” “could,” “estimate,” “expect,” “future,” “intend,” “may,” “plan,” “potential,” “predict,” “project,” “seek,” “should,” “target,” “will” and similar terms and phrases are intended to identify forward-looking statements but are not the exclusive means of identifying these statements. All of the forward-looking statements contained in this communication are subject to risks and uncertainties that may cause actual results to differ materially from those that Weber is expecting, including, among others:
 
●
risks associated with transactions generally, such as the inability to obtain, or delays in obtaining, any required regulatory approvals or other consents;
 


 ●
the failure to consummate or delay in consummating the transaction for other reasons;
 

 ●
the risk that a condition to closing of the transaction may not be satisfied;
 

 ●
the occurrence of any event, change or other circumstances that could give rise to the termination of the merger agreement;
 

 ●
the outcome of any legal proceedings that may be instituted following announcement of the merger;
 

 ●
failure to obtain the financing required to consummate the transaction;
 

 ●
failure to retain key management and employees of Weber;
 

 ●
unfavorable reaction to the transaction by customers, competitors, suppliers and employees;
 

 ●
unpredictability and severity of catastrophic events, including but not limited to acts of terrorism, war or hostilities or the COVID-19 pandemic, as well as Weber management’s response to any of the aforementioned factors; and
 

 ●
additional factors discussed in Weber’s filings with the SEC.
 
The forward-looking statements contained in this communication are only predictions based on Weber management’s current expectations and projections about future events. There are important factors that could cause Weber’s actual results, level of activity, performance or achievements to differ materially from the results, level of activity, performance or achievements expressed or implied by the forward-looking statements, including those factors discussed in the section titled “Risk Factors” in Weber’s Annual Report on Form 10-K, for the year ended September 30, 2021, and in Weber’s Quarterly Reports on Form 10-Q. Our future results could be affected by a variety of other factors, including: uncertainty of the magnitude, duration, geographic reach, impact on the global economy and current and potential travel restrictions of the COVID-19 outbreak; the current, and uncertain future, impact of the COVID-19 outbreak on our business, growth, reputation, prospects, financial condition, operating results (including components of our financial results), and cash flows and liquidity; risks relating to any unforeseen changes to or effects on liabilities, future capital expenditures, revenues, expenses, earnings, synergies, indebtedness, financial condition, losses and future prospects; the ability to realize the anticipated benefits and synergies from business acquisitions in the amounts and at the times expected; the impact of competitive conditions; the effectiveness of pricing, advertising, and promotional programs; the success of innovation, renovation and new product introductions; the recoverability of the carrying value of goodwill and other intangibles; the success of productivity improvements and business transitions; commodity and energy prices; transportation costs; labor costs; disruptions or inefficiencies in supply chain; the availability of and interest rates on short-term and long-term financing; the levels of spending on systems initiatives, properties, business opportunities, integration of acquired businesses, and other general and administrative costs; changes in consumer behavior and preferences; the effect of U.S. and foreign economic conditions on items such as interest rates, statutory tax rates, currency conversion and availability; legal and regulatory factors including the impact of any product recalls; and business disruption or other losses from war, pandemic, terrorist acts or political unrest.
 

Except as required by law, Weber undertakes no obligation to publicly update or revise any forward-looking statements or information, whether written or oral, that may be as a result of new information, future events or otherwise.
 
ADDITIONAL INFORMATION AND WHERE TO FIND IT
 
Weber will prepare and file an information statement on Schedule 14C for its stockholders with respect to the approval of the transaction described herein. When completed, the information statement will be mailed to Weber’s stockholders. In addition, certain participants in the transaction will prepare and file with the SEC a Schedule 13E-3 Transaction Statement, which will contain important information on Weber, BDT, the transaction and related matters, including the terms and conditions of the transaction. You may obtain copies of all documents filed by Weber with the SEC regarding this transaction, free of charge, at the SEC’s website, www.sec.gov or from Weber’s website at https://investors.weber.com/.
 
Stockholders of Weber are urged to read all relevant documents filed with the SEC, including the Schedule 14C and the Schedule 13E-3 Transaction Statement, as well as any amendments or supplements to these documents, carefully when they become available because they will contain important information about the transaction.
 

 
CONTACTS
 
For BDT Capital Partners:
Sara Evans / Matthew Glasser
T: (312) 529-6548 / (312) 385-2883
E: communications@bdtcap.com
 
For Weber’s Special Committee:
Steve Lipin / Felipe Ucrós
Gladstone Place Partners
(212) 230-5930
 

 
Exhibit 99.3

December 11, 2022

Ribeye Parent, LLC
c/o BDT Capital Partners, LLC
401 North Michigan Avenue, Suite 3100
Chicago, Illinois 60611

Ladies and Gentlemen:

Reference is made to the Agreement and Plan of Merger, dated as of December 11, 2022 (as it may be amended or otherwise modified in accordance with its terms from time to time, the “Merger Agreement”), by and among Weber Inc., a Delaware corporation (the “Company”), Ribeye Parent, LLC, a Delaware limited liability company (“Parent”), and Ribeye Merger Sub, Inc., a Delaware corporation and a wholly owned Subsidiary of Parent (“Merger Sub”), pursuant to which, subject to the terms and conditions set forth in the Merger Agreement, Merger Sub will merge with and into the Company, with the Company surviving such merger (the “Merger”).  Capitalized terms used herein but not defined herein shall have the meanings ascribed to them in the Merger Agreement.  This letter agreement (this “Letter”) sets forth the commitments of the funds listed under the heading “Fund” on Schedule 1 attached hereto (each, together with its respective successors and assigns, a “Fund” and collectively, the “Funds”), in each case subject to the terms and conditions set forth herein, to purchase, directly or indirectly, certain equity interests of Parent.  For purposes of this Letter, a Fund’s “Pro Rata Percentage” means the percentage set forth opposite such Fund’s name under the heading “Pro Rata Percentage” on Schedule 1 attached hereto.

1.          Subscription Commitments.  Subject to the terms and conditions set forth herein, each Fund hereby commits, severally and not jointly, that, at or prior to the Closing, it shall purchase, or shall cause the purchase of, directly or indirectly through one or more intermediate entities, equity securities of Parent with an aggregate purchase price not to exceed the product of (i) $886,000,000 (the “Aggregate Subscription Commitment”) multiplied by (ii) such Fund’s Pro Rata Percentage (each such commitment, a “Subscription Commitment”).  Notwithstanding anything to the contrary in this Letter, no Fund shall be obligated to contribute an amount in excess of its Subscription Commitment (with respect to each Fund, its “Subscription Commitment Cap”), and this Letter may not be enforced against a Fund without giving effect to its Subscription Commitment Cap.  The Aggregate Subscription Commitment, subject to each Fund’s Subscription Commitment Cap, will be contributed by Parent to Merger Sub to fund the payment of the aggregate Merger Consideration at the Closing and any other amounts required to be paid by Parent or Merger Sub in connection with the consummation of the Transactions pursuant to, and subject to the terms of, Sections 2.01(c) and 2.04(a) of the Merger Agreement (collectively, the “Closing Payments”).  Each Fund may allocate all or a portion of its investment required pursuant to this Section 1 to other Persons and its Subscription Commitment hereunder will be reduced by any amounts actually contributed to Parent by such Persons (and not returned) at or prior to the Closing for the purpose of funding the Closing Payments; provided that such allocation does not cause Parent or its Affiliates, including the Funds, to breach Section 5.01(c) of the Merger Agreement.  If, as of the Closing, the amount required to be paid pursuant to the Merger Agreement is less than the Aggregate Subscription Commitment, the Subscription Commitments applicable to the Funds
on Schedule 1 will be reduced, in the aggregate, by the amount of such difference, with such reduction among such Funds to be determined by Parent in its sole discretion.  The type of equity securities of Parent to be acquired by each Fund will be determined in the sole discretion of each Fund and Parent, subject to compliance in all respects with the Merger Agreement.

2.          Bridge Loan Commitment.  Subject to the terms and conditions set forth herein, each Fund hereby commits, severally and not jointly, that, at or prior to each date on which any Loan (as defined in the Bridge Loan Facility) under the Bridge Loan Facility is required to be made, it shall purchase, or shall cause the purchase of, directly or indirectly through one or more intermediate entities, equity securities of Parent with an aggregate purchase price equal to the product of (i) the principal amount of such Loan (less the amount of cash on hand of Parent actually applied to fund such Loan) multiplied by (ii) such Fund’s Pro Rata Percentage (each such commitment, a “Bridge Loan Commitment”).  Notwithstanding anything to the contrary in this Letter, no Fund shall be obligated to contribute an amount in excess of the product of (i) $350,000,000 multiplied by (ii) such Fund’s Pro Rata Percentage (with respect to each Fund, its “Bridge Loan Commitment Cap”), and this Letter may not be enforced against a Fund without giving effect to its Bridge Loan Commitment Cap.  Any amount contributed by each Fund in respect of its Bridge Loan Commitment (each amount so contributed, a “Bridge Loan Contribution”), subject to each Fund’s Bridge Loan Commitment Cap, will be used by Parent to make Loans required to be made pursuant to, and subject to the terms of, the Bridge Loan Facility.  Each Fund may allocate all or a portion of its Bridge Loan Contribution required pursuant to this Section 2 to other Persons and each of its Bridge Loan Commitments hereunder will be reduced by any amounts actually contributed to Parent by such Persons (and not returned) for the purpose of funding any Loan.  The type of equity securities of Parent to be acquired by each Fund with respect to each Bridge Loan Contribution will be determined in the sole discretion of each Fund and Parent, subject to compliance in all respects with the Bridge Loan Facility.

3.          Limited Guarantee. (a)  Subject to the terms and conditions set forth herein, each Fund, intending to be legally bound, hereby absolutely, irrevocably and unconditionally guarantees to the Company the due and punctual performance and discharge of Parent and Merger Sub’s payment obligations in respect of any monetary damages required to be paid to the Company in accordance with the Merger Agreement if, as and when those obligations become payable under the Merger Agreement subject to, and solely in accordance with, the terms and conditions of the Merger Agreement (the “Guaranteed Obligations”); provided that, notwithstanding anything to the contrary contained in this Section 3, (i) the liability of the Funds under this Section 3 is several and not joint and in no event shall any Fund’s aggregate liability under this Section 3 exceed, for each Fund, such Fund’s Pro Rata Percentage of $11,000,000 (such limitation on the aggregate liability of each Fund with respect to the Guaranteed Obligations as described in the immediately preceding clause being herein referred to as the “Guarantee Cap”) and (ii) this Section 3 may not be enforced against any Fund without giving effect to its Guarantee Cap (and to the provisions of Sections 7 and 8 of this Letter). This Section 3 may be enforced for the payment of money only. Notwithstanding anything that may be expressed or implied in this Letter or any document or instrument delivered in connection herewith, and for the avoidance of doubt, in no event shall any Fund have any obligation to make any payment or contribution under Section 1 of this Letter at any time after such Fund has made full payment under this Section 3 in accordance with the terms hereof.  BDT Capital Partners Fund 3, L.P. hereby acknowledges and agrees that it is the “ultimate parent entity” of Parent and Merger Sub for purposes of the HSR Act and will do all things
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necessary for Parent and Merger Sub to comply with its obligations under Section 5.05 of the Merger Agreement in all material respects.

(b)          Each Fund’s liability under this Section 3 is, subject to the terms and conditions of this Letter, absolute, unconditional, irrevocable and continuing irrespective of any modification, amendment or waiver of or any consent to departure from the Merger Agreement that may be agreed in writing to by Parent or Merger Sub.  Without limiting the foregoing, the Company shall not be obligated to file any claim relating to the Guaranteed Obligations in the event that Parent or Merger Sub becomes subject to a bankruptcy, reorganization or similar proceeding, and the failure of the Company to so file shall not affect any Fund’s obligations hereunder.  In the event that any payment hereunder is rescinded or must otherwise be, and is, returned to a Fund for any reason whatsoever, such Fund shall remain liable under this Section 3 as if such payment had not been made.  This Section 3 is a guarantee of payment and not of collection.

(c)          Each Fund agrees that the Company may, in its sole discretion, at any time and from time to time, without notice to or further consent of such Fund, extend the time of payment of any of the Guaranteed Obligations, and may also make any agreement with Parent or Merger Sub for the extension, renewal, payment, compromise, discharge or release thereof, in whole or in part, without in any way impairing or affecting such Fund’s obligations under this Section 3 or affecting the validity or enforceability of this Section 3. Subject to the other terms and conditions set forth in this Letter (including Sections 12 and 13 of this Letter), each Fund agrees that the obligations of such Fund under this Section 3 shall not be released or discharged, in whole or in part, or otherwise affected by: (i) the failure or delay on the part of the Company to assert any claim or demand or to enforce any right or remedy against Parent or Merger Sub or such Fund; (ii) any change in the time, place or manner of payment of any of the Guaranteed Obligations, or any waiver, compromise, consolidation or other amendment or modification of any of the terms or provisions of the Merger Agreement made in accordance with the terms thereof; (iii) any change in the legal existence, structure or ownership of Parent or Merger Sub; (iv) any insolvency, bankruptcy, reorganization or other similar proceeding affecting Parent or Merger Sub; or (v) the adequacy of any means the Company may have of obtaining payment of the Guaranteed Obligations.

(d)          To the fullest extent permitted by applicable Law, each Fund hereby expressly waives any and all rights or defenses arising by reason of any applicable Law which would otherwise require any election of remedies by the Company, except as expressly set forth in this Letter or in the Merger Agreement. Each Fund waives promptness, diligence, notice of the acceptance of this Section 3 and of the Guaranteed Obligations, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of any Guaranteed Obligations incurred and all other notices of any kind (other than notices to Parent or Merger Sub pursuant to the Merger Agreement), all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect or any right to require the marshalling of assets of Parent or Merger Sub. Each Fund acknowledges that it will receive substantial direct and indirect benefits from the Transactions and that the waivers set forth in this Section 3(d) are knowingly made in contemplation of such benefits.
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 (e)          Subject to Section 3(f) of this Letter, each Fund hereby unconditionally waives any rights that it may now have or hereafter acquire against Parent or Merger Sub that arise from the existence, payment, performance, or enforcement of such Fund’s obligations under or in respect of this Section 3, including any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of the Company against Parent or Merger Sub, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including the right to take or receive from Parent or Merger Sub, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, and such Fund shall not exercise any such rights unless and until all amounts payable by such Fund under this Section 3 (which shall be subject to the applicable Guarantee Cap) shall have been indefeasibly paid in full in immediately available funds.  If any amount shall be paid to a Fund in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds of all amounts payable by such Fund under this Section 3 (which shall be subject to the applicable Guarantee Cap), such amount shall be received and held in trust for the benefit of the Company, shall be segregated from other property and funds of such Fund and shall forthwith be promptly paid or delivered to the Company in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to all amounts payable by such Fund under this Section 3.

(f)          Notwithstanding anything to the contrary contained in this Letter or otherwise, the Company hereby agrees that each Fund shall have all defenses to the payment of its obligations under this Section 3 (which in any event shall be subject to the applicable Guarantee Cap) that would be available to Parent or Merger Sub under the Merger Agreement with respect to the Guaranteed Obligations.

4.          Conditions.  (a) Each Fund’s Subscription Commitment shall be subject to satisfaction of the following conditions:  (i) the full satisfaction or waiver of each of the conditions to Parent’s obligations to consummate the Closing set forth in Sections 6.01 and 6.02 of the Merger Agreement (in each case, other than those conditions that by their nature are to be satisfied at the Closing, but subject to the prior or substantially concurrent satisfaction or waiver of such conditions) and (ii) the substantially simultaneous consummation of the Closing in accordance with the terms and conditions of the Merger Agreement.

(b)          Each Fund’s obligation to make the applicable Bridge Loan Contribution necessary to fund any Loan required to be made by Parent pursuant to the Bridge Loan Facility shall be subject to satisfaction of the following conditions:  (i) the full satisfaction of each of the conditions to the effectiveness of the Bridge Loan Facility set forth in Section 4.01 of the Bridge Loan Facility and (ii) the full satisfaction or waiver of each of the conditions to Parent’s obligations to make such Loan under the Bridge Loan Facility as set forth in Section 4.02 of the Bridge Loan Facility.

5.          Parties in Interest; Third Party Beneficiaries.  The parties hereto hereby agree that their respective agreements and obligations set forth herein are solely for the benefit of the other parties hereto and their respective successors and permitted assigns, in accordance with and subject to the terms of this Letter, and this Letter is not intended to, and does not, confer upon any Person

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other than the parties hereto and their respective successors and permitted assigns any benefits, rights or remedies under or by reason of, or any rights to enforce or cause Parent to enforce, the obligations set forth herein; provided that (a) the Company is an express third party beneficiary of clause (b) of Section 6 of this Letter, the first sentence of Section 7 of this Letter, Section 13 of this Letter and Section 15(f) of this Letter, in each case subject to the terms and conditions thereof, and (b) any Non-Recourse Party (as defined below) may rely on and enforce the provisions of Section 8 of this Letter.

6.          Enforceability.  This Letter may only be enforced by (a) Parent and (b) the Company (i) to cause each Fund to fund its Subscription Commitment, solely in the event that the Company has the right to seek specific performance of Parent’s obligation to consummate the Transactions, pursuant to, and subject to, and solely in accordance with, the terms and conditions of Section 8.08 of the Merger Agreement and the rights, obligations and limitations set forth herein, (ii) to cause each Fund to fund each Bridge Loan Commitment (subject to such Fund’s Bridge Loan Commitment Cap), solely in the event that the Company or the Borrower (as defined in the Bridge Loan Facility) has the right to cause the Loan in respect to such Bridge Loan Commitment to be made under the Bridge Loan Facility and (iii) to cause each Fund to satisfy the Guaranteed Obligations (subject to such Fund’s Guarantee Cap). Neither Parent’s creditors nor any other Person (other than the Company to the extent provided herein) shall have any right to enforce this Letter or to cause Parent to enforce this Letter.

7.          No Modification; Entire Agreement.  This Letter may not be amended or otherwise modified without the prior written consent of Parent, each Fund and, solely in the case of any amendment or modification that is adverse to the Company, the Company.  Together with the Merger Agreement and the Bridge Loan Facility, this Letter constitutes the sole agreement, and supersedes all prior agreements, understandings and statements, written or oral, between a Fund or any of its Affiliates, on the one hand, and Parent or any of its Affiliates, on the other, with respect to the transactions contemplated hereby.

8.          No Recourse; Release.  The Company acknowledges the separate legal existence of Parent.  The Company acknowledges and agrees that the sole assets of Parent are cash in amounts necessary to fund Loans from time to time, any notes in respect of any outstanding Loans, cash from any interest payments in respect of any outstanding Loans and all of the issued and outstanding capital stock of Merger Sub and, except as contemplated by Sections 2 and 3 of this Letter, that no additional funds are expected to be contributed to Parent unless and until the Closing occurs under the Merger Agreement.  Notwithstanding anything that may be expressed or implied in this Letter, the Merger Agreement, the Bridge Loan Facility or in any agreement or instrument delivered or contemplated hereby or thereby (collectively, the “Transaction Documents”) or statement made or action taken to the extent in connection with or related to the transactions contemplated by any of the Transaction Documents or the negotiation, execution, performance or breach of any Transaction Document (the Transaction Documents and such agreements, instruments, statements and actions collectively, “Transaction-Related Matters”), and notwithstanding any equitable, common law or statutory right or claim that may be available to the Company or any Company Related Party, and notwithstanding the fact that the Funds are limited partnerships or similar entities, by its acceptance of the benefits of this Letter, the Company covenants, acknowledges and agrees, on behalf of itself and the Company Related Parties, that:
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(a)          no Non-Recourse Party has or shall have any obligations (whether of an equitable, contractual, tort, statutory or other nature) under, in connection with or in any manner related to any Transaction-Related Matter, other than (i) the obligations of Parent and Merger Sub under and pursuant to the Merger Agreement, (ii) the obligations of Parent under and pursuant to the Bridge Loan Facility, (iii) each Fund’s (several and not joint) obligation to specifically perform its obligation to make an equity contribution to Parent pursuant to Section 1 of this Letter in accordance with the terms of this Letter and if the conditions set forth in Section 4(a) of this Letter have been satisfied and the Company obtains specific performance of such obligation pursuant to, and subject to the limitations set forth in, Section 8.08 of the Merger Agreement and Section 6 of this Letter, (iv) each Fund’s (several and not joint) obligation to specifically perform its obligation to make an equity contribution to Parent pursuant to Section 2 of this Letter in accordance with the terms of this Letter and if the conditions set forth in Section 4(b) of this Letter have been satisfied (subject to the applicable Bridge Loan Commitment Cap of such Fund) and (v) each Fund’s (several and not joint) obligation to make a cash payment to the Company under and pursuant to the terms of Section 3 of this Letter (subject to the applicable Guarantee Cap of such Fund) and to otherwise comply with the terms of this Letter (the claims described in this Section 8(a) against the Persons specified herein or any of their respective permitted successors or assigns, collectively, the “Retained Claims”); and

(b)          no recourse (whether under an equitable, contractual, tort, statutory or other claim or theory) under or to the extent in connection with or related to any Transaction-Related Matter shall be sought or had against (and, without limiting the generality of the foregoing, no liability shall attach to) any Non-Recourse Party, whether through the Company, Parent or any other Person interested in the transactions contemplated by any Transaction Document or otherwise, whether by or through theories of equity, agency, control, instrumentality, alter ego, domination, sham, single business enterprise, piercing the veil, unfairness, undercapitalization, or any other attempt to avoid or disregard the entity form of any Non-Recourse Party, by or through a claim by or on behalf of the Company, any Company Related Parties, Parent or any other Person against any Non-Recourse Party, by the enforcement of any assessment, by any legal or equitable proceeding, by virtue of any applicable Law, or otherwise, except, in each case, for the Retained Claims (it being expressly agreed and acknowledged that no personal liability whatsoever shall attach to, be imposed on, or otherwise be incurred by any Non-Recourse Party, as such, for any obligation of any Fund under this Letter or the transactions contemplated hereby, under any documents or instruments delivered in connection herewith, in respect of any course of conduct, any course of dealing, or any oral representations, warranties, agreements or statements made or alleged to have been made in connection herewith or therewith, or for any claim (whether in tort, contract or otherwise) based on, in respect of, or by reason of, such obligations or their creation); provided that the foregoing shall not limit, abridge or otherwise modify any remedies available under the Retained Claims.

The Retained Claims shall be the sole and exclusive remedy (whether at law or in equity, whether sounding in contract, tort, statute or otherwise) of the Company or any Company Related Party and any Person purporting to claim by or through any of them or for the benefit of any of them against any or all of the Non-Recourse Parties, in respect of any claims, liabilities or
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obligations arising in any way under or to the extent in connection with or related to any Transaction-Related Matter.  To the fullest extent permitted by applicable Law, the Company, on behalf of itself and each Company Related Party, hereby releases, remises and forever discharges all claims (other than the Retained Claims) that the Company or any Company Related Party has had, now has or might in the future have against any Non-Recourse Party arising in any way under, in connection with or in any manner related to any Transaction-Related Matter, including in the event Parent or Merger Sub breaches its obligations under the Merger Agreement or Parent breaches its obligations under the Bridge Loan Facility, whether or not such breach is caused by a Fund’s breach of its obligations under this Letter. The Company hereby covenants and agrees that, other than with respect to the Retained Claims, it shall not, and it shall cause or instruct (as applicable) each Company Related Party not to, institute any proceeding or bring any claim in any way under, in connection with or in any manner related to any Transaction-Related Matter (whether at law or in equity, whether sounding in contract, tort, statute or otherwise) against any Non-Recourse Party.

As used herein, the term “Non-Recourse Party” means each of the Funds and any and all former, current or future direct or indirect holders of any equity, general or limited partnership or limited liability company interests or similar interests, controlling persons, incorporators, directors, officers, employees, agents, attorneys, members, managers, management companies, portfolio companies, general or limited partners, stockholders, representatives, assignees or Affiliates of any of the Funds (including Parent) and any and all former, current or future direct or indirect holders of any equity, general or limited partnership or limited liability company interests or similar interests, controlling persons, incorporators, directors, officers, employees, agents, attorneys, members, managers, management companies, portfolio companies, general or limited partners, stockholders, representatives, assignees or Affiliates of any of the foregoing, and any and all former, current or future direct or indirect heirs, executors, administrators, trustees, representatives, successors or assigns of any of the foregoing, and the providers or potential providers of any equity or debt financing in connection with the Transactions.

9.          Governing Law; Jurisdiction; Venue; Waiver of Jury Trial.

(a)          This Letter and any claim, cause of action or Action (whether in contract, tort or otherwise) that may directly or indirectly be based upon, relate to or arise out of this Letter, or the negotiation, execution or performance of this Letter, shall be governed by, and construed and enforced in accordance with, the Laws of the State of Delaware, without regard to any choice or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of the Laws of any jurisdiction other than the State of Delaware.

(b)          Each party hereto (i) expressly submits to the personal jurisdiction and venue of the Designated Courts, in the event any claim, cause of action or Action involving the parties hereto (whether in contract, tort or otherwise) based upon, relating to or arising out of this Letter, (ii) expressly waives any claim of lack of personal jurisdiction or improper venue and any claims that the Designated Courts are an inconvenient forum with respect to such claim, cause of action or Action and (iii) agrees that it shall not bring any claim, cause of action or Action against any other parties hereto based upon, relating to or

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arising out of this Letter in any court other than the Designated Courts.  Each party hereto hereby irrevocably consents to the service of process with respect to the Designated Courts in any such claim, cause of action or Action by the mailing of copies thereof by registered or certified mail or by overnight courier service, postage prepaid, to, with respect to the Funds and Parent, the address set forth for Parent or Merger Sub and, with respect to the Company, the address set forth for the Company, in each case, in Section 8.10 of the Merger Agreement.

(c)          EACH PARTY HERETO ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS LETTER 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 CLAIM, CAUSE OF ACTION OR ACTION DIRECTLY OR INDIRECTLY BASED UPON, RELATING TO OR ARISING OUT OF THIS LETTER OR THE TRANSACTIONS CONTEMPLATED HEREBY.  EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (I) 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, (II) IT UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF SUCH WAIVER, (III) IT MAKES SUCH WAIVER VOLUNTARILY AND (IV) IT HAS BEEN INDUCED TO ENTER INTO THIS LETTER BY, AMONG OTHER THINGS, THE MUTUAL WAIVER AND CERTIFICATIONS IN THIS SECTION 9(C).

10.          Counterparts.  This Letter may be executed in one or more counterparts (including by facsimile, PDF, electronic mail or electronic signature), each of which shall be deemed to be an original but all of which taken together shall constitute one and the same agreement, and shall become effective when one or more counterparts have been signed by each of the parties hereto and delivered to the other parties hereto.

11.          Confidentiality.  This Letter shall be treated as confidential and is being provided to Parent and the Company solely in connection with the Transactions.  This Letter may not be used, circulated, quoted or otherwise referred to in any document by Parent or the Company except with the prior written consent of each Fund in each instance; provided, that no such written consent is required for any disclosure of the existence or the terms of this Letter (a) to the extent required by applicable Law (provided, that, to the extent permitted by applicable Law, Parent or the Company, as applicable, will provide each Fund an opportunity to review such required disclosure in advance of such public disclosure being made), (b) to Parent’s or the Company’s Representatives who need to know of the existence or terms of this Letter solely for the purpose of consummating the Transactions, (c) in connection with the enforcement by the Company of its rights hereunder or under the Transaction Documents or (d) to the extent required by the applicable rules of any national securities exchange or required (or requested by the SEC) in connection with the Information Statement or the Schedule 13E-3 or any other report, schedule, form, statement or other document required to be filed or furnished with the SEC in connection with the Transactions.
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12.          Termination.  (a) The obligation of each Fund under or in connection with Section 1 of this Letter will terminate automatically and immediately upon the earliest to occur of (i) the Closing (including the funding of the Closing Payments), (ii) the valid termination of the Merger Agreement pursuant to Section 7.01 thereof, (iii) the Company or any Company Related Party, or any Person claiming by, through or for the benefit of any of the foregoing, asserting a claim for any payment from a Fund under Section 2 of this Letter, (iv) the Company or any Company Related Party, or any Person claiming by, through or for the benefit of any of the foregoing, asserting a claim or any theory of liability against any Fund or any Non-Recourse Party under or in connection with this Letter or the Merger Agreement or any other Transaction-Related Matters, other than the Company asserting any Retained Claim, and (v) the assertion of a claim by the Company or any Company Related Party, or any Person claiming by, through or for the benefit of any of the foregoing, that (A) any Fund’s liability under or in respect of Section 1 of this Letter, the Merger Agreement, any of the transactions contemplated hereby or thereby or any related matters is not limited to the amount of its Subscription Commitment and Subscription Commitment Cap or that the limitation of such liability to the amount of such Subscription Commitment or Subscription Commitment Cap is illegal, invalid or unenforceable, in whole or in part, (B) any Fund’s liability under or in respect of Section 2 of this Letter, the Bridge Loan Facility, any of the transactions contemplated hereby or thereby or any related matters is not limited to the amount of each of its Bridge Loan Commitments and Bridge Loan Commitment Cap or that the limitation of such liability to the amount of each of such Bridge Loan Commitments or the Bridge Loan Commitment Cap is illegal, invalid or unenforceable, in whole or in part, (C) the liability of any Fund under or in respect of Section 3 of this Letter is not limited to the Guaranteed Obligations and the amount of the Guarantee Cap or that the limitation of such liability to the Guaranteed Obligations or the amount of the Guarantee Cap is illegal, invalid or unenforceable, in whole or in part or (D) the provisions of this Section 12 or Section 8 of this Letter are illegal, invalid or unenforceable, in whole or in part.

(b)          The obligation of each Fund under or in connection with Section 2 of this Letter will terminate automatically and immediately upon the earliest to occur of (i) the Closing (including the funding of the Closing Payments), (ii) the valid termination of the Merger Agreement by Parent pursuant to Section 7.01(c)(i) thereof, (iii) an Event of Default (as defined in the Bridge Loan Facility), (iv) the Maturity Date (as defined in the Bridge Loan Facility), (v) the Company or any Company Related Party, or any Person claiming by, through or for the benefit of any of the foregoing, asserting a claim or any theory of liability against any Fund or any Non-Recourse Party under or in connection with this Letter or the Merger Agreement or any other Transaction-Related Matters, other than the Company asserting any Retained Claim, and (vi) the assertion of a claim by the Company or any Company Related Party, or any Person claiming by, through or for the benefit of any of the foregoing, that (A) any Fund’s liability under or in respect of Section 1 of this Letter, the Merger Agreement, any of the transactions contemplated hereby or thereby or any related matters is not limited to the amount of its Subscription Commitment and Subscription Commitment Cap or that the limitation of such liability to the amount of
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such Subscription Commitment or Subscription Commitment Cap is illegal, invalid or unenforceable, in whole or in part, (B) any Fund’s liability under or in respect of Section 2 of this Letter, the Bridge Loan Facility, any of the transactions contemplated hereby or thereby or any related matters is not limited to the amount of each of its Bridge Loan Commitments and Bridge Loan Commitment Cap or that the limitation of such liability to the amount of each of such Bridge Loan Commitments or the Bridge Loan Commitment Cap is illegal, invalid or unenforceable, in whole or in part, (C) the liability of any Fund under or in respect of Section 3 of this Letter is not limited to the Guaranteed Obligations and the amount of the Guarantee Cap or that the limitation of such liability to the Guaranteed Obligations or the amount of the Guarantee Cap is illegal, invalid or unenforceable, in whole or in part or (D) the provisions of this Section 12 or Section 8 of this Letter are illegal, invalid or unenforceable, in whole or in part.

(c)          The obligation of each Fund under or in connection with Section 3 of this Letter will terminate automatically and immediately upon the earliest to occur of (i) the Closing (including the funding of the Closing Payments), (ii) the payment of the Guaranteed Obligations by the Funds, (iii) the valid termination of the Merger Agreement pursuant to Section 7.01(a) thereof, (iv) 60 days following the valid termination of the Merger Agreement (other than pursuant to Section 7.01(a)), unless the Company or any Company Related Party, or any Person claiming by, through or for the benefit of any of the foregoing, shall have commenced litigation against any Fund under and pursuant to Section 3 of this Letter prior to the expiration of such 60-day period, in which case, the obligation of each Fund under or in connection with Section 3 of this Letter shall terminate upon the final, non-appealable resolution of such action and satisfaction by each Fund of any obligations finally determined or agreed to be owed by such Fund, consistent with the terms of Section 3 of this Letter, (v) the Company or any Company Related Party, or any Person claiming by, through or for the benefit of any of the foregoing, asserting a claim or any theory of liability against any Fund or any Non-Recourse Party under or in connection with this Letter or the Merger Agreement or any other Transaction-Related Matters, other than the Company asserting any Retained Claim, and (vi) the assertion of a claim by the Company or any Company Related Party, or any Person claiming by, through or for the benefit of any of the foregoing, that (A) any Fund’s liability under or in respect of Section 1 of this Letter, the Merger Agreement, any of the transactions contemplated hereby or thereby or any related matters is not limited to the amount of its Subscription Commitment and Subscription Commitment Cap or that the limitation of such liability to the amount of such Subscription Commitment or Subscription Commitment Cap is illegal, invalid or unenforceable, in whole or in part, (B) any Fund’s liability under or in respect of Section 2 of this Letter, the Bridge Loan Facility, any of the transactions contemplated hereby or thereby or any related matters is not limited to the amount of each of its Bridge Loan Commitments and Bridge Loan Commitment Cap or that the limitation of such liability to the amount of each of such Bridge Loan Commitments or the Bridge Loan Commitment Cap is illegal, invalid or unenforceable, in whole or in part, (C) the liability of any Fund under or in respect of Section 3 of this Letter is not limited to the Guaranteed Obligations and the amount of the Guarantee Cap or that the limitation of such liability to the Guaranteed Obligations or the amount of the Guarantee Cap is illegal, invalid or unenforceable, in whole or in part, or (D) the provisions of this Section 12 or Section 8 of
10
 
this Letter are illegal, invalid or unenforceable, in whole or in part.  If the obligation of each Fund under or in connection with Section 3 of this Letter terminates pursuant to clauses (v) or (vi) of the immediately preceding sentence then:  (i) the obligations of each Fund under or in connection with Section 3 of this Letter shall terminate ab initio and be null and void; (ii) if any Fund has previously made any payments under or in connection with Section 3 of this Letter, such Fund shall be entitled to recover and retain such payments; and (iii) no Fund or Non-Recourse Party shall have any liability whatsoever (whether at law or in equity, whether sounding in contract, tort, statute or otherwise) to the Company or any Company Related Party, or any Person claiming by, through or for the benefit of any of the foregoing, or any other Person in any way under or in connection with this Letter (including Sections 1 and 3 of this Letter), the Merger Agreement, any other agreement or instrument delivered in connection with this Letter, the Merger Agreement or the Transactions (other than Parent or Merger Sub under the Merger Agreement).

(d)          This Section 12 and Sections 5, 6, 7, 8, 9, 10, 11, 13, 14 and 16 of this Letter shall survive any termination pursuant to clauses (a) or (b) of this Section 12 of this Letter.

13.          No Assignment.  Neither this Letter nor any rights, benefits or obligations set forth herein shall be assigned, delegated or otherwise transferred by any of the parties hereto without the consent of the other parties hereto and the Company, except that (a) each Fund may assign, delegate or otherwise transfer its rights, benefits or obligations set forth herein, in whole or in part, to any Person (provided that no such assignment, delegation or transfer shall relieve such Fund of its obligations hereunder unless and to the extent such assignment, delegation or transfer is to an investment fund managed by an Affiliate that has and will maintain available funds or undrawn capital commitments in excess of the sum of the full Subscription Commitment and the Bridge Loan Commitment Cap assigned to such investment fund, in which case such assignment, delegation or transfer shall relieve such Fund of such obligations with respect to such Fund’s Subscription Commitment, Bridge Loan Commitments (which shall be subject to such Fund’s Bridge Loan Commitment Cap) and Guaranteed Obligations (which shall be subject to such Fund’s Guarantee Cap)) and (b) Parent may assign, delegate or otherwise transfer its rights, benefits or obligations set forth herein, in whole or in part, to any assignee of Parent’s rights, benefits or obligations under the Merger Agreement pursuant to an assignment thereof in accordance with the terms and conditions of the Merger Agreement.

14.          Severability.  Any term or provision of this Letter that is invalid or unenforceable in any jurisdiction will, as to that jurisdiction, be ineffective to the extent of such invalidity or unenforceability without rendering invalid or unenforceable the remaining terms and provisions of this Letter or affecting the validity or enforceability of any of the terms or provisions of this Letter in any other jurisdiction; provided that this Letter may not be enforced without giving effect to the limitation of the amount payable by each Fund under Sections 1, 2 and 3 hereof.  If any provision of this Letter is so broad as to be unenforceable, the provision will be interpreted to be only so broad as is enforceable.

15.          Representations and Warranties.  Each Fund hereby represents and warrants to Parent that:  (a) it has all requisite limited partnership or other power and authority to execute, deliver and perform this Letter and the execution, delivery and performance of this Letter have been duly authorized by all necessary action and do not contravene any provision of such Fund’s
11
 
partnership agreement or other organizational documents or any law, decree, order, judgment or contractual restriction binding on such Fund or its assets; (b) all Consents, approvals, authorizations, permits of, filings with and notifications to, any governmental authority necessary for the due execution, delivery and performance of this Letter by such Fund have been obtained or made and all conditions thereof have been duly complied with, and no other action by, and no notice to or filing with, any Governmental Authority is required in connection with the execution, delivery or performance of this Letter; (c) assuming due authorization, execution and delivery of this Letter by Parent, this Letter constitutes a legal, valid and binding obligation of such Fund enforceable against such Fund in accordance with its terms, subject to:  (i) the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws affecting creditors’ rights generally, and (ii) general equitable principles (whether considered in a proceeding in equity or at law); (d) the Subscription Commitment of such Fund is less than the maximum amount that it is permitted to invest in any one portfolio investment pursuant to the terms of its constituent documents or otherwise; (e) it has uncalled capital commitments or otherwise has available funds in excess of the sum of the Subscription Commitment of such Fund hereunder plus the Bridge Loan Commitment Cap of such Fund hereunder; and (f) such Fund has the financial capacity to pay and perform its obligations under Section 3 of this Letter, and all funds necessary for such Fund to fulfill its obligations under Section 3 of this Letter shall be available to such Fund for so long as Section 3 of this Letter shall remain in effect in accordance with Section 12 of this Letter.

16.          Construction.  The descriptive headings herein are inserted for convenience of reference only and are not intended to be part of or to affect the meaning or interpretation of this Letter.  The following provisions shall be applied wherever appropriate herein:  (a) “herein,” “hereby,” “hereunder,” “hereof” and other equivalent words shall refer to this Letter as an entirety and not solely to the particular portion of this Letter in which any such word is used; (b) all definitions set forth herein shall be deemed applicable whether the words defined are used herein in the singular or the plural; (c) wherever used herein, any pronoun or pronouns shall be deemed to include both the singular and plural and to cover all genders; and (d) the word “including” or any variation thereof shall mean “including, without limitation”.



[Signature pages follow]

12


 
Sincerely,
  
       
 
BDT CAPITAL PARTNERS FUND 3 (DEL) L.P.
  
       
  By:
BDTCP GP 3-A (DEL), LLC
  
  Its:
General Partner
 
       
  By:
BDTCP GP 3-A, L.P.
  
  Its:
Sole Member
 
       
  By:
BDTCP GP 3, Co.
  
  Its:
General Partner
 
       
       
 
By:
 /s/ Mary Ann Todd
  
 
Name:
 Mary Ann Todd
  
 
Title:
Secretary & General Counsel
  
       
       
 
BDT CAPITAL PARTNERS FUND 3 (LUX) SCSp
  
       
  By:
BDTCP GP 3-A (Lux) S.à r.l.
  
  Its:
 General Partner
 
       
       
 
By:
/s/ Cindy Z. Michel
  
 
Name:
Cindy Z. Michel
  
 
Title:
 Class A Manager
  
       
       
 
BDT CAPITAL PARTNERS FUND 3 (TE), L.P.
  
       
  By:
BDTCP GP 3-A, L.P.
  
  Its:
General Partner
  
       
  By:
BDTCP GP 3, Co.
  
  Its:
General Partner
 
       
       
 
By:
 /s/ Mary Ann Todd
  
 
Name:
 Mary Ann Todd
  
 
Title:
 Secretary & General Counsel
  
       
       
 
BDT CAPITAL PARTNERS FUND 3, L.P.
  
       
  By:
BDTCP GP 3, L.P.
  
  Its:
General Partner
  
     
  
  By:
BDTCP GP 3, Co.  
  Its:
General Partner
 
       
       
 
By:
 /s/ Mary Ann Todd
  
 
Name:
 Mary Ann Todd
 
 
Title:
 Secretary & General Counsel
  


[Signature Page to Equity Commitment Letter]

Agreed to and accepted:
     
RIBEYE PARENT, LLC
     
     
By:
 /s/ Mary Ann Todd
  
Name:
 Mary Ann Todd
  
Title:
 General Partner
  




[Signature Page to Equity Commitment Letter]