EXHIBIT 2.1

CONFORMED COPY

MEMBERSHIP INTEREST PURCHASE AGREEMENT

by and between

pixelle specialty solutions llc

AS BUYER,

Verso PAPER HOLDING LLC

AS SELLER,

and

Verso CORPORATION

AS SELLER PARENT

November 11, 2019

Table of Contents

Page

ANNEXES

Annex I – Accounting Methodology

Annex II – Pension Liability Assumptions

Annex III – Assets Related to Assumed Benefit Liabilities

EXHIBITS

Exhibit A – Form of Transition Services Agreement

Exhibit B – Supply Agreement Term Sheet (BHK Wet Lap and BHK Baled Pulp)

MEMBERSHIP INTEREST PURCHASE AGREEMENT

This MEMBERSHIP INTEREST PURCHASE AGREEMENT, dated as of November 11, 2019 (this “Agreement”), is entered into by and between (i) Pixelle Specialty Solutions LLC, a Delaware limited liability company (“Buyer”), (ii) Verso Corporation, a Delaware corporation (“Seller Parent”), and (iii) Verso Paper Holding LLC, a Delaware limited liability company and indirect Subsidiary of Seller Parent (“Seller”).

RECITALS

WHEREAS, Seller and its Affiliates engage in the manufacture of various types of pulp, paper and paper-based packaging materials at those certain manufacturing facilities located in Stevens Point, Wisconsin and Jay (Androscoggin), Maine (collectively, including ancillary processing sites and associated woodyards, as well as the production, marketing, development, distribution and sale of such packaging materials from or relating to such facilities, the “Business”);

WHEREAS, as of the date hereof, Seller Parent indirectly owns all of the issued and outstanding equity interests of Seller;

WHEREAS, Seller desires to sell, transfer and convey to Buyer, and Buyer wishes to purchase from Seller, the Business and, to effect such transfer and conveyance, Seller shall (a) effect the Restructuring (as defined below) so that the entire Business is owned and conducted by the Company (as defined below) (other than any Retained Assets and Retained Liabilities, each as defined below) and (b) sell and convey to Buyer all of the issued and outstanding equity interests (the “Interests”) of Verso Androscoggin LLC, a Delaware limited liability company (the “Company”);

WHEREAS, Seller and Buyer desire that Seller and certain of its Affiliates undertake and cause certain members of Seller Group to undertake a restructuring (the “Restructuring”) on or before the Closing Date pursuant to that certain Restructuring Agreement dated the date hereof (the “Restructuring Agreement”), among the Company, Seller Parent and certain other members of Seller Group to consolidate the Business into the Company; and

WHEREAS, simultaneously with the execution of this Agreement, (a) an Affiliate of Buyer has entered into that certain Equity Commitment Letter (as defined below) in favor of Seller, and (b) Buyer and certain Debt Financing Sources (as defined below) have entered into that that certain Debt Commitment Letter (as defined below).

NOW, THEREFORE, in consideration of the mutual covenants and promises hereinafter contained, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound hereby, agree as follows:

ARTICLE I
DEFINITIONS AND USAGE

Section 1.1            Definitions.

For purposes of this Agreement, the following terms and variations thereof have the meanings specified or referred to in this Section 1.1:

“2020 Cash Incentive Compensation” has the meaning set forth in Section 8.1(p).

“401(k) Plan” means the Verso Retirement Savings Plan for Non-Union Employees or the Verso Retirement Savings Plan for Bargained Employees, as applicable.

“401(k) Transfer” has the meaning set forth in Section 8.1(i).

“Accounting Firm” has the meaning set forth in Section 2.5(c)(iii).

“Accounting Firm’s Report” has the meaning set forth in Section 2.5(c)(iii).

“Accounting Methodology” means the accounting principles, methods and practices applied as set forth on Annex I.

“Additional Payment Amount” has the meaning set forth in Section 2.5(e).

“Adjustment Time” means 11:59 P.M. New York City time on the day immediately preceding the Closing Date.

“Adverse Recommendation Change” has the meaning set forth in Section 5.2(b).

“Affiliate” means with respect to any Person, any other Person who directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Person. As used in the definition of Affiliate, “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise, including the ability to elect the members of the board of directors or other governing body of such Person, and the terms “controlled” and “controlling” have meanings correlative thereto.

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

“Allocation Arbitrator” has the meaning set forth in Section 2.6(b).

“Alternate Financing” has the meaning set forth in Section 5.11(c).

“Alternative Acquisition Agreement” has the meaning set forth in Section 5.2(b).

“Androscoggin Mill” has the meaning set forth in the Restructuring Agreement.

“Anti-Corruption Laws” means all applicable laws dealing with bribery and corruption including without limitation the U.S. Foreign Corrupt Practices Act of 1977, as amended, any applicable law or regulation implementing the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, the Bribery Act 2010 of the United Kingdom or any other applicable anti-bribery or anti-corruption laws.

“Anti-Money Laundering Laws” means applicable statutes, laws, regulations, guidelines and orders issued, administered or enforced by any governmental or regulatory agency that prohibit money laundering, including the Bank Secrecy Act, the USA PATRIOT Act, as amended, the Money Laundering Control Act of 1986, any applicable anti-money laundering law or regulation enacted in the United States of America or otherwise applicable and any related or similar applicable statutes, rules, regulations or guidelines, issued, administered or enforced by any governmental agency.

“Antitrust Laws” means all antitrust, competition or trade regulation Laws of any Governmental Authority or Laws issued by any Governmental Authority that are otherwise designed or intended to prohibit, restrict or regulate actions or transactions having the purpose or effect of monopolization, restraint of trade or harm to competition, including the HSR Act.

“Appropriate Defined Benefit Plan” has the meaning set forth in Section 8.1(j)(ii).

“Asset Acquisition Statement” has the meaning set forth in Section 2.6(a).

“Assumed Benefit Liabilities” has the meaning set forth in Section 8.1(j)(i).

“Assumed Indebtedness” means all Funded Indebtedness of the Company and each of its Subsidiaries existing as of the Closing, after giving effect to the Restructuring.

“Assumed Unfunded Pension Amount” means $35,000,000.00

“Base Purchase Price” has the meaning set forth in Section 2.3(a).

“Board” means the board of directors of Seller Parent.

“Board Recommendation” has the meaning set forth in Section 3.2(b).

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

“Business Day” means any day other than a Saturday, Sunday or day on which banks are closed in New York, New York. If any period expires on a day which is not a Business Day or any event or condition is required by the terms of this Agreement to occur or be fulfilled on a day which is not a Business Day, such period shall expire or such event or condition shall occur or be fulfilled, as the case may be, on the next succeeding Business Day.

“Business Employees” means each employee of Seller or its Affiliates (i) whose primary work location is at one of those certain manufacturing facilities of the Business located in Stevens Point, Wisconsin or Jay (Androscoggin), Maine or (ii) who is set forth on Schedule 1.01(a). In the case of any such Business Employee whose employment with Seller and/or its Affiliates has terminated for any reason prior to the Closing Date, effective as of the date of termination of employment, such employee shall no longer be considered a Business Employee and, instead, shall be considered a Former Employee. For the avoidance of doubt, the Foreign Service Provider shall not be considered a Business Employee.

“Business Financial Information” has the meaning set forth in Section 3.4(a).

“Business Intellectual Property” has the meaning set forth in Section 3.17(b).

“Business IT Systems” has the meaning set forth in Section 3.17(i).

“Business Specific Suppliers” means any supplier of the Business, other than suppliers of commercial products or services that are of a general business nature not specific to the industries in which the Business operates (e.g., logistics providers, temporary labor sources, providers of office supplies, accounting services, etc.).

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

“Buyer Disclosure Schedules” means the buyer disclosure schedules, provided by Buyer to Seller on the date hereof.

“Buyer Expenses” has the meaning set forth in Section 7.3(d).

“Buyer Fundamental Representation” means each representation set forth in Section 4.2 and Section 4.6.

“Buyer Indemnifiable Claims” has the meaning set forth in Section 9.2(a).

“Buyer Indemnified Party” has the meaning set forth in Section 9.2(a).

“Buyer Termination Fee” has the meaning set forth in Section 7.3(a).

“Capacity Release Regulations” means those regulations set forth in 18 C.F.R. § 284.8 and related FERC requirements.

“Cash” means all cash and cash equivalents of the Company and its Subsidiaries, after giving effect to the Restructuring, as determined in accordance with the Accounting Methodology.

“Change in Control Payments” means, collectively (but without duplication), (a) any and all sale bonuses, transaction bonuses, change in control, retention or similar compensatory payments or benefits payable by Buyer or any of its Affiliates to any Person pursuant to any Company Plan or otherwise to any Business Employee, as a direct result of the approval or execution of this Agreement or the consummation of Contemplated Transaction, including any such “single-trigger” payments, any such payments or benefits the vesting of which accelerates as a result of consummation of the Contemplated Transaction and any such payments or benefits provided in connection with the voluntary resignation of a Business Employee’s employment for “good reason” (or term of similar meaning) in connection with the transactions contemplated by this Agreement, and (b) the employer-paid portion of any payroll Taxes payable in connection with the payments described in the foregoing clause (a); provided, however, that (i) Change in Control Payments shall not include payments that would not be payable but for an event or circumstance that occurs as a result of an action following the Closing by Buyer or one of its Affiliates or any payments or benefits pursuant to any arrangement entered into at the request or direction of Buyer, (ii) any amounts described in clause (a) that have not been paid as of the date that the value of the Change in Control Payments is calculated shall be valued based on the amount that would have been payable if such amounts had been paid at the Closing.

“Claim Notice” has the meaning set forth in Section 9.3(a).

“Claimed Amount” has the meaning set forth in Section 9.3(a).

“Closing” has the meaning set forth in Section 2.2.

“Closing Date” has the meaning set forth in Section 2.2.

“Closing Statement” has the meaning set forth in Section 2.5(b).

“COBRA” has the meaning set forth in Section 8.1(n).

“Code” means the Internal Revenue Code of 1986, as amended. All citations to the Code, or the Treasury Regulations promulgated thereunder, include all amendments thereto and any substitute or successor provisions.

“Collective Bargaining Agreement” means any collective bargaining agreement or other agreement with a union, works council or other agency or representative body certified or recognized for the purpose of bargaining collectively on behalf of Business Employees or Former Employees (whose functions primarily relate to the Business).

“Commonly Controlled Entity” means any Person or entity that, together with the Company or any of its Subsidiaries, is treated as a single employer under Section 4001(b) of ERISA or Section 414(b), (c), (m) or (o) of the Code or similar foreign applicable Law.

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

“Company Plan” means each Plan or portion thereof (i) for which assets or Liabilities will transfer to Buyer or its Affiliates pursuant to this Agreement or the Restructuring or by operation of Law or (ii) that is sponsored by the Company or any of its Subsidiaries.

“Company Real Property” has the meaning set forth in Section 3.8(b), and shall, as of the date of this Agreement, be deemed to refer to such real property prior to giving effect to the Restructuring, and shall, as of the Closing Date, be deemed to refer to such real property after giving effect to the Restructuring.

“Company-Sponsored Plans” has the meaning set forth in Section 8.1(b).

“Competing Proposal” has the meaning set forth in Section 5.2(f)(i).

“Compliant” means, with respect to the Required Information, that (a) the Required Information does not, taken as a whole, contain any untrue statement of a material fact regarding the Business, the Company and its Subsidiaries (after giving effect to the Restructuring, including, for the avoidance of doubt, VES) or omit to state any material fact regarding the Business, the Company and its Subsidiaries (after giving effect to the Restructuring, including, for the avoidance of doubt, VES) necessary in order to make the Required Information not misleading in light of the circumstances under which the statements contained in the Required Information are made, and (b) Seller Parent’s auditors have not withdrawn any audit opinion (or notified Seller Parent that such a withdrawal is under consideration) with respect to any financial statements included in the Required Information or any of Seller Parent’s financial statements from which the financial statements included in the Required Information are derived (it being understood that if a new unqualified audit opinion is issued with respect to such financial statements for the applicable periods by the applicable independent accountants or another independent public accounting firm of recognized national standing reasonably acceptable to Seller Parent (or Seller Parent’s auditors shall have notified Seller Parent in writing that withdrawal of such audit opinion is no longer under consideration), then the Required Information shall not be disqualified under this clause (b) on account of any such withdrawn audit report) and (c) Seller Parent has not determined to undertake a restatement of any financial statements included in the Required Information or any of Seller Parent’s financial statements from which the financial statements included in the Required Information are derived (it being understood that if such restatement is completed or Seller Parent has determined that no such restatement is required, then the Required Information shall not be disqualified under this clause (c) on account of any such prior determination to restate).

“Confidentiality Agreement” means that certain Confidentiality Agreement, dated as of June 26, 2019, by and between Pixelle Specialty Solutions LLC and Seller Parent.

“Consent” means any authorization, consent, waiver, approval, permit, exemption by, notice of, with or to any Person.

“Consolidated Group” means a group of entities that together file a consolidated, combined, unitary or similar Tax Return.

“Consolidated Return Taxes” means Taxes imposed under U.S. Treasury Regulation Section 1.1502-6 (or any similar provision of state, local, or foreign Law) as a result of being a member of a Consolidated Group the common parent of which is Seller Parent or any Affiliate of Seller Parent.

“Contemplated Transactions” has the meaning set forth in Section 2.1(a).

“Contract” means any contract, Lease, indenture, mortgage, instrument, commitment, license, sales or purchase order or other written arrangement or understanding.

“Controlled Group Liability” means any and all Liabilities (i) under Title IV of ERISA (including any Liability with respect to reportable events within the meaning of Section 4043 of ERISA), (ii) under Section 302 or 4068(a) of ERISA, (iii) under Section 430(k) or 4971 of the Code, (iv) for violation of the continuation requirements of Section 601 et seq. of ERISA and Section 4980B of the Code or the group health requirements of Section 701 et seq. of ERISA and Section 9801 et seq. of the Code, and (v) under applicable Laws similar to those described in the foregoing clauses (i) to (iv) in jurisdictions outside of the United States.

“Controlling Party” has the meaning set forth in Section 9.3(d)(ii).

“Copyrights” means all copyright rights in original works of authorship, and all registrations, renewals and applications therefor.

“Current Assets” means collectively, without duplication, the sum of the current assets of the Business, excluding Cash, as set forth in the line items under the heading “Current Assets” set forth on Schedule 1.1(a), as determined in accordance with the Accounting Methodology.

“Current Liabilities” means collectively, without duplication, the sum of the current liabilities of the Business, as set forth in the line items under the heading “Current Liabilities” set forth on Schedule 1.1(a), in each case, determined in accordance with the Accounting Methodology.

“Damages” has the meaning set forth in Section 9.2(a).

“Data Protection Law” means any Law applicable to Seller Group related to the collection, storage, use, disclosure, retention, or destruction of Personally Identifiable Information by or for the Business, including applicable federal, state, and local privacy, information security, and data breach notification Laws, as such Laws have been and may be amended or supplemented through the date of this Agreement.

“Debt Commitment Letter” has the meaning set forth in Section 4.5(a).

“Debt Financing” has the meaning set forth in Section 4.5(a).

“Debt Financing Provisions” has the meaning set forth in Section 10.5.

“Debt Financing Source Related Parties” means the Debt Financing Sources and the Affiliates of any Debt Financing Source and its and such Affiliates’ respective directors, officers, employees, advisors, agents, members, partners, equityholders and representatives and their respective successors and assigns.

“Debt Financing Sources” means the financial institutions and other parties (other than Buyer or any of its Affiliates) party to the Debt Commitment Letter or any joinder agreements thereto and each other Person (other than Buyer or any of its Affiliates) that has committed to provide or otherwise entered into any commitment letter, engagement letter, credit agreement or other agreement with Buyer or any of its Affiliates in connection with, or that is otherwise acting as an arranger, bookrunner, syndication agent, documentation agent or other agent, manager, co-manager, administrative or collateral agent or any other similar representative in respect of, all or any part of the Debt Financing.

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

“Disputed Items” has the meaning set forth in Section 2.5(c)(iii).

“Disputed Inventory Items” has the meaning set forth in Section 2.5(b).

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

“Due Date” has the meaning set forth in Section 8.6(d).

“Environmental Law” means any Law or Governmental Order that regulates or controls: (a) the protection of the environment and natural resources and the prevention of pollution, (b) the Release of toxic or hazardous materials or wastes, or (c) the protection of human health and safety to the extent related to exposure to toxic or hazardous materials or wastes, including the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. § 9601 et seq.; the Resource Conservation and Recovery Act, 42 U.S.C. § 6901 et seq.; the Toxic Substances Control Act, 15 U.S.C. § 2601 et seq.; the Clean Air Act, 42 U.S.C. § 7401 et seq.; the Clean Water Act, 33 U.S.C. § 1251 et seq.; the Federal Insecticide, Fungicide and Rodenticide Act, 7 U.S.C. § 136 et seq.; and the Emergency Planning and Community Right-to-Know Act, 42 U.S.C. § 11001 et seq.; and the regulations promulgated pursuant thereto; and all state and local counterparts, as such Laws have been and may be amended on or prior to the Closing Date.

“Environmental Permits” has the meaning set forth in Section 3.15(b).

“Environmental Proceedings” has the meaning set forth in Section 3.15(c).

“Equity Commitment Letter” has the meaning set forth in Section 4.5(a).

“Equity Financing” has the meaning set forth in Section 4.5(a).

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

“Estimated Assumed Indebtedness” has the meaning set forth in Section 2.3(b).

“Estimated Change in Control Payments” has the meaning set forth in Section 2.3(b).

“Estimated Closing Statement” has the meaning set forth in Section 2.5(a).

“Estimated Net Working Capital” has the meaning set forth in Section 2.3(b).

“Estimated Purchase Price” has the meaning set forth in Section 2.3(b).

“Exchange Act” means the Securities Exchange Act of 1934, as amended.

“Existing Guaranty” has the meaning set forth in Section 5.7(a).

“Fee Letter” has the meaning set forth in Section 4.5(a).

“FERC” means the Federal Energy Regulatory Commission or any successor agency.

“FERC Approval” means the issuance of a Final Order by FERC granting without material modification or condition all authorizations requested by Seller in an application for authorization of the Contemplated Transactions under Section 203 of the FPA.

“FERC Waiver” means the issuance of a Final Order by FERC granting any necessary waivers of FERC’s Capacity Release Regulations and interstate natural gas pipeline FERC tariff provisions to effectuate the Contemplated Transactions.

“Filings” has the meaning set forth in Section 3.3(b).

“Final Allocation” has the meaning set forth in Section 2.6(c).

“Final Assumed Indebtedness” has the meaning set forth in Section 2.5(c)(iii).

“Final Cash” has the meaning set forth in Section 2.5(c)(iii).

“Final Order” means action by the relevant Governmental Authority sufficient to satisfy the relevant condition prescribed by Law to the consummation of the Contemplated Transactions.

“Final Purchase Price” has the meaning set forth in Section 2.5(c)(iii).

“Final Working Capital” has the meaning set forth in Section 2.5(c)(iii).

“Financing” has the meaning set forth in Section 4.5(a).

“Financing Letters” has the meaning set forth in Section 4.5(a).

“Foreign Service Provider” has the meaning set forth in Section 8.1(a).

“Former Employees” means all employees previously employed by a member of Seller Group whose functions primarily related to the Business as of their last day of employment but who are no longer so employed on the Closing Date.

“FPA” means the Federal Power Act, as amended, and FERC’s implementing regulations thereunder.

“Fraud” means, with respect to any party, actual fraud (including the element of scienter) with respect to intentional misrepresentations of facts that another party relied upon in determining to enter into this Agreement, as defined under the Laws of the State of New York.

“FSA” has the meaning set forth in Section 8.1(k).

“FSA Participant” has the meaning set forth in Section 8.1(k).

“FSA Plan” has the meaning set forth in Section 8.1(k).

“FSA Transfer Date” has the meaning set forth in Section 8.1(k).

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

“Funded Indebtedness” means, as of any time, without duplication, the outstanding principal amount of, accrued and unpaid interest on, and other payment obligations (whether or not due and payable) arising under any Indebtedness of the Company or any of its Subsidiaries. Notwithstanding the foregoing, “Funded Indebtedness” shall not include (a) any obligations under operating leases or leases not otherwise required to be capitalized under GAAP, (b) any undrawn letters of credit, (c) obligations under any interest rate, currency or other hedging agreements (other than breakage costs payable upon termination thereof on the Closing Date), (d) any Existing Guarantees, (e) the Assumed Unfunded Pension Amount, and (f) any Funded Indebtedness owed by the Company or any of its Subsidiaries to the Company or any of its Subsidiaries.

“GAAP” means U.S. generally accepted accounting principles.

“GIPOP” means Gulf Island Pond Oxygenation Project, a Maine general partnership.

“Governing Documents” means, with respect to any Person, the certificate of incorporation, bylaws and similar governing documents (including any amendments or other modifications in respect of the foregoing not in violation of Section 5.1(b)(ii)) of such Person.

“Governmental Authority” means any federal, state, county, regional district, local or other government, or any court, governmental division or department, regulatory or administrative agency or commission or other governmental or quasi-governmental authority or instrumentality of any nature, domestic or foreign.

“Governmental Order” means any judgment, injunction, writ, order, ruling, award or decree by any Governmental Authority or arbitrator.

“Hazardous Materials” means any substance, material or waste regulated as, defined as, or included in the definition of “hazardous substances”, “hazardous materials”, “hazardous wastes”, “restricted hazardous waste”, “pollutant or contaminant”, “toxic waste”, “toxic substance” or words of similar import under any provision of Environmental Law, and including petroleum and petroleum products or by-products, radioactive materials, asbestos-containing material, asbestos, per- and polyfluoroalkyl substances and polychlorinated biphenyls.

“HRIS” has the meaning set forth in Section 8.1(b).

“HSR Act” means the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, and any rules and regulations promulgated thereunder.

“Inactive Business Employee” has the meaning set forth in Section 8.1(e).

“Indebtedness” of any Person means (a) all liabilities and obligations of such Person for borrowed money or evidenced by notes, bonds, debentures or similar instruments, (b) obligations in respect of the deferred purchase price of property or services to the extent that such amount would be accrued as a liability on a balance sheet prepared in accordance with GAAP, (c) obligations in respect of capitalized leases, (d) indebtedness of others secured by (or for which the holder of such indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien on property owned or acquired by such Person, whether or not the obligations secured thereby have been assumed, (e) all obligations of such Person as an account party in respect of letters of credit, bankers’ acceptances, surety bonds or similar instruments, (f) all obligations of such Person in respect of interest rate protection agreements, foreign currency exchange agreements or other interest or exchange rate hedging arrangements, (g) all obligations of such Person under conditional sale or other title retention agreements relating to property or assets purchased by such Person, (h) any liability of such Person with respect to any overdrawn amounts from any account held by such Person, (i) any Liability of such Person or any Subsidiary of such Person for deferred compensation or similar obligations with respect to any current or former officer, director, employee, or contractor of such Person or any of its Affiliates, (j) any Liability of such person or any Subsidiary of such Person for severance or other termination payments or benefits payable by such Person under a Plan or otherwise (other than any such amounts that are Change in Control Payments), (k) the employer-paid portion of any employment or payroll Taxes incurred by such Person or any of its Subsidiaries (other than any such amounts that are Change in Control Payments or Current Liabilities) in respect of foregoing clauses (i) and (j), (l) any premium, fees, expenses, penalties (including prepayment and early termination penalties) and other amounts (including Taxes) owing in respect of the foregoing clauses, and (m) any guarantee of the obligations of another Person with respect to any of the foregoing clauses (a)-(h) and (l).

“Indemnifiable Claims” has the meaning set forth in Section 9.2(c).

“Indemnified Party” has the meaning set forth in Section 9.2(c).

“Indemnifying Party” has the meaning set forth in Section 9.3(a).

“Intellectual Property” means all (a) Patents, (b) Trademarks, (c) Software, (d) Know-How and (e) Copyrights.

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

“Intervening Event” has the meaning set forth in Section 5.2(f)(iii).

“Inventory” means all inventory, work-in-process, finished goods, raw materials (including wood) classified as either short or long-term, wherever located and used or held for use by, or manufactured primarily in connection with the Business.

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

“Know-How” means proprietary and/or confidential trade secrets (as protectable under applicable law), technical information, business data and information, and manufacturing processes/methods (including recipes and formulae used to manufacture paper).

“Knowledge of Buyer” means, the knowledge of a particular matter, fact or thing of any of the individuals set forth on Schedule IV to the Buyer Disclosure Schedules (after reasonable inquiry of such person’s direct reports who would reasonably be expected to have relevant knowledge of such matter).

“Knowledge of Seller” means, the knowledge of a particular matter, fact or thing of any of the following individuals: Les Lederer, Mike Weinhold, Allen Campbell, Adam St. John, St. John Daugherty, Jeffrey Maule and Kenny Sawyer (after reasonable inquiry of such person’s direct reports who would reasonably be expected to have relevant knowledge of such matter).

“Law” means any applicable law, ordinance, rule, code, order, regulation, statute or treaty of or promulgated by any Governmental Authority.

“Leased Real Property” has the meaning set forth in Section 3.8(b), and shall, as of the date of this Agreement, be deemed to refer to such real property prior to giving effect to the Restructuring, and shall, as of the Closing Date, be deemed to refer to such real property after giving effect to the Restructuring.

“Leases” means any and all written leases, licenses, subleases, or sublicenses, together with all amendments and assignments thereto.

“Legal Proceeding” means any claim, action, dispute, demand, suit, litigation, arbitration proceeding (including any civil, criminal, administrative, investigative, informal or appellate proceeding), or hearing commenced, brought, conducted or heard by or before any arbitrator or arbitration panel or Governmental Authority.

“Liability” means any direct or indirect debt, obligation, liability, claim, loss, damage, deficiency, obligation or responsibility (including any interest, penalties, fees, costs and expenses), whether known or unknown, fixed or unfixed, matured or unmatured, accrued or unaccrued, vested or unvested, asserted or unasserted, actual or contingent, secured or unsecured, including those arising under any Law, Legal Proceeding or Governmental Order and those arising under any Contract.

“Lien” means any security interests, liens, pledges, options, rights of first refusal or offer, mortgages, charges, indentures, deeds of trust, security agreements, easements, encroachments, rights of way or similar encumbrances, restrictions or limitations on the use or transfer of property, collateral assignments, Uniform Commercial Code financing statements, preemptive rights, whether written or oral and whether or not relating in any way to credit or the borrowing of money (including any restriction on the voting of any security, any restriction on the transfer of any security or other asset, any restriction on the possession, exercise or transfer or any other attribute of ownership of any asset).

“Marketing Period” means the first period of 15 consecutive Business Days after the date of this Agreement (a) commencing on the first Business Day following the date on which Buyer shall have received from Seller all of the Required Information and, in the case of the financial information contemplated by clauses (a) and (b) of the definition of Required Information, which Required Information has been made publicly available by Seller Parent either via a filing on Form 8-K or other public filing with the U.S. Securities and Exchange Commission (it being agreed that upon the public filing of such financial information with the U.S. Securities and Exchange Commission, Buyer shall be deemed to have received such financial information), and (b) throughout which the Required Information is Compliant; provided that (i) neither November 27, 2019 nor November 29, 2019 shall be considered a Business Day for the purposes of this definition and (ii) unless the Marketing Period has been completed on or prior to December 18, 2019, the Marketing Period may not commence prior to January 6, 2020; provided further that the “Marketing Period” shall be deemed to have not commenced if Buyer has received a notice from the Debt Financing Sources in accordance with paragraph 9 of Exhibit C to the Debt Commitment Letter as in effect on the date hereof (or any analogous paragraph of any replacement or substituted Debt Commitment Letter or New Commitment Letter entered into in compliance with Section 5.11). Notwithstanding anything in this definition to the contrary, the Marketing Period will be deemed to have been completed on any earlier date, prior to the expiration of such period of 15 consecutive Business Days, on which the Debt Financing, in an amount at least equal to the amount thereof under the Debt Commitment Letter as in effect on the date hereof, is obtained by Buyer. If Seller shall in good faith reasonably believe that it has delivered the Required Information (and which Required Information is publicly available to the extent required under clause (a) above), it may deliver to Buyer a written notice to that effect (stating when it believes it completed such delivery), and then Seller will be deemed to have completed delivery of the Required Information necessary to commence the Marketing Period as of the date of delivery of such notice (or such later date specified in such notice), unless Buyer in good faith reasonably believes that Seller has not completed delivery of such Required Information and, on or prior to the third Business Day after delivery to Buyer of such notice by Seller, Buyer delivers a written notice to Seller to that effect (stating with reasonable specificity the extent to which the Required Information has not been delivered), provided that delivery of such written notice from Buyer will not prejudice Seller’s right to assert that the Required Information has, in fact, been delivered.

“Material Adverse Effect” means any circumstance, condition, event, development or change that, individually or in the aggregate, has had or would be reasonably expected to: (1) have a material adverse effect upon the condition (financial or otherwise), assets, Liabilities or operating results of the Business; provided that none of the following, either alone or taken together with other circumstances, conditions, events, developments or changes, will constitute, or be taken into account in determining whether there has been, a Material Adverse Effect: (a) changes after the date of this Agreement that generally affect the industries in which the Business operates, (b) natural disasters, acts of war (whether declared or undeclared), sabotage or terrorism (including cyber-attacks), or an escalation or worsening thereof or acts of God or other events, developments or changes resulting from or arising out of any hurricane, earthquake, tornado, drought, flood, fire or other weather-related condition or natural disaster, (c) changes after the date of this Agreement relating to, financial, banking, or securities markets (including (i) any disruption of any of the foregoing markets, (ii) any change in currency exchange rates, and (iii) any decline or rise in the price of any security, commodity, contract or index), (d) changes after the date of this Agreement in Law or GAAP, (e) the announcement of the execution of this Agreement to the extent that it relates to the specific identity of Buyer (as compared to an acquirer of the Business generally), (f) the taking of any action that is taken at the express written request of Buyer or any of its Affiliates, (g) any failure, in and of itself, to achieve any budgets, projections, forecasts, estimates, plans, predictions, performance metrics or operating statistics or the inputs into such items (provided that the facts or circumstances giving rise or contributing to such failure, to the extent not otherwise excluded by another clause of this definition, may be taken into account in determining whether there has been a Material Adverse Effect), or (h) changes or effects that arise solely from any seasonal fluctuations in the Business; provided, however, that with respect to clauses (a), (b), (c) or (d), such matters will be considered to the extent that they disproportionately affect the business, condition (financial or otherwise), assets, Liabilities or operating results of the Business, as compared to similarly situated businesses operating in the United States, or (2) in any material respect, have an adverse effect on the ability of Seller, Seller Parent or any other member of the Seller Group to perform its respective obligations under the Transaction Agreements, or that would, or would reasonably be expected to, prevent, materially impede or materially delay the consummation by Seller of the Contemplated Transactions.

“Material Contracts” has the meaning set forth in Section 3.9(a).

“Material Customers” has the meaning set forth in Section 3.24(a).

“Material Suppliers” has the meaning set forth in Section 3.24(b).

“Net Pension Liability” has the meaning set forth in Section 8.1(j)(iii).

“Net Working Capital” means (a) the amount of Current Assets as of the Adjustment Time, minus (b) the amount of Current Liabilities as of the Adjustment Time; it being understood and agreed that the terms “Current Assets” and “Current Liabilities” shall not include any amounts in respect of any categories of assets or liabilities, respectively, other than those identified under the headings “Current Assets” and “Current Liabilities” on Schedule 1.1(a).

“Neutral Actuary Firm” means Willis Towers Watson or such other internationally recognized benefits consulting firm to be mutually agreed by Seller Parent and Buyer; provided that the Neutral Actuary Firm shall not have been retained by any party with respect to Contemplated Transactions; provided further that the team at such Neutral Actuary Firm dedicated to the Contemplated Transactions shall be independent from any other transactions or engagements involving Seller Parent, Buyer or their respective Affiliates.

“New Commitment Letter” has the meaning set forth in Section 5.11(c).

“Non-Controlling Party” has the meaning set forth in Section 9.3(d)(ii).

“Non-Party Affiliates” has the meaning set forth in Section 10.18(a).

“Notice of Disagreement” has the meaning set forth in Section 2.5(c)(i).

“Objection Notice” has the meaning set forth in Section 9.3(b).

“Ordinary Course of Business” means the ordinary course of business consistent with past practice.

“Outside Date” has the meaning set forth in Section 7.1(b).

“Owned Real Property” has the meaning set forth in Section 3.8(a), and shall, as of the date of this Agreement, be deemed to refer to such real property prior to giving effect to the Restructuring, and shall, as of the Closing Date, be deemed to refer to such real property after giving effect to the Restructuring.

“Participant” means any Business Employee, Former Employee or other current or former service provider of the Business.

“Patents” means any (a) issued patents, patent applications (including in each case any continuation, continuation-in-part, division, renewal, patent term extension (including any supplemental protection certificate), reexamination or reissue thereof).

“Pension Liability Assumptions” means the methods and assumptions set forth in Annex II.

“Permits” means franchises, approvals, permits, authorizations, licenses, orders, registrations, certificates, variances, and other similar permits or rights obtained from any Governmental Authority.

“Permitted Liens” means, as applicable, any: (a) Liens for Taxes that are (i) not yet due and payable or (ii) being contested in good faith by appropriate proceedings and for which adequate reserves have been maintained in accordance with GAAP, (b) Liens of lessors, carriers, warehousemen, mechanics, materialmen and similar liens, including statutory liens and Liens imposed by Law, incurred in the Ordinary Course of Business (i) for amounts that are not yet due and payable or (ii) the validity or amount of which is being contested in good faith by appropriate proceedings and for which adequate reserves have been maintained in accordance with GAAP, (c) all pledges, deposits or other Liens securing the performance of bids, trade Contracts, statutory obligations or Leases incurred in the Ordinary Course of Business, (d) with respect to Company Real Property, all zoning, conservation restriction and other land use regulations imposed by any Governmental Authority having jurisdiction over such Company Real Property (but excluding violations thereof), (e) easements, covenants, conditions, restrictions, rights-of-way, encroachments or other minor imperfections of title and other similar encumbrances, whether or not of record with respect to the Company Real Property that do not or would not reasonably be expected to materially impair the present use or occupancy of the Company Real Property, (f) all matters shown on any title commitment, title policies or surveys made available to Buyer prior to the date hereof, (g) with respect to Owned Real Property, any matter that would be reflected on a current and accurate ALTA/NSPS survey of each such Owned Real Property; provided such matter does not or would not reasonably be expected to materially impair the present use or occupancy of the Owned Real Property, and (h) with respect to the Leased Real Property, (i) the terms, conditions, and provisions of the Leases, (ii) any Lien or other matter affecting title to the fee estate underlying such Leased Real Property, (iii) Liens in favor of lessor under Leases or encumbering the interests of such lessors (or other holders of superior interests), and (iv) any right, title or interest of a lessor, sublessor or licensor under any of the Leases.

“Permitted Other Terms” has the meaning set forth in Section 5.11(a).

“Person” means any individual, corporation (including any non-profit corporation), general partnership, limited partnership, limited liability partnership, joint venture, estate, trust, company (including any limited liability company or joint stock company), firm or other enterprise, association, organization, entity or Governmental Authority.

“Personally Identifiable Information” means information that includes a natural person’s name (first name or initial of first name together with last name, maiden name or alias) together with their: social security number, date of birth, driver’s license number, tax identification number, state-issued identification card number, bank or financial account and payment card information, medical information, health insurance information, home address, personal phone number, passport number, or biometric data that could be used to identify such natural person.

“Plan” means all written and unwritten employee benefit plans (within the meaning of Section 3(3) of ERISA, whether or not subject to ERISA), programs, Contracts, agreements and other arrangements that provide benefits or compensation, long or short term incentives, including plans, programs, agreements, arrangements or schemes for employment, consulting, pension, retirement, fringe benefits, profit sharing, savings, bonus, deferred or incentive compensation, change-in-control, retention, stock options, compensatory equity or equity-linked awards, retiree health, hospitalization, medical, life or disability insurance, sick leave, vacation and paid holiday pay, severance pay, or other compensation or benefits in any form (a) that are sponsored, maintained, contributed to or required to be maintained or contributed to by Seller or any of its Affiliates, in each case with respect to any Business Employee or Former Employee, or any beneficiary or dependent thereof, or (b) under which the Company or any of its Subsidiaries has any Liability or any obligation to contribute (whether actual or contingent).

“Plan Liability Transfer Effective Date” has the meaning set forth in Section 8.1(j)(i).

“Policies” has the meaning set forth in Section 3.19.

“Post-Closing Tax Period” means any taxable period (or portion thereof) beginning after the Closing Date.

“Pre-Closing Period” means the period commencing on the date hereof and ending on the earlier of the termination of this Agreement in accordance with its terms and the Closing.

“Pre-Closing Tax Period” means any taxable period (or portion thereof) ending on or before the Closing Date.

“Preparer” has the meaning set forth in Section 8.6(d).

“Proxy Statement” has the meaning set forth in Section 5.3(a).

“PUHCA” means the Public Utility Holding Company Act of 2005, and FERC’s implementing regulations thereunder.

“Pulp Supply Agreement” has the meaning set forth in Section 2.4(a)(iv).

“Purchase Price” has the meaning set forth in Section 2.3(a).

“Qualified Verso Plan Participants” has the meaning set forth in Section 8.1(j)(i).

“Qualified Verso Plan Transfer” has the meaning set forth in Section 8.1(j)(i).

“R&W Insurance Policy” means, together, each Buyer-Side Representations and Warranties Policy, dated on or about the date hereof, (i) by and between Buyer and AIG Specialty Insurance Company and (ii) by and between Buyer and Euclid Transaction, LLC, a true, correct and complete copy of which was delivered to Seller as of the date of this Agreement.

“Real Property Leases” has the meaning set forth in Section 3.8(b).

“Recommendation Change Notice” has the meaning set forth in Section 5.2(c).

“Registered Intellectual Property” has the meaning set forth in Section 3.17(a).

“Release” means any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping or disposing into, on, under or from, or migration or dispersal through, the indoor or outdoor environment.

“Representative” of a Person means any of the directors, officers, employees, advisors, agents, members, partners, stockholders, consultants, lawyers, accountants, investment bankers, financial advisors or other representatives of such Person.

“Required Information” means (a) the Business Financial Information, (b) the unaudited statement of profit and loss of the Business for each fiscal quarter of Seller Parent ended after June 30, 2019 and at least 45 days prior to the Closing Date, and (c) all other information about the Business, the Company, its Subsidiaries and VES that is customarily required to prepare a customary confidential information memorandum for the syndication of the Debt Financing contemplated by the Debt Commitment Letter and customarily provided by a borrower, it being understood that this clause (c) shall not include (i) any information customarily provided by an investment bank or lead arranger in the preparation of such confidential information memorandum and (ii) any financial statements (including, for the avoidance of doubt, any pro forma financial statements or projections) that are not included in clause (a) or (b) of this definition.

“Response” has the meaning set forth in Section 9.3(b).

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

“Restructuring Agreement” has the meaning set forth in the Recitals.

“Retained Assets” means “Retained Assets” as defined in the Restructuring Agreement.

“Retained Liabilities” means “Retained Business Liabilities” as defined in the Restructuring Agreement.

“Retained Marks” means any Trademarks whether registered or unregistered, owned, used or held for use by any member of Seller Group (other than the Company or its Subsidiaries, after giving effect to the Restructuring), including but not limited to any marks or names containing “Verso” or any similar reference to the designation “Verso” or any abbreviations thereof, and those Trademarks listed on Schedule 1.01(b), except those Trademarks expressly contemplated to be transferred to the Company and its Subsidiaries in the Restructuring Agreement.

“Reviewer” has the meaning set forth in Section 8.6(d).

“Sanctioned Territory” means a country or territory, which is itself the subject or target of economic or financial sanctions or trade embargoes administered or enforced by any Sanctions Authority or with which dealings are broadly restricted, prohibited, or sanctionable under any Sanctions Laws (including, as of the date of this Agreement, Cuba, Crimea, Iran, North Korea and Syria).

“Sanctions Authority” means the United Nations and competent governmental institutions and agencies of the U.S. government (including, without limitation, the Office of Foreign Assets Control of the U.S. Department of the Treasury and the U.S. Department of Commerce and the U.S. Department of State); the European Union (including without limitation, the EU Council and EU Commission, when acting in furtherance of the EU’s Common Foreign and Security Policy), the United Kingdom (including without limitation Her Majesty’s Treasury and the Department of Business, Innovation and Skills).

“Sanctions Laws” means any and all applicable economic or financial sanctions, trade embargoes, or other similar restrictive measures or laws or regulations imposed, administered or enforced by any Sanctions Authority.

“Sanctions Target” means, at any time, any person or entity: (a) with whom dealings are restricted or prohibited by, or are sanctionable under, any Sanctions Laws including, any person or entity listed on any Sanctions-related list of designated persons maintained by any Sanctions Authority, (b) that is located, organized or resident in a Sanctioned Territory, or (c) that is otherwise the subject or target of any economic or financial sanctions or trade embargoes administered or enforced by any Sanctions Authority, including by reason of a relationship of ownership or control with by (a) or (b).

“SEC” means the Securities and Exchange Commission.

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

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

“Seller Financing Documents” means (a) the Asset-Based Revolving Credit Agreement, dated as of July 15, 2016, among Verso Paper Finance Holdings LLC, Verso Paper Holdings LLC, each of the subsidiaries loan parties party thereto, the lenders party thereto, Wells Fargo Bank, National Association, as administrative agent, Barclays Bank PLC, as syndication agent, and Wells Fargo Bank, National Association and Barclays Bank PLC, as joint lead arrangers and joint bookrunners, as amended by the First Amendment dated as of December 5, 2016 and by the Second Amendment dated as of February 6, 2019, and as the same may be further amended, restated or otherwise modified from time to time, together with all agreements relating thereto, and (b) any agreements or instruments governing or evidencing (i) any other Indebtedness of Seller and its Affiliates (other than the Company and its Subsidiaries) or (ii) any Indebtedness of the type referred to in clause (a) (or, to the extent relating to clause (a), clause (d) or clause (m)) of the definition of such term of the Company or any of its Subsidiaries (other than, in the case of clause (ii), any such Indebtedness owed to the Company or any of its Subsidiaries).

“Seller Fundamental Representation” means each representation set forth in Section 3.1(a), Section 3.2, Section 3.4(c), Section 3.5, Section 3.6, Section 3.7(b), Section 3.8(a), Section 3.17(b), Section 3.20 and Section 3.23.

“Seller Group” means Seller, Seller Parent and its direct and indirect Subsidiaries, including, if prior to Closing, the Company and its Subsidiaries, and excluding, if after Closing, the Company and its Subsidiaries.

“Seller Indemnifiable Claims” has the meaning set forth in Section 9.2(b).

“Seller Indemnified Party” has the meaning set forth in Section 9.2(b).

“Seller Parent” has the meaning set forth in the Preamble.

“Seller-Sponsored Plans” has the meaning set forth in Section 8.1(b).

“Seller Termination Fee” has the meaning set forth in Section 7.3(b).

“Service Credit” has the meaning set forth in Section 8.1(g).

“Software” means any type of computer software or software code (including programs, applications, middleware, utilities, tools, drivers, firmware, microcode, scripts, instruction sets and macros) in any form (including source code, object code, machine readable or human readable form), and all related user guides and documentation.

“Stevens Point Mill” has the meaning set forth in the Restructuring Agreement.

“Stockholder Approval” has the meaning set forth in Section 3.2(b).

“Stockholders Meeting” has the meaning set forth in Section 3.2(b).

“Straddle Tax Period” means any taxable period that begins on or before and ends after the Closing Date.

“Subsidiary” means, with respect to any Person, any other Person with respect to which such first Person (alone or in combination with any of such first Person’s other Subsidiaries) owns (a) capital stock or other equity interests having the ordinary voting power to elect a majority of the board of directors or other governing body of such Person or (b) if no such governing body exists, a majority of the outstanding voting securities of such Person.

“Substitute Guaranty” has the meaning set forth in Section 5.7(a).

“Superior Proposal” has the meaning set forth in Section 5.2(f)(ii).

“Supply Agreement Term Sheet” has the meaning set forth in Section 2.4(a)(iv).

“Target Net Working Capital” means the amount set forth as the “Target Net Working Capital” on Schedule 1.1(b).

“Tax” or “Taxes” means all federal, state, local and foreign income, profits, franchise, gross receipts, environmental, customs duty, capital stock, severances, stamp, payroll, sales, employment, unemployment, disability, use, property, withholding, excise production, value added, occupancy, and other taxes or duties or assessments in the nature of a tax, together with all interest, penalties or additions to tax attributable to such taxes.

“Tax Contest” means any audit, hearing, proposed adjustment, arbitration, deficiency, assessment, suit, dispute, claim, proceeding or other Legal Proceeding commenced, filed or otherwise initiated or convened to investigate or resolve the existence or extent of a Liability for Taxes.

“Tax Return” means any report, return, statement or other written information (including elections, declarations, disclosures, schedules, estimates and information returns) filed or required to be supplied to a Taxing Authority in connection with any Taxes, including any schedule or attachment thereto and any amendment thereof.

“Taxing Authority” means any government or any subdivision, agency, commission or authority thereof, or any quasi-governmental or private body, having jurisdiction over the assessment, determination, collection or other imposition of Taxes.

“Trademarks” means any trademarks, service marks, logos, trade names, trade dress, domain names and all registrations and applications thereof, together with the goodwill pertaining to the foregoing.

“Transaction Agreements” means, collectively, this Agreement, the Financing Letters, the Transition Services Agreement, the Restructuring Agreement (and the Business Transfer Documents referred to therein) and the Pulp Supply Agreement.

“Transaction Taxes” means state and local sales, use, gross receipts, transfer, real estate transfer, documentary stamp, filing, recording and other similar Taxes arising from and with respect to the sale and purchase of the Interests and the Restructuring.

“Transfer Amount” has the meaning set forth in Section 8.1(j)(i).

“Transition Services Agreement” has the meaning set forth in Section 2.4(a)(ii).

“Verso Plan” means the Verso Corporation Employee Pension Plan, as amended and restated effective January 1, 2019, and as amended from time to time.

“Verso Retirement Savings Plan for Non-Union Employees” means the Verso Corporation Retirement Savings Plan for Non-Union Employees, as amended and restated effective July 1, 2016 and as amended from time to time.

“Verso Retirement Savings Plan for Bargained Employees” means the Verso Retirement Savings Plan for Union Employees, as amended and restated effective July 1, 2016 and as amended from time to time.

“VES” means Verso Energy Services LLC, a Delaware limited liability company.

“WARN Act” means the Worker Adjustment Retraining and Notification Act, as amended, and any similar applicable Law.

Section 1.2            Usage.

In this Agreement unless a clear contrary intention appears: (a) the singular number includes the plural number and vice versa, (b) reference to any Person includes such Person’s successors and assigns but, if applicable, only if such successors and assigns are not prohibited by this Agreement, and reference to a Person in a particular capacity excludes such Person in any other capacity or individually, (c) reference to any gender includes each other gender, (d) reference to any agreement, document or instrument means such agreement, document or instrument as amended or modified and in effect from time to time in accordance with the terms thereof, (e) “hereunder”, “hereof”, “hereto”, “herein” and words of similar import shall be deemed references to this Agreement as a whole, including the Schedules and Exhibits, and not to any particular Article, Section or other provision thereof, (f) “including” (and with correlative meaning “include” and “includes”) means including without limiting the generality of any description preceding such term, (g) references to documents, instruments or agreements shall be deemed to refer as well to all addenda, exhibits, schedules or amendments thereto, (h) the words “party” or “parties” shall refer to parties to this Agreement, (i) all references to provisions, Sections, Articles, Exhibits or Schedules are to provisions, Sections, Articles, Exhibits and Schedules of this Agreement, (j) the word “or” is disjunctive and not exclusive, (k) terms used herein that are not defined herein but are defined in GAAP have the meanings ascribed to them therein, (l) the words “dollar” or “$” means U.S. dollars, and (m) the word “day” means calendar day unless Business Day is expressly specified.

ARTICLE II
SALE AND PURCHASE OF INTERESTS

Section 2.1            Purchase and Sale of the Interests.

(a)               Subject to the terms and conditions of this Agreement, at the Closing, Seller shall sell, convey, assign, transfer and deliver to Buyer, and Buyer shall purchase, acquire and accept from Seller, the Interests, free and clear of all Liens, for the Purchase Price specified below in Section 2.3 (as adjusted pursuant to Section 2.5) (collectively with the other transactions contemplated by the Transaction Agreements, the “Contemplated Transactions”).

Section 2.2            Closing.

Subject to the terms and conditions of this Agreement, the closing (the “Closing”) of the Contemplated Transactions shall take place at 10:00 A.M. New York City time on the third Business Day immediately following the day on which the conditions to Closing set forth in Article VI (other than those conditions that by their terms are to be satisfied at the Closing) have been satisfied or waived in writing or on such other date as may be mutually agreed upon by the parties hereto; provided, however, that, if the Marketing Period has not been completed at the time of the satisfaction or such waiver of such conditions, the Closing shall occur instead on the date following the satisfaction or such waiver of such conditions that is the earlier of (a) any Business Day before or during the Marketing Period specified by Buyer to Seller on no less than three Business Days’ prior notice to Seller and (b) the third Business Day following the day of the completion of the Marketing Period (the day on which the Closing actually takes place, the “Closing Date”). The Closing shall take place at the offices of Cravath, Swaine & Moore LLP, 825 Eighth Avenue, New York, New York 10019 or at such other place as may be mutually agreed upon by the parties hereto.

Section 2.3            Purchase Price.

(a)               Purchase Price. Subject to the terms and conditions of this Agreement and adjustment pursuant to Section 2.5, the aggregate purchase price to be paid by Buyer, in accordance with Section 2.3(b), for the purchase of the Interests shall be $400,000,000 (the “Base Purchase Price”), adjusted as follows: minus (i) the Assumed Unfunded Pension Amount, plus (ii) Cash as of the Adjustment Time, plus (iii) the amount, if any, by which the Net Working Capital as of the Adjustment Time exceeds the Target Net Working Capital, minus (iv) the amount, if any, by which the Net Working Capital as of the Adjustment Time is less than the Target Net Working Capital, minus (v) the amount, if any, of Assumed Indebtedness as of Closing, minus (vi) the amount of Change in Control Payments (together, the “Purchase Price”).

(b)               Closing Payments. On the terms and subject to the conditions set forth in this Agreement, at the Closing Buyer shall pay, or cause to be paid, in cash by wire transfer of immediately available funds, to Seller an aggregate amount in cash (the “Estimated Purchase Price”) equal to (i) the Base Purchase Price, minus (ii) the Assumed Unfunded Pension Amount, plus (iii) Seller’s good faith estimate of the aggregate amount of Cash as of the Adjustment Time (the “Estimated Cash”), plus (iv) the amount, if any, by which Seller’s good faith estimate of Net Working Capital as of the Adjustment Time (the “Estimated Net Working Capital”) exceeds the Target Net Working Capital, minus (v) the amount, if any, by which the Estimated Net Working Capital is less than the Target Net Working Capital as of the Adjustment Time, minus (vi) Seller’s good faith estimate of the aggregate amount of Assumed Indebtedness as of Closing (the “Estimated Assumed Indebtedness”), minus (vii) Seller’s good faith estimate of the amount of the Change in Control Payments (the “Estimated Change in Control Payments”) which amount (as calculated in accordance with this paragraph) shall be paid at the Closing to such bank account of Seller in the United States as shall be designated in writing by Seller at least two Business Day prior to Closing.

(c)               Withholding Taxes. Notwithstanding anything in this Agreement to the contrary, Buyer and its Affiliates shall be entitled to deduct and withhold from any amounts otherwise payable pursuant to this Agreement such amounts as are required to be deducted or withheld under applicable Tax Law. In the event that Buyer determines that any deduction or withholding applies to the Purchase Price, it will notify Seller at least five Business Days prior to the Closing, the parties will use commercially reasonable efforts to minimize or reduce any such deduction or withholding, and the parties will work in good faith to resolve any disputes arising from such deduction or withholding. To the extent that amounts are so deducted or withheld and paid over to the applicable Governmental Authority, such amounts will be treated for all purposes of this Agreement as having been paid to the Person in respect of which such deduction or withholding was made.

Section 2.4            Deliveries and Proceedings at Closing.

Subject to the terms and conditions of this Agreement, at the Closing:

(a)               Deliveries by Seller to Buyer. Seller will deliver or cause to be delivered to Buyer:

(b)               Deliveries by Buyer to Seller. Buyer will deliver or cause to be delivered to Seller:

Section 2.5            Purchase Price Adjustment.

(a)               Estimated Closing Statement. Not less than two Business Days prior to the anticipated Closing Date, Seller shall deliver to Buyer a statement (the “Estimated Closing Statement”) setting forth Seller’s good faith calculation of the Estimated Purchase Price and reasonably detailed calculations demonstrating each component thereof, including Estimated Cash, Estimated Assumed Indebtedness, Estimated Net Working Capital and Estimated Change in Control Payments. The Estimated Closing Statement shall be prepared in good faith based upon the books and records of Seller and the Business in accordance with the definitions as provided in this Agreement and the Accounting Methodology. So long as prepared by Seller in good faith, the Estimated Closing Statement shall be binding on the parties hereto for purposes of this Section 2.5(a) and for purposes of determining the Estimated Purchase Price in Section 2.3(b).

(b)               Post-Closing Date Purchase Price Adjustments. As promptly as practicable, but no later than 90 days after the Closing Date, Buyer shall cause to be prepared in a manner consistent with the Accounting Methodology and delivered to Seller a statement (the “Closing Statement”) setting forth Buyer’s good faith calculation of the Purchase Price and reasonably detailed calculations demonstrating each component thereof, including the aggregate amount of Cash, Assumed Indebtedness, Net Working Capital and Change in Control Payments. A physical inventory shall be conducted by Seller no earlier than three days prior to the Closing Date for the purpose of preparing the Closing Statement, and each of Seller and Buyer and their respective Representatives shall have the right to observe the taking of such physical inventory. Upon completion of such physical count, the Representatives of each of Seller and Buyer shall agree upon and execute a statement setting forth either (i) the final physical count of the inventory in the event that the Representatives agree on such final physical count or (ii) the final physical count of the inventory of each of Seller and Buyer in the event that the Representatives were unable to resolve in good faith any disputes during the physical inventory count, noting such items of dispute (the “Disputed Inventory Items”) therein. In the event that there are any Disputed Inventory Items, such Disputed Inventory Items shall be resolved following the Closing pursuant to the dispute resolution procedures set forth in Section 2.5(c) and the final physical count agreed to by the parties or resolved pursuant to Section 2.5 shall be final and binding on the parties, including for purposes of determining Final Working Capital. Any costs or expenses incurred by Seller in connection with such taking of physical inventory shall be borne by Seller (other than the costs of Buyer’s Representatives’ participation in such physical inventory count). The Closing Statement shall be prepared based upon the books and records of the Business in accordance with the definitions as provided in this Agreement and in accordance with the Accounting Methodology. Until the Final Working Capital is determined in accordance with the terms hereof, Buyer shall, and shall cause its Affiliates to, provide Seller and its personnel and Representatives with reasonable access to the premises, personnel, Representatives, books and records of Buyer and the Business (subject, in the case of Buyer’s accountants, to the execution of customary work paper access letters if requested) and the ability to make copies of all information with respect thereto.

(c)               Dispute Resolution Procedures.

(d)               Buyer and Seller agree that the procedures set forth in this Section 2.5 for resolving disputes with respect to the Closing Statement shall be the sole and exclusive method for resolving any such disputes; provided that this provision shall not prohibit either party from instituting litigation to enforce any final determination of the Final Purchase Price pursuant to Section 2.5(c) and payment of the Additional Payment Amount pursuant to Section 2.5(e) in any court of competent jurisdiction in accordance with Section 10.10. The substance of any determination of the Accounting Firm shall not be subject to review or appeal, absent a showing of fraud or manifest error. It is the intent of the parties to have any final determination of the Final Purchase Price by the Accounting Firm proceed in an expeditious manner; however, any deadline or time period contained herein may be extended or modified by the written agreement of the parties and the parties agree that the failure of the Accounting Firm to strictly conform to any deadline or time period contained herein shall not be a basis for seeking to overturn any determination rendered by the Accounting Firm which otherwise conforms to the terms of this Section 2.5.

(e)               Final Payment. Within five Business Days after the determination of the final Closing Statement in accordance with this Section 2.5 (including by failure to timely deliver a Notice of Disagreement):

For purposes hereof, “Additional Payment Amount” means (A) the Final Purchase Price minus (B) the Estimated Purchase Price. For the avoidance of doubt, the Additional Payment Amount may be a negative number. Any payments made pursuant to this Section 2.5 shall be treated as an adjustment to the Purchase Price by the parties for all Tax purposes.

Section 2.6            Allocation of Consideration.

(a)               Within 60 days after the Closing Date, Seller will provide Buyer with a draft of IRS Form 8594, together with any required exhibits thereto and any supporting documentation (the “Asset Acquisition Statement”), with Seller’s proposed allocation of the Purchase Price and any Liabilities treated as assumed by Buyer among the assets of the Company and its Subsidiaries (after giving effect to the Restructuring) in accordance with Section 1060 of the Code. Within 45 days after receiving such Asset Acquisition Statement, Buyer will propose to Seller any changes to such Asset Acquisition Statement. Buyer and Seller will endeavor in good faith to resolve any differences with respect to the Asset Acquisition Statement within 30 days after Buyer’s receipt of written notice of objection from Seller.

(b)               If Seller and Buyer are unable to reach an agreement after the 30 day period described in paragraph (a), then any remaining disputed matters will be finally and conclusively determined by an independent accounting firm of recognized national standing (the “Allocation Arbitrator”) mutually selected by Buyer and Seller, which firm shall not be the regular auditor of the financial statements of Buyer, Seller or the Business. Promptly, but not later than 30 days after its acceptance of appointment hereunder, the Allocation Arbitrator will determine only those matters in dispute and will render a written report as to the disputed matters and the resulting allocation of the Purchase Price and any Liabilities treated as assumed by Buyer, which report shall be conclusive and binding upon the parties. The fees and expenses of the Allocation Arbitrator incurred in resolving the disputed matter shall be borne equally by Seller and Buyer.

(c)               The Asset Acquisition Statement, as finalized pursuant to the terms of Section 2.6(a) and Section 2.6(b), shall be the “Final Allocation”. Except as required pursuant to a final determination (under Section 1313(a) of the Code), Buyer and Seller will prepare all Tax Returns consistently with the Final Allocation, and neither Buyer nor Seller will take any position in any Tax Contest inconsistent with the Final Allocation. Buyer and Seller will cooperate in good faith to adjust the Final Allocation to take into account any items treated as an adjustment to the Purchase Price pursuant to this Agreement.

ARTICLE III
REPRESENTATIONS AND WARRANTIES OF SELLER

Except as set forth on the seller disclosure schedules, provided by Seller to Buyer on the date hereof (the “Disclosure Schedules”), Seller Parent and Seller each represent and warrant to Buyer as to itself, each other member of the Seller Group that is a party or subject to a Transaction Agreement, the Company, its Subsidiaries and the Business (and all references to the Company, its Subsidiaries and the Business in this Article III shall be deemed to mean after giving effect to the Restructuring, whether or not expressly stated) that the statements set forth in this Article III are true and correct as of the date of this Agreement and shall be true and correct on and as of the Closing Date, except for those representations and warranties which address matters only as of a particular date (which shall remain true and correct as of that date):

Section 3.1            Organization.

(a)               Each of Seller Parent and Seller is duly organized and validly existing under the laws of the jurisdiction in which it is organized and Seller has all requisite limited liability company power and authority to own the Interests. The Company and its Subsidiaries are each limited liability companies duly organized and validly existing and in good standing under the laws of such Person’s jurisdiction of formation and has all requisite limited liability company power and authority to own, lease and operate the Business as currently conducted and its properties presently owned.

(b)               Each of the Company and its Subsidiaries is duly licensed or qualified to do business and is in good standing in its jurisdiction of organization and in each jurisdiction in which the properties owned or leased by it or the operation of the Business makes such licensing or qualification necessary, except to the extent that the failure to be so duly licensed, qualified or in good standing would not be reasonably expected to have a Material Adverse Effect.

(c)               Seller has delivered, or caused to be delivered, as of the date of this Agreement, true and complete copies of the Governing Documents for each of the Company and its Subsidiaries.

Section 3.2            Power and Authority; Board Recommendation and Stockholder Approval.

(a)               Subject to the receipt of Stockholder Approval, each of Seller Parent, Seller and each other member of the Seller Group that is a party to a Transaction Agreement, has all requisite entity power and authority to enter into, deliver and perform its obligations under the Transaction Agreements to which it is a party and to carry out the Contemplated Transactions. Each of Seller Parent, Seller and any other member of Seller Group has duly authorized the execution and delivery of the Transaction Agreements to which it is a party and the consummation of the Contemplated Transactions. This Agreement has been duly executed and delivered by each of Seller Parent and Seller and (assuming the valid authorization, execution and delivery of this Agreement by Buyer) is the legal, valid and binding obligation of Seller Parent and Seller, as applicable, enforceable against it, as applicable, in accordance with its terms, and each other Transaction Agreement to which it is a party, when executed and delivered by each of Seller Parent, Seller or any other applicable member of Seller Group will be (assuming the valid authorization, execution and delivery by each other party thereto) the legal, valid and binding obligation of Seller Parent, Seller or any other such member of Seller Group, as applicable, enforceable against it, as applicable, in accordance with its terms, in each case, subject to bankruptcy, insolvency, reorganization, moratorium and similar laws of general application relating to or affecting creditors’ rights and to general equity principles.

(b)               Each of the Board and the Board of Directors of Seller has adopted resolutions, at meetings duly called at which a quorum of the Board and the Board of Directors of Seller, as applicable, was present, (i) determining that it is in the best interests of Seller, Seller Parent and its stockholders, and declaring it advisable, for Seller and Seller Parent to enter into this Agreement, (ii) adopting this Agreement and approving Seller and Seller Parent’s execution, delivery and performance of this Agreement and the consummation of the transactions contemplated thereby, and (iii) with respect to the Board, resolving to recommend that Seller Parent’s stockholders approve the Contemplated Transactions (the “Board Recommendation”) and directing that the Contemplated Transactions be submitted to Seller Parent’s stockholders for approval at a duly held meeting of such stockholders for such purpose (the “Stockholders Meeting”). Such resolutions have not been amended or withdrawn as of the date of this Agreement. Except for the approval of this Agreement by the affirmative vote of the holders of a majority of all of the outstanding shares of Seller Parent’s common stock entitled to vote at the Stockholders Meeting (the “Stockholder Approval”), no other vote or corporate proceedings on the part of Seller or Seller Parent are necessary to authorize, adopt or approve this Agreement or to consummate the Contemplated Transactions.

Section 3.3            No Conflict; Consents.

(a)               Subject to the receipt of Stockholder Approval and the Consents listed on Schedule 3.3(a), the execution, delivery and performance by each of Seller Parent, Seller and any other member of the Seller Group of each of the Transaction Agreements to which it is a party, the consummation of the Contemplated Transactions, and the compliance with or fulfillment of the terms, conditions or provisions hereof and thereof will not: (i) conflict with or violate any provision of the Governing Documents of Seller Parent, Seller, the Company or any of their respective Subsidiaries, (ii) conflict with or violate any Law applicable to Seller Parent, Seller, the Company or any of their respective Subsidiaries or the Business or by which any of the Company’s, any of its Subsidiary’s or the Business’s properties are bound or affected, (iii) conflict with, result in any violation or breach of, constitute a default (or event which with the giving of notice or lapse of time, or both, would become a default) under, require any Consent under, or give to others any rights of termination, acceleration or cancellation of, any Contract to which the Company or any of its Subsidiaries is a party or which is primarily related to the Business, or (iv) result in the creation of, or require the creation of, any Lien upon any of the assets or properties (including the Business Intellectual Property) of the Company and its Subsidiaries, except, in case of clauses (ii), (iii) and (iv), as would not reasonably be expected to have a Material Adverse Effect.

(b)               Other than as set forth on Schedule 3.3(b), no Consent of or from, or registration, declaration, notice, submission or filing (“Filings”) made to or with, any Governmental Authority is required to be obtained or made by Seller or Seller Parent in connection with Seller and Seller Parent’s execution and delivery of this Agreement or their performance of their respective covenants and agreements hereunder or the Contemplated Transactions, including the Restructuring, except for the following:

Section 3.4            Financial Statements and Liabilities.

(a)               Attached as Schedule 3.4(a) are (x) the unaudited statement of profit and loss and the unaudited balance sheet of the Business as of and for the six months ended June 30, 2019 and (y) the unaudited statement of profit and loss and the unaudited balance sheet of the Business as of and for the year ended December 31, 2018 (together, the “Business Financial Information”). The Business Financial Information (i) except as expressly noted therein, was prepared in accordance with the Accounting Methodology applied on a consistent basis during the period presented, (ii) fairly presents, in all material respects, the financial position of the Business as of the date presented and the profit and loss of the Business for the periods presented therein, and (iii) was prepared in accordance with the books of account and other financial records of Seller Parent (except as may be noted otherwise therein).

(b)               The Company and its Subsidiaries do not have any Liabilities, except for Liabilities (i) that are reserved against in the Business Financial Information, (ii) that have been incurred in the Ordinary Course of Business since June 30, 2019, (iii) for future performance under existing Contracts, (iv) to be included in the computation of Final Working Capital, or (v) that would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.

(c)               Schedule 3.4(c) sets forth a correct and complete description (including amount as of the date of this Agreement) of all Indebtedness of the Company and its Subsidiaries as of the date of this Agreement. After giving effect to the Restructuring, as of the Closing, the Company and its Subsidiaries will have no Indebtedness other than the Estimated Assumed Indebtedness, if any.

(d)               The books, records and accounts of the Company with respect to the Business have been maintained in material compliance with applicable legal and accounting requirements and in accordance with sound business practices, and such records are accurate in all material respects and reflect actual, bona fide transactions.

(e)               The system of internal controls over financial reporting of Seller Parent and the Company with respect to the Business is designed to provide measurable assurance (i) that transactions are recorded as necessary to permit preparation of financial statements in accordance with GAAP, (ii) that transactions are executed only in accordance with the authorization of management, and (iii) regarding prevention or timely detection of the unauthorized acquisition, use or disposition of the assets of the Business, in each case, in all material respects.

Section 3.5            Title of Assets.

After giving effect to the Restructuring, the Company and its Subsidiaries will have good and valid title to, or a valid leasehold interest in, all tangible personal property required to conduct the Business as presently conducted, free and clear of all Liens, except (i) as set forth on Schedule 3.5, (ii) for Permitted Liens and (iii) as would not, individually or in the aggregate, reasonably be expected to be material to the Company, its Subsidiaries or the Business, taken as a whole. Notwithstanding the foregoing, the parties acknowledge and agree that this representation and warranty shall not, as of the Closing Date, (x) apply to any asset transferred from the Company or any of its Subsidiaries to any members of the Seller Group pursuant to the Restructuring or (y) any Inventory disposed of in the Ordinary Course of Business and not in violation of this Agreement.

Section 3.6            Capitalization; Ownership.

(a)               Except as set forth on Schedule 3.6(a), all of the Interests and the equity interests of the Company’s Subsidiaries are duly authorized, validly issued, fully paid, non-assessable, free of preemptive rights and free and clear of any Liens other than restrictions under applicable securities Laws. There are no (i) outstanding options, warrants, rights, calls, commitments, conversion rights, rights of exchange, subscriptions, claims of any character, Contracts, obligations convertible or exchangeable securities or other similar commitments, contingent or otherwise, relating to the equity interests of the Company or any of its Subsidiaries, (ii) outstanding Contracts of the Company or any of its Subsidiaries, their respective equityholders or any other Person to purchase, redeem or otherwise acquire any outstanding equity interests of the Company or any of its Subsidiaries, or securities or obligations of any kind convertible into any equity interests of the Company or any of its Subsidiaries, (iii) dividends which have accrued or been declared but are unpaid on the equity interests of the Company or any of its Subsidiaries, (iv) outstanding or authorized equity appreciation, phantom stock, stock plans, profit participation plans, profit units, equity plans or similar rights with respect to the Company or any of its Subsidiaries or the Business, and (v) voting Contracts or other equityholder Contracts relating to the management or equity of the Company or any of its Subsidiaries (other than their respective Governing Documents). Other than VES and GIPOP, the Company does not own, directly or indirectly, any capital stock, membership interest, partnership interest, joint venture interest or other equity interest in any Person, and the Company or any of its Subsidiaries are not subject to any obligation or requirement to provide for or make any investment in any Person. Except as set forth on Schedule 3.6(a), none of the partnership interests in GIPOP owned by the Company is subject to voting trust, transfer restrictions or other similar arrangements that relate to the voting or control of such interest. None of the Company or any of its Subsidiaries is the subject of any bankruptcy, dissolution, liquidation, reorganization or similar proceeding.

(b)               Seller owns, and upon delivery by Seller to Buyer of the Interests pursuant to Article II, Buyer will own of record and beneficially all of the Interests. Schedule 3.6(b) accurately and completely sets forth the capital structures of the Company and its Subsidiaries, including the equity interests which are authorized and which are issued and outstanding.

Section 3.7            Sufficiency of Assets.

(a)               Except as set forth on Schedule 3.7(a) or for assets, services and supplies to be provided pursuant to the Transition Services Agreement and, subject to the receipt from any third parties of any required Consents to assignment or change of controls, the rights, services, properties and assets of the Company and its Subsidiaries (excluding the Business Intellectual Property), after giving effect to the Restructuring, constitute all of such material assets, properties, rights and interests used in or necessary for the operation and maintenance of the Business immediately after the Closing in substantially the same manner as currently operated.

(b)               Except as set forth on Schedule 3.7(b) or for assets, services and supplies to be provided pursuant to the Transition Services Agreement related to the Business Intellectual Property and, subject to the receipt from any third parties of any required Consents to assignment or change of controls, the rights, services, properties and assets of the Company and its Subsidiaries related to the Business Intellectual Property, after giving effect to the Restructuring, constitute all of such assets, properties, rights and interests related to Business Intellectual Property used in or necessary for the operation and maintenance of the Business immediately after the Closing in substantially the same manner as currently operated.

Section 3.8            Real Property.

(a)               After giving effect to the Restructuring, (i) the Company and its Subsidiaries will have legal and valid fee simple title to all of the fee owned real property of the Business, each of which is described by physical address, tax parcel number or map and lot designation, along with its current use and owner (after giving effect to the Restructuring), on Schedule 3.8(a) (the “Owned Real Property”), free and clear of all Liens, except for Permitted Liens, (ii) except as set forth on Schedule 3.8(a), there are no Leases from the Company or any of its Subsidiaries to any Person granting the right to use or occupy the Owned Real Property or any portion thereof, and (iii) except as set forth on Schedule 3.8(a), there are no outstanding options, rights of first offer or rights of first refusal to purchase the Owned Real Property or any portion thereof.

(b)               (i) After giving effect to the Restructuring, the Company and its Subsidiaries will have good and valid leasehold, subleasehold or licensee interest in and to all of the leased, subleased or licensed real property of the Business, which is leased, subleased or licensed pursuant to the agreements described on Schedule 3.8(b) (such real property, the “Leased Real Property”, and together with the Owned Real Property, the “Company Real Property”), free and clear of all Liens, except for Permitted Liens, (ii) Seller Group has made available to Buyer a true and complete copy of each Lease underlying the Leased Real Property (such Leases, the “Real Property Leases”), (iii) each Real Property Lease is in full force and effect, subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar Laws affecting creditors’ rights and remedies generally and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity), (iv) no member of Seller Group has received any written notice of any currently outstanding and uncured material defaults under any of the Real Property Leases, (v) except as set forth on Schedule 3.8(b), there are no Leases from the Company or any of its Subsidiaries to any Person granting the right to use or occupy the Leased Real Property or any portion thereof, and (vi) neither the Company nor any of its Subsidiaries has collaterally assigned or granted any mortgage or other security interest in any Real Property Lease or any interest therein.

(c)               No member of Seller Group has received a written notice from a Governmental Authority alleging a currently outstanding and uncured material violation by the Company or any of its Subsidiaries of any building, zoning, land use or similar laws, codes, ordinances, regulations and orders of Governmental Authorities applicable to any Company Real Property. No member of Seller Group has received any written notice or claim from any counterparty or beneficiary of any easement, covenant, condition, restriction or similar provision in any instrument of record or unrecorded agreement affecting the Company Real Property alleging that the current use and occupancy of the Company Real Property or the operation of the Business as currently conducted thereon violates in any material respect any such easement, covenant, condition, restriction or similar provision.

(d)               There is no pending or, to the Knowledge of Seller, threatened condemnation, expropriation, eminent domain or similar proceeding affecting all or any part of the Company Real Property, and no member of Seller Group has received any written notice thereof with respect to the Company Real Property.

(e)               To the Knowledge of Seller, neither the Company nor any of its Subsidiaries has any right to acquire or lease any real property pursuant to any outstanding Contract or option to purchase or lease any real property that, as of the date hereof, is intended to be used in the operation of the Business.

(f)                All improvements located on the Company Real Property are in sufficiently good condition and repair (giving due account to the age and length of use of the same, ordinary wear and tear excepted) to allow the Business to be operated in all material respects as currently operated and as presently proposed to be operated. No fact or condition exists which would reasonably be expected to result in the termination or reduction of the current access from the Company Real Property to existing roads or to sewer or other utility services presently serving such Company Real Property that would materially impact the use of the Company Real Property. No casualty event has occurred with respect to the Company Real Property that has not been fully remedied.

Section 3.9            Contracts.

(a)               Schedule 3.9 sets forth a list of all Contracts in the categories listed below, that are Contracts primarily related to the Business, in each case in effect as of the date hereof (collectively, the “Material Contracts”):

(b)               All Material Contracts (and any such Contract that would have been one if entered into prior to the date hereof but is entered into after the date hereof) are valid, binding and in full force and effect and enforceable by the applicable member of Seller Group (assuming the valid authorization, execution and delivery by each other party thereto) in accordance with their respective terms, subject to bankruptcy, insolvency, reorganization and other Laws of general applicability relating to or affecting creditors’ rights and to general equity principles. None of Seller, any Affiliate of Seller or, to the Knowledge of Seller, any other party, is or at any time since December 31, 2017 has been, in material default or breach, and to the Knowledge of Seller, no event has occurred which, with the giving of notice or the lapse of time or both, is or would constitute such a material default or breach, under the terms of any such Material Contract (or such Contract contemplated by the first parenthetical of this Section 3.9(b)). Seller and its Affiliates have not received any written notice since December 31, 2017 from any other party to any Material Contract alleging any material default by Seller or its applicable Affiliate thereunder. Prior to the date of this Agreement, true and complete copies of each Material Contract (including all material supplements and amendments thereto) have been made available by the Company (or its Affiliates) to Buyer.

Section 3.10        Litigation.

Except as set forth on Schedule 3.10, (a) as of the date hereof, there is no Legal Proceeding pending or, to the Knowledge of Seller, threatened against any member of Seller Group (or, to the Knowledge of Seller, GIPOP) with respect to the Business, and (b) there are no Legal Proceedings pending or, to the Knowledge of Seller, threatened that (i) would adversely affect the ability of Seller to consummate the Contemplated Transactions, (ii) would adversely affect the ability of Buyer to operate the Business immediately following the Closing in substantially the same manner as operated by the Company and its Subsidiaries, after giving effect to the Restructuring, prior to the Closing, or (iii) otherwise would reasonably be expected to have a Material Adverse Effect. Except as set forth on Schedule 3.10, no member of the Seller Group is subject to any outstanding Governmental Order with respect to the Business.

Section 3.11        Absence of Changes or Events.

Since December 31, 2018, there has been no circumstance, condition, event, development or change that has resulted in, or would reasonably be expected to result in, a Material Adverse Effect. Without limiting the generality of the foregoing, except as set forth on Schedule 3.11, since December 31, 2018:

(a)               The Business has been conducted in the Ordinary Course of Business and no material assets of the Business, tangible or intangible, have been sold, leased, transferred or assigned, in each case outside the Ordinary Course of Business or in connection with the Restructuring,

(b)               No Material Contract has been entered into in connection with the Business outside the Ordinary Course of Business,

(c)               No party (including any member of Seller Group) has accelerated, terminated, made material modifications to, canceled, rescinded, or waived or entered into an accord and satisfaction with respect to any term, condition or provision of, any Material Contract,

(d)               No party has imposed any Liens, other than Permitted Liens, upon any of the material assets of the Business,

(e)               No material capital expenditures have been made with respect to the Business by Seller Group outside the Ordinary Course of Business,

(f)                No licenses or sublicenses of any rights under or with respect to any material Intellectual Property exclusively related to the Business have been granted by a member of Seller Group,

(g)               No material change in the employment terms for any Business Employee that would be prohibited by Section 5.1 if such action was proposed to be taken after the execution and delivery of this Agreement has been made outside the Ordinary Course of Business and except as required by Contract or Law,

(h)               None of Seller Parent, Seller, the Company or any of its Subsidiaries has taken any action with respect to the Business that would be prohibited by clauses (v), (vi), (viii), (xv), (xvii), (xviii), (xix), (xx) and (xxii) and, to the extent related to the foregoing clauses, (xxiii) of Section 5.1(b) if such action was proposed to be taken after the execution and delivery of this Agreement by the parties to this Agreement, and

(i)                 Except as set forth in any of the Transaction Agreements, no member of Seller Group has committed to do, effect, implement or acquiesce to any of the actions described in this Section 3.11.

Section 3.12        Compliance with Laws; Sanctions; Anti-Corruption Laws and Anti-Money Laundering Laws.

(a)               No member of Seller Group is in violation in any material respect of any applicable Law or Governmental Order in connection with the conduct or operation of the Business. Since December 31, 2016, no member of Seller Group has received any written or, to the Knowledge of Seller, oral, communication from a Governmental Authority that alleges that such member of Seller Group is not in compliance in any material respect with any applicable Law in respect of the Business.

(b)               (i) All Permits required to conduct the Business as currently conducted have been obtained by the applicable member of Seller Group, and are valid and in full force and effect, except where the failure to obtain any such Permit or the failure to be valid and in full force and effect would not reasonably be expected to have a Material Adverse Effect, and (ii) each applicable member of Seller Group is in compliance with all such Permits it holds, except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.

(c)               Seller Group conducts its business in compliance in all material respects with Sanctions Law and Anti-Corruption Laws and Anti-Money Laundering Laws and Seller Parent has instituted and maintains policies and procedures reasonably designed to ensure compliance in all material respects by the Business with such Laws.

(d)               No member of Seller Group or any of its respective directors, officers, employees or agents acting on behalf of Seller Group (with respect to the Business) is a Person that is, or is owned or controlled by Persons that are a Sanctions Target or located, organized or resident in a Sanctioned Territory.

(e)               No member of Seller Group, nor to Seller Parent’s knowledge, any person controlling or controlled by Seller Group is a Sanctions Target, and the funds used in connection with this Agreement are not derived from activities that contravene applicable Anti-Money Laundering Laws including funds derived from Sanctions Targets.

(f)                Seller Parent is not, and is not acting, directly or indirectly, on behalf of any Sanctions Targets.

(g)               This Section 3.12 does not relate to (i) Environmental Matters, which are covered in Section 3.15, (ii) Taxes, which are covered in Section 3.16, and (iii) Privacy and Security, which is covered in Section 3.18.

Section 3.13        Employee Benefit Plans.

(a)               Schedule 3.13(a) includes a complete list of each Company Plan and each other material Plan, separately identifying by asterisk each Plan that is a Company Plan. With respect to each Plan described in the immediately preceding sentence, to the extent applicable, Seller has provided or caused to be provided to Buyer: (i) the current summary plan description and any summary of material modifications thereto, (ii) a complete copy of the Plan document, or, with respect to any such plan that is not in writing, a written description of the material terms thereof, and all amendments or supplements thereto, (iii) a copy of any trust agreements, insurance contracts or documents of any other funding arrangements in connection with each Plan, (iv) a copy of the most recent annual report (Form 5500), if any, filed with the IRS or Governmental Authority for each Plan, (v) the most recently received IRS determination letter, if any, for each Plan or similar qualification letter from any non-U.S. Governmental Authority, and (vi) the most recently prepared actuarial report, financial statement or similar report, if any, relating to each Plan. Each of the Plans is subject only to the Laws of the United States or a political subdivision thereof.

(b)               Except as set forth in Schedule 3.13(b), no Plan and no employee benefit plan maintained or contributed to by the Company or a Commonly Controlled Entity during the past six years, is a (i) “defined benefit plan” (as defined in Section 414(j) of the Code), (ii) “multiemployer plan” (as defined in Section 3(37) of ERISA), (iii) “multiple employer plan” (as described in Section 413(c) of the Code) or (iv) a Plan that is otherwise subject to Title IV of ERISA or Section 412 of the Code. With respect to the Company and its Subsidiaries, there does not exist any set of circumstances that could reasonably be expected to give rise to any Controlled Group Liability that would result in Liability to Buyer or its Subsidiaries on or after the Closing Date, except for any Liability that would not be reasonably expected to have a Material Adverse Effect.

(c)               Except as set forth on Schedule 3.13(c), neither the execution or delivery of this Agreement nor the consummation of the Contemplated Transactions, either alone or in combination with another event (whether contingent or otherwise) will: (i) entitle any Participant to any retention, change in control, severance, termination or similar compensation or benefits, (ii) increase any benefits payable to or trigger any other material obligation with respect to any Participant pursuant to a Plan, (iii) result in any forgiveness of any Indebtedness with respect to any Participant, (iv) result in the acceleration of the time of payment or vesting of benefits, or trigger any payment or funding (through a grantor trust or otherwise), of compensation or benefits under a Plan with respect to any Participant, or (v) result in any payment that would be considered an “excess parachute payment” within the meaning of Section 280G of the Code.

(d)               No Participant is entitled to any gross-up, make-whole or other additional payment in respect of any Tax or interest and penalty related thereto.

(e)               Except as set forth on Schedule 3.13(e), Seller Parent, Seller, the Company and their respective Subsidiaries do not have any current or projected Liability in respect of, and do not sponsor or otherwise provide any or promise any post-employment or retiree health, disability or life insurance or any other post-employment or retiree employee welfare benefits to any Participant, except to the extent required under Section 601 et seq. of ERISA and Section 4980B of the Code.

(f)                (i) Each of the Plans has been established, administered and operated in material compliance with its terms and all the requirements of ERISA and the Code, if applicable, and any other applicable Law, (ii) all contributions, premiums and expenses required to be made or paid by Law or by the terms of a Plan by a member of the Seller Group have been made or paid in full on or before their due date thereof, and any contributions, premiums or expenses required to be made or paid under the terms of any Plan or under applicable Law that are payable but not due have been accrued in accordance with GAAP, (iii) Seller and its Affiliates (A) have performed all material obligations required to be performed by them under any Plan and (B) are not in any material respect in default under or in violation of any Plan, and there is no material default or violation by any other party with respect to any Plan, (iv) each Plan that is intended to be funded and/or book-reserved are funded and/or book-reserved, as appropriate, in all material respects, based upon reasonable actuarial assumptions, (v) there has not been any prohibited transaction (within the meaning of Section 406 of ERISA or Section 4975 of the Code) with respect to any Plan and (vi) except as disclosed on Schedule 3.13(f)(vi), no Legal Proceeding, claim or governmental investigation, audit or other proceeding by the Department of Labor, the Pension Benefit Guaranty Corporation (the “PBGC”), the IRS or other Governmental Authority is pending or threatened with respect to any Plan (other than routine claims for benefits in the Ordinary Course of Business).

(g)               Except as set forth in Schedule 3.13(g), with respect to any Plan that is subject to Title IV of ERISA, (i) there does not exist any failure to meet the “minimum funding standard” of Section 412 of the Code or 302 of ERISA (whether or not waived), (ii) such plan is not in “at-risk” status for purposes of Section 430 of the Code, (iii) no reportable event within the meaning of Section 4043(c) of ERISA has occurred in the two years prior to the date hereof, (iv) all premiums to PBGC have been timely paid in full, and (v) the PBGC has not instituted proceedings to terminate any such plan.

(h)               Each Plan that is intended to be qualified within the meaning of Section 401(a) of the Code has received a favorable determination letter as to its qualification or is covered by a prototype plan opinion letter and the related trust is tax-exempt under Section 501(a) of the Code, and nothing has occurred that could reasonably be expected to adversely affect such qualification.

Section 3.14        Employees; Labor Matters.

(a)               Schedule 3.14(a)(i) contains a complete and accurate list of each Business Employee, together with true and complete information concerning the name, job title, work location, dates of employment (start date and service reference date), annual salaries or hourly wages, part-time, full-time, temporary or other status, exempt or non-exempt status, union or nonunion status, whether or not any such Business Employee is an Inactive Business Employee, including the basis of inactive status and expected date of return, commissions, target bonus or other incentive compensation (including equity-based awards) and bonuses paid or payable during fiscal year 2017 and fiscal year 2018 of each such Business Employees. Except as set forth on Schedule 3.14(a)(ii), neither the Company nor any of its Subsidiaries is a party to any management, employment, termination or other agreements with any Business Employee or Former Employee guaranteeing employment for a period of time or for termination or severance benefits.

(b)               There are no material Legal Proceedings, claims (other than ordinary claims under Plans), disputes, actions, grievances or disciplinary actions pending or, to the Knowledge of Seller, threatened, by any Business Employees or Former Employees or other current or former service provider of the Business.

(c)               Except as set forth on Schedule 3.14(c), no member of the Seller Group is a party to or bound by any Collective Bargaining Agreement with respect to any Business Employee or Former Employee. Seller has provided or caused to be provided to Buyer copies of each such Collective Bargaining Agreement.

(d)               (i)There are no pending or threatened, and since December 31, 2016 there have been no, strikes, slowdowns, work stoppages, lockouts, unfair labor practice charges, or other material collective labor disputes affecting the Business, (ii) there is no complaint against a member of the Seller Group pending or, to the Knowledge of Seller, threatened before the National Labor Relations Board or any other applicable labor relations Governmental Authority by or on behalf of any Business Employee or Former Employee and (iii) no organizational effort is presently being made or threatened by or on behalf of any labor union with respect to the Business Employees or Former Employees.

(e)               (i) The Seller and its Affiliates are and since December 31, 2016 have been in compliance with respect to the Business in all material respects with all applicable Laws respecting labor relations, equal employment opportunities, fair employment practices, employment discrimination, harassment, retaliation, reasonable accommodation, disability rights or benefits, immigration, wages, hours, overtime, compensation, child labor, hiring, promotion and termination of employees, working conditions, meal and break periods, privacy, health and safety, workers’ compensation, leaves of absence, paid sick leave and unemployment insurance, (ii) with respect to the Business, Seller and its Affiliates are in material compliance with all applicable Laws concerning the proper treatment of independent contractors, (iii) all Business Employees and Former Employees classified as exempt under the Fair Labor Standards Act and state and local wage and hour laws are properly classified, (iv) with respect to the Business, Seller and its Affiliates are in material compliance with and, since December 31, 2016, has materially complied with all immigration laws, including Form I-9 requirements and any applicable mandatory E-Verify obligations and (v) since December 31, 2016, Seller and its Affiliates have not received any written or oral communication of the intent of any Governmental Authority responsible for the enforcement of such Laws to conduct an investigation of, or affecting, the Company or the Business and no such investigation is in progress.

(f)                Since December 31, 2016, Seller and its Affiliates have not failed to provide advance notice of layoffs or terminations as required by the WARN Act and all similar Laws, to the extent applicable, and there has been no “mass layoff” or “plant closing” (as defined by the WARN Act and all similar Laws) with respect to the Company, its Subsidiaries or the Business.

(g)               To the Knowledge of Seller, since December 31, 2016, no formal allegations or reports of sexual harassment have been made to Seller or any of its Affiliates against a Participant.

Section 3.15        Environmental Matters.

(a)               Other than as set forth on Schedule 3.15(a), each member of Seller Group (with respect to the Business) and the Company and its Subsidiaries (and to the Knowledge of Seller, GIPOP) is, and since December 31, 2014 has been, in compliance with all applicable Environmental Laws, except for such noncompliance that would not be reasonably expected to have a Material Adverse Effect.

(b)               Other than as set forth on Schedule 3.15(b), each member of Seller Group (with respect to the Business) and the Company and its Subsidiaries (and to the Knowledge of Seller, GIPOP) has obtained all Permits required by applicable Environmental Laws (collectively, the “Environmental Permits”) and is, and since December 31, 2014 has been, in compliance with the terms and conditions of such Environmental Permits, except for such failure to obtain or failure to comply that would not be reasonably expected to have a Material Adverse Effect.

(c)               During the three years prior to the date hereof, no member of Seller Group (with respect to the Business) has, nor has the Company and its Subsidiaries (nor, to the Knowledge of Seller, has GIPOP), received written notice of any injunction, decree, order, judgment, lawsuit, claim, proceeding, citation, directive or summons (collectively, the “Environmental Proceedings”) alleging any violation of, or Liability under, any Environmental Law or Environmental Permit, except for such Environmental Proceedings that have been fully and finally resolved or that would not be reasonably expected to have a Material Adverse Effect.

(d)               There is no Legal Proceeding pending or threatened in writing against any member of Seller Group, the Company and its Subsidiaries (or to the Knowledge of Seller, GIPOP) in connection with the Business alleging any violation of, or Liability under, any Environmental Law or Environmental Permit.

(e)               None of the Seller Group (with respect to the Business), the Company and its Subsidiaries (or to the Knowledge of Seller, GIPOP) nor, to the Knowledge of Seller, any other Person has Released Hazardous Materials at, on, under or from any Company Real Property or any other location that would reasonably be expected to result in any Liability to any member of the Seller Group (with respect to the Business) or the Company and its Subsidiaries (or, to the Knowledge of Seller, GIPOP) under any Environmental Law, except for such Liability that would not be reasonably expected to have a Material Adverse Effect.

(f)                Except as set forth in the Real Property Leases and Material Contracts, the Business has not expressly assumed any Liability, including any obligation for corrective action or remedial action, of any other Person related to Environmental Laws.

Section 3.16        Taxes.

(a)               All material Tax Returns required to be filed by the applicable member of Seller Group with respect to the Company, its Subsidiaries or the Business have been duly and timely filed (taking into account applicable extensions), and all such Tax Returns are true, correct and complete in all material respects. The applicable member of Seller Group has timely paid (or caused to be timely paid) all material amounts of Taxes with respect to the Company, its Subsidiaries or the Business (other than Taxes that are being contested in good faith and for which adequate reserves have been established in the Business Financial Information).

(b)               All material Taxes that the applicable member of Seller Group, with respect to the Company, its Subsidiaries or the Business, is or was required by a Taxing Authority to withhold, deduct, or collect have been duly withheld, deducted, and collected and timely paid to the proper Taxing Authority.

(c)               All material deficiencies asserted or material assessments made with respect to the Company, its Subsidiaries or the Business as a result of any examinations by any Taxing Authority of the Tax Returns of any member of Seller Group have been fully paid. There is no action, suit, proceeding, audit, investigation or claim pending or threatened in writing in respect of any material amount of Taxes for which a member of Seller Group is or may become liable with respect to the Company, its Subsidiaries or the Business, nor has any deficiency or claim for any such material amount of Taxes been proposed, asserted or threatened in writing.

(d)               The Company and its Subsidiaries have not waived any statute of limitations with respect to any material Taxes or agreed to any extension of time with respect to a material Tax assessment or deficiency.

(e)               No member of Seller Group is a party to any Tax sharing, allocation, indemnity or similar agreement or arrangement affecting the Company, its Subsidiaries or the Business that would, in any manner, bind, obligate or restrict Buyer or its Affiliates, the Company or its Subsidiaries, other than an agreement entered into in the Ordinary Course of Business the primary purpose of which is not the sharing of Taxes. Neither the Company nor any of its Subsidiaries has any Liability for the Taxes of any other Person (other than any member of the U.S. Federal Consolidated Group the common parent of which is Seller Parent) (i) under Treasury Regulation Section 1.1502-6 (or any similar provision of state, local, or foreign Law), (ii) as a transferee or successor, by Contract or otherwise (other than pursuant to a Contract entered into in the Ordinary Course of Business the primary purpose of which is not the sharing of Taxes) or (iii) as a result of the liquidation, dissolution, sale or other disposition of the stock or assets of any current or prior Subsidiary.

(f)                There are no Liens for Taxes, other than Liens that are Permitted Liens, upon the Interests or assets of the Company, its Subsidiaries or the Business.

(g)               No written claim has been made to any member of Seller Group with respect to the Company, its Subsidiaries or the Business by a Taxing Authority in a jurisdiction where such member does not file Tax Returns that such member (i) has or had a permanent establishment in that jurisdiction or (ii) is or may be subject to taxation by that jurisdiction, in each case, which claim has not been subsequently withdrawn.

(h)               For U.S. Federal income Tax and all state income Tax purposes, the Company and each of its Subsidiaries is and has always been properly classified as an entity disregarded as separate from its owner.

Section 3.17        Intellectual Property.

(a)               Schedule 3.17(a) sets forth a list of all Intellectual Property owned or licensable by Seller Group that is (i) the subject of a pending application or subsisting registration and (ii) used or held for use primarily in connection with the Business (collectively, the “Registered Intellectual Property”). The Registered Intellectual Property is subsisting and valid.

(b)               Except as set forth on Schedule 3.17(b) or as would not reasonably be expected to be material, individually or in the aggregate, to the Company, its Subsidiaries or the Business, taken as a whole, after giving effect to the Restructuring, the Company owns the Registered Intellectual Property and other Intellectual Property that is used or held for use primarily in connection with the Business (together with the Registered Intellectual Property, the “Business Intellectual Property”), free from all Liens except for Permitted Liens.

(c)               No current or former director, officer, employee, contractor or consultant of Seller Group owns any rights in or to any Business Intellectual Property.

(d)               Seller Group has taken reasonable steps to protect and maintain the confidentiality of the Know-How included in the Business Intellectual Property, to the extent it is confidential and the value of which is dependent upon the maintenance of the confidentiality thereof. To the Knowledge of Seller, there has been no unauthorized access to or disclosure of such confidential Know-How.

(e)               To the Knowledge of Seller, in its operation of the Business, no member of Seller Group has infringed upon, or misappropriated any Intellectual Property rights of any third-party. No member of Seller Group has received any written charge, complaint, claim, demand or notice (i) alleging any interference, infringement, misappropriation or violation (including any claim that a member of Seller Group or the Company must license or refrain from using any Intellectual Property rights of any third-party) with respect to the Business or (ii) challenging the ownership, validity or enforceability of any Business Intellectual Property.

(f)                To the Knowledge of Seller, no third-party has infringed upon or misappropriated any Business Intellectual Property.

(g)               No funding, facilities or personnel of any Governmental Authority or any university, college, research institute or other educational institution was used, directly or indirectly, to create, in whole or in part, any Business Intellectual Property, except for any such funding or use of facilities or personnel that does not result in such Governmental Authority or institution obtaining any ownership of any Business Intellectual Property.

(h)               To the Knowledge of Seller, no Software included in the Business Intellectual Property is subject to any obligation or condition under any license identified as an open source license by the Open Source Initiative (www.opensource.org) that conditions the distribution of such Software on (i) the disclosure, licensing or distribution of any source code for any portion of such Software, (ii) the granting to licensees of the right to make derivative works or other modifications to such Software, (iii) the licensing under terms that allow such Software or portions thereof or interfaces therefor to be reverse engineered, reverse assembled or disassembled (other than by operation of Law) or (iv) redistribution of such Software at no license fee.

(i)                 To the Knowledge of Seller, all material computer systems, networks, hardware, Software and equipment used to process, store and maintain Business data and information or to operate the Business (the “Business IT Systems”) are reasonably sufficient in all material respects for the operation of the Business, as presently conducted. During the three years prior to the date hereof, the Business IT Systems have not materially malfunctioned or failed in a manner that has had a material impact on the Business. Seller Group has implemented reasonable backup and disaster recovery technology processes consistent with industry common practices. To the Knowledge of Seller, during the three years prior to the date hereof, no Person has gained unauthorized access to the Business IT Systems.

Section 3.18        Privacy and Security.

(a)               Seller Group’s collection, maintenance, transmission, transfer, use, disclosure, storage, disposal and security of Personally Identifiable Information in connection with the Business has complied in all material respects during the three years prior to the date hereof with all (i) Data Protection Laws, (ii) written privacy policies of Seller Group, and (iii) any Contracts to which Seller Group is a party that govern Personally Identifiable Information.

(b)               The Company and its Subsidiaries has used commercially reasonable efforts to comply with all Data Protection Laws, written privacy policies of Seller Group, and any Contracts to which Seller Group is a party that govern Personally Identifiable Information, applicable to the Business. All Personally Identifiable Information used in connection with the Business can be used by the Company and its Subsidiaries , subject to applicable Laws and Contracts, after the Closing in substantially the same manner as presently used by Seller Group.

(c)               The Company has adopted an information technology and cybersecurity policy designed to protect the Business’s confidential information and Personally Identifiable Information that is subject to Data Protection Laws, written privacy policies of Seller Group and any Contracts to which Seller Group is a party that govern Personally Identifiable Information, addressing security measures for developing, administering, and managing technology resources and applications.

(d)               During the three years prior to the date hereof, no member of Seller Group has, nor has the Company, received, with respect to the Business, any subpoenas, demands, or other written notices from any Governmental Authority investigating or inquiring into any actual or potential violation of any Data Protection Law by the Seller Group. In connection with the conduct of the Business, to the Knowledge of Seller, during the three years prior to the date hereof, no event has occurred that requires any member of Seller Group to provide any notices to any Person, under Data Protection Laws or any Contracts to which Seller Group is a party that govern Personally Identifiable Information, in connection with a disclosure of Personally Identifiable Information, and no member of Seller Group has failed to provide such notice where so required.

(e)               To the Knowledge of Seller, during the three years prior to the date hereof, the Business IT Systems have not incurred a security breach that has resulted in a compromise of (i) confidential information or (ii) Personally Identifiable Information in violation of Data Protection Laws.

Section 3.19        Insurance.

Schedule 3.19 sets forth a correct and complete list of all material insurance policies maintained by the applicable members of Seller Group with respect to the Business (the “Policies”), each of which is in full force and effect and, to the Knowledge of Seller, such Policies comprise the types and the amounts of insurance policies customarily carried by businesses of similar size in the same industry. The applicable member of the Seller Group is not in breach or default, and the Seller Group has not taken any action or failed to take any action which, with notice or the lapse of time, would constitute such a breach or default, or permit termination or modification, of any of the Policies. No written notice of cancellation or termination has been received by the applicable member of the Seller Group with respect to any of the Policies. There is no pending material claim by the applicable member of the Seller Group against any insurance carrier under any of the Policies with respect to the Business.

Section 3.20        No Broker’s or Finder’s Fees.

Except as set forth on Schedule 3.20, no agent, broker, investment banker or finder acting on behalf of Seller Group is or will be entitled to any broker’s, investment banker’s or finder’s fee or any other commission or fee in connection with any of the Contemplated Transactions.

Section 3.21        Opinion of Financial Advisor.

The Board has received an opinion from Houlihan Lokey Capital, Inc. to the effect that, as of the date of such opinion and subject to the assumptions, qualifications, limitations and other matters considered in connection with the preparation of such opinion, the Purchase Price to be received by Seller for the Interests in the Contemplated Transactions pursuant to this Agreement was fair, from a financial point of view, to Seller Parent.

Section 3.22        FERC Regulations.

Seller is not subject to regulation as (a) a “public utility” as that term is defined in the FPA, or (b) a “public utility”, “electric utility”, “electric corporation”, or similar entity under the laws of any state. Seller is “holding company” as that term is defined in PUHCA solely with respect to its ownership of “qualifying facilities” as defined by Part 292 of FERC’s regulations, and is exempt from the books and records requirements of PUHCA.

Section 3.23        Affiliate Transactions.

(a)               Schedule 3.23 lists all Contracts in effect as of the date hereof between the Company or any of its Subsidiaries, on the one hand, and Seller Group (other than the Company or its Subsidiaries), on the other (in either case, including any director, officer, equityholder or Affiliate of the Company or other member of Seller Group, as applicable) which is currently in effect.

(b)               No director or officer or equityholder of Seller, the Company or any other member of the Seller Group owns, directly or indirectly, any property, asset or right used by the Company or any of its Subsidiaries in respect of the Business, or any material interest in any Person that is engaged in business as a lessor, lessee, customer or supplier of the Company or any of its Subsidiaries in respect of the Business. To the Knowledge of Seller, no equityholder or other Affiliate of Seller Parent owns, directly or indirectly, any property, asset or right used by the Company or any of its Subsidiaries in respect of the Business, or any material interest in any Person that is engaged in business as a lessor, lessee, customer or supplier of the Company in respect of the Business.

Section 3.24        Material Customers and Suppliers.

(a)               Schedule 3.24(a) lists the ten largest customers (including distributors) of the Business (measured by revenues) for the calendar year 2018 (the “Material Customers”).

(b)               Schedule 3.24(b) lists the ten largest Business Specific Suppliers of the Business (measured by aggregate amounts paid or payable by Seller) for the calendar year 2018 (the “Material Suppliers”).

(c)               Since January 1, 2019, until the date hereof, no Material Customer or Material Supplier has (i) canceled or otherwise terminated its relationship with respect to the Business, (ii) provided written notice to the Company or any of its Affiliates of its intent to cancel or otherwise terminate its relationship with the Company or any of its Affiliates, (iii) decreased or limited in any material respect its purchases from, or sales to, the Company or any of its Affiliates or (iv) decreased or limited or otherwise reduced in any material respect the price paid, in the aggregate or on a per item basis, for its purchases from, or sales to, the Company or any of its Affiliates.

Section 3.25        Product and Service Warranties and Guaranties.

Except as set forth on Schedule 3.25, Seller Group does not make any express warranty or guaranty as to goods sold, or services provided by, any member of Seller Group with respect to the Business (a “Warranty”), and there is no pending or, to the Knowledge of Seller, threatened claim alleging any breach of any Warranty.

Section 3.26        Disclaimer.

EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS ARTICLE III, SELLER EXPRESSLY DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND OR NATURE, EXPRESS OR IMPLIED, INCLUDING ANY REPRESENTATION OR WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE OR NON-INFRINGEMENT OF INTELLECTUAL PROPERTY WITH RESPECT TO ITS ASSETS, IT BEING UNDERSTOOD THAT SUCH ASSETS ARE BEING ACQUIRED “AS IS, WHERE IS” ON THE CLOSING DATE, AND IN THEIR PRESENT CONDITION.

ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF BUYER

Buyer represents and warrants to Seller that the statements contained in this Article IV are true and correct as of the date of this Agreement:

Section 4.1            Organization.

Buyer is duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is organized and has all requisite organizational power and authority to own, lease and operate its properties and to conduct its business as currently conducted.

Section 4.2            Power and Authority.

Buyer has all requisite corporate power and authority to enter into, deliver and perform its obligations under the Transaction Agreements and to carry out the Contemplated Transactions. Buyer has duly authorized the execution and delivery of the Transaction Agreements and consummation of the Contemplated Transactions. This Agreement has been duly executed and delivered by Buyer and (assuming the valid authorization, execution and delivery of this Agreement by Seller Parent and Seller) is the legal, valid and binding obligation of Buyer enforceable against it in accordance with its terms, and each other Transaction Agreement when executed and delivered by Buyer will be (assuming the valid authorization, execution and delivery by each other party thereto) the legal, valid and binding obligation of Buyer enforceable against it in accordance with its terms, in each case, subject to bankruptcy, insolvency, reorganization, moratorium and similar Laws of general application relating to or affecting creditors’ rights and to general equity principles.

Section 4.3            No Conflict; No Violation of Laws.

The execution, delivery and performance by Buyer of each of the Transaction Agreements, the consummation of the Contemplated Transactions, and the compliance with or fulfillment of the terms, conditions or provisions hereof and thereof will not: (a) conflict with or violate any provision of the Governing Documents of Buyer, (b) violate any Law applicable to Buyer, (c) result in the creation of, or require the creation of, any material Lien upon any of the assets of Buyer or (d) require on the part of Buyer any notice to or filing with, or any authorization, Consent or approval of, any Governmental Authority or any other Person except (i) in the cases of clauses (a), (b) or (c), to the extent such conflict, Liability or Lien would not, individually or in the aggregate in the aggregate, in any material respect adversely affect the ability of Buyer to perform its obligations under the Transaction Agreements and (ii) in the cases of clauses (b) and (d), other than any waiting period under the HSR Act, the FERC Approval, the FERC Waiver, and any notices or Consents for which the failure to make such notice or obtain such Consent would not in any material respect adversely affect the ability of Buyer to perform its obligations under the Transaction Agreements.

Section 4.4            Litigation.

As of the date of this Agreement, there is no Legal Proceeding which is pending or, to the Knowledge of Buyer, threatened against Buyer which would in any material respect affect the ability of Buyer to perform its obligations under the Transaction Agreements.

Section 4.5            Financial Capacity.

(a)               Buyer has delivered to Seller true and complete copies of (i) the final and fully executed equity commitment letter, dated the date hereof, between Buyer and those certain equity investors party thereto (the “Equity Commitment Letter”), pursuant to which such equity investors have each committed, subject to (and only to) the terms and conditions thereof, to invest the cash amounts set forth therein in the manner set forth therein, and of which Seller is a third party beneficiary and entitled to specifically enforce the terms thereof (the “Equity Financing”) and (ii) the final and fully executed debt commitment letter, dated the date hereof, among Buyer, Credit Suisse Loan Funding LLC, Credit Suisse AG, Cayman Islands Branch and Citizens Bank, N.A. (together with all exhibits, schedules, term sheets and attachments thereto, the “Debt Commitment Letter” and, together with the Equity Commitment Letter, the “Financing Letters”), pursuant to which the Debt Financing Sources party thereto have committed, subject to (and only to) the terms and conditions thereof, to lend to Buyer the amounts set forth therein (the “Debt Financing” and, together with the Equity Financing, the “Financing”). Assuming the satisfaction of the conditions set forth in the Financing Letters, the aggregate amounts to be provided pursuant to the Financing Letters, together with Buyer’s cash on hand and amounts available to be drawn under Buyer’s revolving credit facility, will be sufficient for Buyer, when required by the terms of this Agreement, to (A) pay an amount in cash equal to the Purchase Price pursuant to Section 2.3 and (B) pay any and all fees and expenses required to be paid by Buyer in connection with the Contemplated Transactions and the Financing. Buyer has also delivered to Seller a true and complete copy of any final fee letter (which may be redacted as to fee amounts, “market flex” terms and other customary commercial terms other than any such terms that would (x) reduce the amount of the Debt Financing or (y) impose any additional conditions or other contingencies (or adversely amend, modify or expand any existing conditions or other contingencies) to the obligations of the Debt Financing Sources party to the Debt Commitment Letter to fund the Debt Financing) executed in connection with the Debt Commitment Letter (any such fee letter, as it may be redacted, a “Fee Letter”).

(b)               As of the date hereof, (i) none of the Financing Letters or the Fee Letters has been amended or modified, (ii) no such amendment or modification is contemplated or in discussion by any party thereto with respect to the Equity Commitment Letter or, to the Knowledge of Buyer, with respect to the Debt Commitment Letter and the Fee Letters (other than, in the case of the Debt Commitment Letter and the Fee Letters, any customary amendment or modification solely to join additional financing sources, arrangers, bookrunners, syndication agents, documentation agents or other agents, managers, co-managers or similar entities as contemplated by the Debt Commitment Letter), (iii) the respective commitments set forth in the Financing Letters have not been withdrawn or rescinded in any respect and no such withdrawal or rescission is contemplated or in discussion with respect to the Equity Commitment Letter or, to the Knowledge of Buyer, with respect to the Debt Commitment Letter and the Fee Letters, and (iv) assuming the accuracy of the representations and warranties set forth in Article III and the satisfaction of the conditions set forth in Section 6.1 and Section 6.2 at Closing, Buyer has no reason to believe that any of the conditions to the funding of the Financing set forth in the Financing Letters will not be satisfied on a timely basis or that the funding of the Financing will not be made to Buyer on a timely basis in order to consummate the transactions contemplated by this Agreement.

(c)               As of the date hereof, the Financing Letters are in full force and effect and are the valid, binding and enforceable obligations of Buyer and, with respect to the Equity Commitment Letter, the other parties thereto and, with respect to the Debt Commitment Letter and the Fee Letters, to the Knowledge of Buyer, the other parties thereto, subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar Laws affecting creditors’ rights and remedies generally and subject to general principles of equity (regardless of whether enforceability is considered in a proceeding at law or equity). There are no conditions precedent or other contingencies to the funding of the full amount of the Financing (including any flex provisions), other than as set forth in the Financing Letters or the Fee Letters. As of the date hereof, other than the Financing Letters or the Fee Letters, there are no side letters or other contracts, arrangements or understandings (written or oral) that could (i) reduce the aggregate amount of the Financing, or (ii) impose new or additional conditions or otherwise expand, amend or modify any of the conditions to the receipt of the Financing or any other terms of the Financing in a manner that would reasonably be expected to (A) delay or prevent the Closing Date, (B) make the timely funding of the Financing, or the satisfaction of the conditions to obtain the Financing, less likely to occur or (C) materially adversely impact the ability of Buyer to enforce its rights and remedies against the other parties to the applicable Financing Letter. Assuming the accuracy of the representations and warranties set forth in Article III and the satisfaction of the conditions set forth in Section 6.1 and Section 6.2, as of the date hereof, no event has occurred or circumstance exists which, with or without notice, lapse of time or both, would or would reasonably be expected to constitute a default or breach under the Financing Letters by Buyer or, to the Knowledge of Buyer, any other party to any Financing Letter. Buyer has fully paid, or caused to be fully paid, any and all commitment or other fees which are due and payable on or prior to the date hereof pursuant to the terms of the Financing Letters and any related Fee Letter. For purposes of this Section 4.5(c), the term Debt Financing shall not include the incremental revolving credit facility contemplated by the Debt Commitment Letter.

(d)               Buyer acknowledges and agrees that, notwithstanding anything to the contrary in this Agreement, the consummation of the Financing shall not be a condition to the obligation of Buyer to consummate the Contemplated Transactions.

Section 4.6            No Broker’s or Finder’s Fees.

No agent, broker, or finder acting on behalf of Buyer or any of its Affiliates is or will be entitled to any broker’s or finder’s fee or any other commission or fee in connection with the performance of its obligations under the Transaction Agreements.

Section 4.7            Investment Representations.

Buyer is acquiring the Interests for Buyer’s own account and not with a view to any resale or distribution within the meaning of Section 2(11) of the Securities Act. Buyer is (a) knowledgeable, sophisticated and experienced in business and financial matters and fully understands the limitations on transfer described above, (b) an “accredited investor” as such term is defined in Rule 501(a) of Regulation D under the Securities Act, and (c) capable of bearing the economic risks of acquiring the Interests. Buyer understands that the Interests to be acquired by Buyer hereunder have not been registered under the Securities Act on the basis that the sale provided for in this Agreement is exempt from the registration provisions thereof. Buyer acknowledges that such securities may not be transferred or sold except pursuant to the registration and other provisions of applicable securities laws or pursuant to an applicable exemption therefrom.

Section 4.8            No Other Representations and Warranties.

Buyer acknowledges that, except for the representations and warranties contained in Article III hereof or set forth in any of the other Transaction Agreements, neither Seller nor any other Person has made any representation or warranty, expressed or implied, regarding Seller Group, the Company, GIPOP or the Business.

Section 4.9            FERC Regulations.

Buyer is not subject to regulation as: (a) a “holding company” as that term is defined in PUHCA, or (b) a “public utility,” “electric utility,” “electric corporation,” or similar entity under the laws of any state. Buyer is subject to regulation as a “public utility” as that term is defined in the FPA.

ARTICLE V
COVENANTS PRIOR TO CLOSING

Section 5.1            Conduct of Business.

(a)               Except as (i) set forth on Schedule 5.1(a), (ii) otherwise expressly required or permitted by this Agreement or the Restructuring Agreement, (iii) required by any Law or Governmental Order applicable to Seller Group, the Company or their Affiliates, (iv) consented to in writing by Buyer (which consent shall not be unreasonably withheld, conditioned or delayed) or (v) consistent with Section 8.1, during the Pre-Closing Period, Seller Parent and Seller shall, and shall cause the Company and the rest of the Seller Group to, (x) use commercially reasonable efforts to conduct the Business in the Ordinary Course of Business and (y) use commercially reasonable efforts to preserve, in all material respects, the current operations, organization and goodwill of the Business and its current relationships with customers, suppliers and key employees (including the making of capital expenditures with respect to the Business substantially consistent with the Seller Parent’s current capital budget and not inconsistent with Schedule 5.1(xxi)); provided, however, that (1) no action or inaction by any member of Seller Group or the Company with respect to any matters specifically addressed by any clause of Section 5.1(a) shall be deemed a breach of this Section 5.1(a) unless such action or inaction would constitute a breach of such clause of Section 5.1(a) and (2) Buyer’s consent with respect to any action or matter pursuant to Section 5.1(a) shall be deemed to constitute consent for purposes of this Section 5.1(a).

(b)               Without limiting the generality of the foregoing and except as (i) expressly required or permitted by this Agreement or the Restructuring Agreement, (ii) as set forth on Schedule 5.1(b), (iii) required by any Law or Governmental Order applicable to any member of Seller Group or the Company or any of their Affiliates or (iv) consented to in writing by Buyer (which consent shall not be unreasonably withheld, conditioned or delayed), during the Pre-Closing Period, Seller Parent and Seller shall not, and shall cause the Company and the rest of the Seller Group not to, take any of the following actions in relation to the Company, its Subsidiaries or the Business:

(c)               Nothing contained in this Agreement shall give to Buyer, directly or indirectly, rights to control or direct the operations of the Business prior to the Closing Date. Prior to the Closing Date, Seller Group and the Company shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision of the Business.

Section 5.2            No Solicitation by Seller Group; Board Recommendation.

(a)               Seller Parent shall not, and shall cause the other members of Seller Group and any of its and their respective Representatives not to, (i) directly or indirectly solicit, initiate or knowingly encourage, induce or facilitate (including by way of furnishing nonpublic information), any Competing Proposal or any inquiry or proposal that would reasonably be expected to lead to a Competing Proposal, in each case, except for this Agreement and the Contemplated Transactions, (ii) directly or indirectly engage in, continue or otherwise participate in any discussions or negotiations with any Person (except for Buyer, Buyer’s Affiliates and its and their respective Representatives) regarding, or furnish to any such Person, any nonpublic information with respect to, or afford access to properties, books or records to any Person in connection with or for the purpose of soliciting or knowingly encouraging or facilitating, or cooperate in any way with any such Person with respect to, any Competing Proposal or any inquiry, proposal or offer, or the making, submission or announcement of any inquiry, proposal or offer (including any inquiry, proposal or offer to its shareholders) that constitutes or would reasonably be expected to lead to a Competing Proposal, or (iii) grant any waiver or release under or knowingly fail to enforce any confidentiality, standstill or similar agreement in respect of a proposed Competing Proposal, unless the Board concludes in good faith (after consultation with outside legal counsel) that a failure to take any action described in this clause (iii) would be inconsistent with the Board’s fiduciary duties to Seller Parent’s stockholders under applicable Law. Seller Parent shall, and shall cause the other members of Seller Group and any of its and their respective Representatives to, immediately cease and cause to be terminated all existing discussions or negotiations with any Person (except for Buyer, Buyer’s Affiliates and its and their respective Representatives) conducted heretofore with respect to any Competing Proposal, request the prompt return or destruction of all confidential information previously furnished and immediately terminate all physical and electronic data room access previously granted to any such Person or its Representatives. Without limiting the generality of the foregoing, Seller Parent acknowledges and agrees that, in the event any Representative of Seller Group takes any action at Seller Parent’s direction or with Seller Parent’s knowing encouragement that if taken by Seller Parent would be a breach of this Section 5.2(a), the taking of such action by such Representative shall be deemed to constitute a breach of this Section 5.2(a) by Seller Parent. In furtherance of its obligations hereunder, to the extent that any of the members of Seller Group has knowledge that any Representative of Seller Group has taken an action that, if taken by Seller Parent, would violate the restrictions set forth in this Section 5.2(a), then such member of Seller Group shall promptly instruct such Representative to cease such action. Notwithstanding anything to the contrary herein, at any time prior to obtaining the Stockholder Approval (but not after), in response to the receipt of a written Competing Proposal made after the date of this Agreement that does not result from a material breach of this Section 5.2(a) by Seller Group (or a Representative of Seller Group) that the Board determines in good faith (after consultation with outside legal counsel and its financial advisor) constitutes or would reasonably be expected to lead to a Superior Proposal, then Seller Group and its Representatives may (1) furnish information with respect to Seller Group to the Person making such Competing Proposal (and its Representatives) pursuant to a confidentiality agreement that contains customary provisions (including nondisclosure provisions, use restrictions and non-solicitation provisions) at least as favorable in the aggregate to Seller Group as the provisions of the Confidentiality Agreement as in effect immediately prior to the execution of this Agreement and which does not contain any provision that would not allow Seller Group to comply with its obligations pursuant to this Agreement (provided that Seller Group furnishes any nonpublic information furnished to such Person to Buyer (to the extent such information has not been previously furnished by Seller Group to Buyer) as promptly as practicable after, and in any event within one Business Day after, it is provided or made available to such Person) and (2) participate in discussions regarding the terms of such Competing Proposal, including terms of a definitive agreement with respect thereto, and the negotiation of such terms with the Person making such Competing Proposal (and such Person’s Representatives).

(b)               Except as set forth in Section 5.2(c) and except for the public disclosure of a Recommendation Change Notice, neither the Board nor any committee thereof shall (i) withdraw, change, qualify, withhold or modify in any manner adverse to Buyer, or propose publicly to withdraw, change, qualify, withhold or modify in any manner adverse to Buyer, the approval of this Agreement or the Board Recommendation, (ii) adopt, approve, endorse or recommend, or resolve to or publicly propose or announce its intention to adopt, approve, endorse or recommend, any Competing Proposal, (iii) fail to include the Board Recommendation in the Proxy Statement or (iv) take any formal action or make any recommendation or public statement in connection with a tender offer or exchange offer (except for a recommendation against such offer or a customary “stop, look and listen” communication of the type contemplated by Rule 14d-9(f) under the Exchange Act) (any action in the foregoing clauses (i)–(iv) being referred to as a “Adverse Recommendation Change”). Except as set forth in Section 5.2(c) and the execution of a confidentiality agreement consistent with Section 5.2(a), neither the Board nor any committee thereof shall authorize, permit, approve or recommend, or propose publicly to authorize, permit, approve or recommend, or allow Seller Parent or any of its Affiliates to execute or enter into, any letter of intent, memorandum of understanding, agreement in principle, agreement or commitment constituting, or that would reasonably be expected to lead to, any Superior Proposal (an “Alternative Acquisition Agreement”).

(c)               Notwithstanding anything to the contrary herein, at any time prior to obtaining the Stockholder Approval, the Board may make an Adverse Recommendation Change or cause the Seller to terminate this Agreement pursuant to Section 7.1(h) if (i) an Intervening Event has occurred or (ii) Seller Parent has received a Competing Proposal that does not result from a material breach of Section 5.2 by Seller Group (or a Representative of Seller Group) and, in each case, the Board determines in good faith (after consultation with outside legal counsel and a financial advisor) that (x) in the case of clause (ii), such Competing Proposal is a Superior Proposal and (y) the failure to effect a Adverse Recommendation Change or cause the Seller to terminate this Agreement pursuant to Section 7.1(h) as a result of the occurrence of such Intervening Event or in response to the receipt of such Superior Proposal, as the case may be, would be inconsistent with the Board’s fiduciary duties under applicable Law; provided, however, that, prior to making such Adverse Recommendation Change or cause the Seller to terminate this Agreement pursuant to Section 7.1(h): (1) the Board provides prior written notice to Buyer (a “Recommendation Change Notice”) that it intends to effect a Adverse Recommendation Change at least four Business Days prior to taking such action, which notice shall specify the basis for such Adverse Recommendation Change and, in the case of a Superior Proposal, include a summary of the material terms and conditions of such Superior Proposal, identifies the Person making such Superior Proposal and, if applicable, provide a copy of the proposed Alternative Acquisition Agreement (it being understood that such Recommendation Change Notice shall not in itself be deemed an Adverse Recommendation Change and that if Buyer has committed in writing to any changes to the terms of this Agreement and there has been any subsequent material revision or amendment to the terms of a Superior Proposal, a new notice to which the provisions of clauses (2) and (3) of this Section 5.2(c) shall apply mutatis mutandis except that, in the case of such a new notice, all references to four Business Days in this Section 5.2(c) shall be deemed to be three Business Days), (2) after giving such notice and prior to effecting such Adverse Recommendation Change or cause the Seller to terminate this Agreement pursuant to Section 7.1(h), Seller negotiates (and causes its Representatives to negotiate) in good faith with Buyer (to the extent Buyer wishes to negotiate), to make such adjustments or revisions to the terms and conditions of this Agreement such that the Competing Proposal would no longer constitute a Superior Proposal, and (3) at the end of the four Business Day period, prior to taking action to effect a Adverse Recommendation Change or cause the Seller to terminate this Agreement pursuant to Section 7.1(h), the Board takes into account any adjustments or revisions to the terms of this Agreement committed to by Buyer in writing, and determines in good faith, after consultation with its financial advisors and outside legal counsel, that (x) the Competing Proposal remains a Superior Proposal and (y) the failure to take such action would be inconsistent with its fiduciary obligations under applicable Law.

(d)               Seller shall promptly (and in any event no later than 24 hours) advise Buyer of any Competing Proposal, the material terms and conditions of any such Competing Proposal and the identity of the Person making any such Competing Proposal and, if applicable, provide Buyer with an executed copy of any confidentiality agreement entered into in connection with such Competing Proposal. Seller shall keep Buyer reasonably informed in all material respects on a reasonably current basis (and in any event no later than 24 hours) of the material terms and status (including any change to the terms thereof) of any Competing Proposal. Seller shall provide to Buyer as promptly as practicable after receipt or delivery thereof (and in any event within 24 hours of receipt or delivery) copies of all material documentation comprising such Competing Proposal or other documentation that is material to understanding such Competing Proposal received by Seller or any member of Seller Group from the Person or group making a Competing Proposal (or such Person’s Representatives) and of all material documentation provided by Seller Group to the Person or group making a Competing Proposal (or such Person’s Representatives) that comprises any counterproposal or any other material substantive response by Seller (to the extent such counterproposal or substantive response is permitted under this Section 5.2) to the Person or group making such Competing Proposal. Seller Parent shall not, and shall cause Seller Group not to, enter into any confidentiality or other agreement with any Person subsequent to the date of this Agreement that prohibits Seller from providing such information to Buyer.

(e)               Nothing contained in this Section 5.2 shall prohibit any member of Seller Group from (i) complying with Rule 14d-9 and Rule 14e-2 promulgated under the Exchange Act or (ii) making any disclosure to the stockholders of Seller Parent if, in the good-faith judgment of the Board (after consultation with outside legal counsel) failure to so disclose would be inconsistent with its obligations under applicable Law; provided, however, that in no event under clause (i) or (ii) shall the Board make an Adverse Recommendation Change except in accordance with Section 5.2(c). For the avoidance of doubt, a factually accurate public statement that describes a member of Seller Group’s receipt of a Competing Proposal and the operation of this Agreement with respect thereto shall not be deemed an Adverse Recommendation Change.

(f)                For purposes of this Agreement:

Section 5.3            Preparation of the Proxy Statement; Stockholders Meeting.

(a)               As promptly as reasonably practicable following the date of this Agreement (and in any event, within 20 Business Days), unless the Board has made an Adverse Recommendation Change, Seller Parent shall prepare and cause to be filed with the SEC a proxy statement to be mailed to the stockholders of Seller Parent relating to the Stockholders Meeting (together with any amendments or supplements thereto, the “Proxy Statement”) in preliminary form. Buyer shall furnish all information concerning itself and its Affiliates to Seller Parent, and provide such other assistance, as may be reasonably requested by Seller Parent or its outside legal counsel in connection with the preparation, filing and distribution of the Proxy Statement.

(b)               Seller Parent agrees that (i) assuming the truth, accuracy and completeness of the information supplied to Seller Parent by Buyer for inclusion or incorporation by reference in the Proxy Statement, the Proxy Statement will not, at the date it is first mailed to Seller Parent’s stockholders or at the time of the Stockholders Meeting, 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 and (ii) assuming the truth, accuracy and completeness of the information supplied to Seller by Buyer for inclusion or incorporation by reference in the Proxy Statement, the Proxy Statement will comply as to form in all material respects with the requirements of the Exchange Act and the rules and regulations of the SEC promulgated thereunder. Buyer agrees that none of the information supplied or to be supplied by Buyer for inclusion or incorporation by reference in the Proxy Statement will, at the date it is first mailed to Seller Parent’s stockholders or at the time of the Stockholders Meeting, 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.

(c)               Seller Parent shall promptly notify Buyer after the receipt of any comments from the SEC with respect to, or any request from the SEC for amendments or supplements to, the Proxy Statement and shall provide Buyer with copies of all correspondence between it and its Affiliates and Representatives, on the one hand, and the SEC, on the other hand, with respect to the Proxy Statement. Unless, the Board has made an Adverse Recommendation Change, Seller Parent shall:

Notwithstanding anything to the contrary herein, unless the Board has made an Adverse Recommendation Change, prior to filing the Proxy Statement in preliminary form with the SEC, responding to any comment from the SEC with respect to, or any request from the SEC for amendments or supplements to, the Proxy Statement, or any amendments or supplements pursuant to Section 5.3(d) or Section 5.3(e), or mailing the Proxy Statement in definitive form to the stockholders of Seller Parent, Seller Parent shall (i) provide Buyer with a reasonable opportunity to review and comment on such document or response and (ii) consider in good faith any of Buyer’s comments thereon.

(d)               If, prior to the Stockholders Meeting, any event occurs with respect to Buyer or any Affiliate of Buyer, or any change occurs with respect to other information supplied by Buyer for inclusion in the Proxy Statement, that is required to be described in an amendment of, or a supplement to, the Proxy Statement, Buyer shall promptly notify Seller Parent of such event, and Buyer and Seller Parent shall cooperate in the prompt filing with the SEC of any necessary amendment or supplement to the Proxy Statement so that either such document would not include any misstatement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements made therein, in light of the circumstances under which they are made, not misleading, and, as required by Law, in disseminating the information contained in such amendment or supplement to Seller Parent’s stockholders. Nothing in this Section 5.3(d) shall limit the obligations of any party under Section 5.3(a).

(e)               If prior to the Stockholders Meeting, any event occurs with respect to Seller Group, or any change occurs with respect to other information supplied by Seller Group for inclusion in the Proxy Statement, that is required to be described in an amendment of, or a supplement to, the Proxy Statement, Seller Parent shall promptly notify Buyer of such event, and Seller Parent and Buyer shall cooperate in the prompt filing with the SEC of any necessary amendment or supplement to the Proxy Statement so that either such document would not include any misstatement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements made therein, in light of the circumstances under which they are made, not misleading and, as required by Law, in disseminating the information contained in such amendment or supplement to Seller Parent’s stockholders. Nothing in this Section 5.3(e) shall limit the obligations of any party under Section 5.3(a).

(f)                Unless the Board has made an Adverse Recommendation Change, Seller Parent shall, as soon as practicable after mailing of the definitive Proxy Statement to the shareholders of Seller Parent, duly convene and hold the Stockholders Meeting and, subject to Section 5.3(c), solicit the Stockholder Approval.

Section 5.4            Access to Information; Cooperation with Employees.

(a)               Upon reasonable notice, during the Pre-Closing Period, Seller shall, and shall cause the Company and the other members of the Seller Group to, give Buyer, its authorized Representatives and the Debt Financing Sources reasonable access to its offices and its books and records, in each case, exclusively related to the Business, as Buyer may reasonably request for the sole purpose of preparing for the transfer of the Business to Buyer; provided, however, that such access or furnishing of information shall be conducted at Buyer’s expense, during normal business hours, under the supervision of Seller’s personnel, in compliance with Seller’s safety rules and policies, including the Company’s IT Security Policy, and in such a manner that does not interfere with the normal operations of the Business and Buyer, its Representatives and any Debt Financing Sources shall schedule all such access and visits in advance through a designated officer of Seller. Notwithstanding anything to the contrary set forth in this Agreement during the Pre-Closing Period, (i) Buyer, its Representatives and any Debt Financing Sources shall not have access to (A) personnel records of any member of Seller Group relating to individual performance or evaluation records, medical histories, (B) information which, in Seller’s reasonable judgment, it or any of its Affiliates is under a contractual or legal obligation not to supply or (C) any other information which, in Seller’s opinion, is sensitive or the disclosure of which could subject any member of Seller Group or the Business to any material risk of Liability, including pursuant to any Antitrust Laws; provided that in the case of sub-clauses (B) and (C), Seller shall promptly notify the Buyer thereof, to the extent permitted under applicable Law, and use commercially reasonable efforts to seek alternative means to disclose such information as nearly as possible without adversely affecting such confidentiality obligations, attorney client privilege or applicable Law or otherwise in a manner that addresses such risks, (ii) no member of Seller Group shall be required to take any action which would constitute a waiver of the attorney client or other privilege or would compromise such Person’s confidential information not related to the Business, (iii) Buyer shall not, and shall cause its Representatives not to, contact any vendor, supplier or customer of the Business regarding the business, operations, or prospects of such Business or this Agreement or the Contemplated Transactions without the prior written consent of Seller Parent, and (iv) in no event shall Buyer be permitted to conduct any sampling or testing of environmental media (including any soil, sediment, groundwater, or surface water) or building material without the prior written consent of Seller Parent.

(b)               All information provided to or obtained by Buyer pursuant to Section 5.4(a) will be subject to the Confidentiality Agreement. Notwithstanding anything to the contrary contained in this Agreement or the Confidentiality Agreement, Buyer and its Representatives may disclose any information relating to the Business, the Company, any of its Subsidiaries, VES or the transactions contemplated by this Agreement to any Debt Financing Sources or rating agencies (in each case, without any obligation on the part of the Debt Financing Sources or rating agencies to comply with the terms of the Confidentiality Agreement) so long as, in the case of any Debt Financing Source, such Debt Financing Source is subject to confidentiality undertakings set forth in the Debt Commitment Letter or that are at least as restrictive as those applicable to the Debt Financing Sources under the Debt Commitment Letter or, in the case of any rating agency, such rating agency is subject to customary confidentiality undertakings with respect to dissemination of such information to such rating agency.

(c)               For a period of seven years following the Closing, upon reasonable written notice, Buyer shall furnish or cause to be furnished to Seller or its Representatives at Seller’s sole expense, reasonable access during normal business hours, to such information, books, records, documents, instruments, accounts and other files relating to the Business, and to Buyer’s employees and to make the same available for inspection and copying by Seller (at its expense) during normal business hours of Buyer or any of its Subsidiaries, as applicable, upon reasonable request and upon reasonable notice. Any investigation pursuant to this Section 5.4(c) shall be conducted in such manner so as not to interfere with the conduct of the business of Buyer. This Section 5.4(c) shall not apply with respect to Tax matters, which are the subject of Section 8.6.

Section 5.5            Efforts.

Subject to the terms and conditions set forth herein and to applicable legal requirements, each of the parties shall cooperate and use their respective reasonable best efforts to take, or cause to be taken, all appropriate action, and do, or cause to be done, and assist and cooperate with the other parties in doing, all things necessary, proper or advisable to consummate and make effective, in the most expeditious manner practicable, the Contemplated Transactions, including the satisfaction of the respective conditions set forth in Article VI.

Section 5.6            [Reserved].

Section 5.7            Guaranties.

(a)               Members of Seller Group have provided or secured certain guaranties, letters of credit, performance bonds, surety bonds, indemnities and similar obligations with respect to the Business, as set forth on Schedule 5.7 (each, an “Existing Guaranty”). On or as soon as reasonably practicable after the date hereof but prior to the Closing Date, Buyer shall cooperate with Seller to use commercially reasonable efforts to cause the release of Seller Group, its Affiliates, and any third party issuer of any Existing Guaranty, from each Existing Guaranty, as applicable, and the substitution of a similar obligation of Buyer, an Affiliate of Buyer or a third party as the guarantor, indemnitor or responsible party (each, a “Substitute Guaranty”) under each Existing Guaranty, which Substitute Guaranties will be effective as of the Closing Date; provided, however, that if any Existing Guaranty is not released prior to the Closing Date, Buyer shall use commercially reasonable efforts to cause the Existing Guaranty to be replaced by a Substitute Guaranty, or shall use commercially reasonable efforts to cause the Existing Guaranty to be released, cancelled or discharged, or otherwise use commercially reasonable efforts to cause any Liability of any member of Seller Group and any third party issuer under any Existing Guaranty to be released as promptly as practicable after the Closing Date, and in no event later than 30 days after the Closing Date. In the case of Existing Guaranties in the form of letters of credit, a Substitute Guaranty shall include the posting of cash collateral supporting such existing letter of credit until Buyer replaces such letter of credit.

(b)               Without limiting the foregoing, if any Existing Guaranty remains outstanding and not fully released as of the Closing Date, Buyer shall perform, pay and discharge all obligations under such Existing Guaranty within two Business Days after receipt of notice of any such obligation until such time as it is released (other than any payment which was due and fully payable in all respects under an Existing Guaranty prior to the Closing Date) and Buyer shall indemnify and hold harmless Seller Group, its Affiliates and any third party issuer of any Existing Guaranty with respect to all Damages arising out of or relating to any such Existing Guaranty, including any failure of Buyer to perform, pay and discharge all obligations under such Existing Guaranty, with respect to claims arising from the conduct of the Business after Closing. No member of Seller Group shall be under any obligation to extend or renew any Existing Guaranty that expires by its terms, nor to agree with any beneficiary of an Existing Guaranty to any amendment, waiver, or assignment thereof, in each case, other than in connection with the substitution thereof with a Substitute Guaranty after the Closing.

(c)               From and after the Closing, Buyer shall, and shall cause its Subsidiaries to, indemnify, defend and hold harmless, the Seller Group against any Damages incurred following the Closing in connection with any Existing Guaranty, to the extent not replaced by a Substitute Guaranty prior to the incurrence of any Damages.

Section 5.8            Consents.

(a)               During the Pre-Closing Period, each of Buyer and Seller shall use reasonable best efforts to give all notices to, and obtain all Consents from, all Persons required pursuant to any Material Contract, to the extent such Material Contract will be assigned to the Company pursuant to the Restructuring or will remain a Contract of the Company or any of its Subsidiaries after giving effect to the Restructuring; provided, however, that neither Buyer nor any member of Seller Group shall have any obligation to (i) amend or modify any Contract, (ii) pay any consideration or give anything of value to any Person for the purpose of obtaining any such Consent or (iii) pay any costs and expenses of any third-party resulting from the process of obtaining such Consent. If such Consent is not obtained prior to the Closing, then, until the earlier of such time such Consent is obtained or 12 months after the Closing Date, Seller shall, and shall cause any other applicable member of the Seller Group to, cooperate with Buyer in any arrangement reasonably acceptable to Buyer and Seller intended to (i) provide Buyer, to the fullest extent reasonably practicable, the economic and other claims, rights and benefits of any such Material Contract and (ii) cause Buyer to bear all costs and Liabilities thereunder from and after the Closing Date in accordance with this Agreement.

(b)               Buyer acknowledges that certain Consents and waivers with respect to the Contemplated Transactions may be required from parties to the Material Contracts and that such Consents and waivers may not be obtained prior to Closing and that receipt of any such Consent shall in no event be a condition to the consummation of the Contemplated Transactions. Except to the extent expressly provided in the Transaction Agreements, Seller shall not have any liability whatsoever to Buyer arising out of or relating to the failure to obtain any such Consents or the termination of any such Contract as a result of the Contemplated Transactions.

Section 5.9            Governmental Approvals.

(a)               Subject to the other terms and conditions of this Section 5.9, during the Pre-Closing Period, each of Buyer and Seller shall use their respective reasonable best efforts to (i) obtain, or cause to be obtained, the Consents of the Governmental Authorities set forth on Schedule 5.9(a), including to cause the waiting periods under the HSR Act to terminate or expire at the earliest possible date after filing, (ii) respond promptly to any requests for information, including any second request, made by any Governmental Authority, including the FTC or the DOJ, (iii) cooperate fully with the other party in promptly seeking to obtain all such Consents, and (iv) not take any action that would reasonably be expected to have the effect of delaying, impairing or impeding the receipt of any such Consents. Buyer and Seller shall, as promptly as practicable and, in no event, later than ten Business Days after the date hereof, prepare and file (A) required Notification and Report Forms under the HSR Act with the FTC and the DOJ (which filing shall specifically request early termination of the waiting period prescribed by the HSR Act) and (B) notifications, filings, registrations, submissions or other materials required or necessary to obtain the other Consents of Governmental Authorities set forth on Schedule 5.9(a). All filings made in connection with the foregoing sentence shall be made in substantial compliance with the requirements of applicable Law, including Antitrust Laws. All filing fees payable in connection with the notifications, filings, registrations, submissions or other materials contemplated by this Section 5.9(a) shall be borne 50% by Buyer and 50% by Seller.

(b)               Seller and Buyer shall cooperate to draft and file with FERC no later than 15 Business Days after the date of this Agreement an application seeking FERC Approval and a petition for any necessary FERC Waiver. The parties shall use all commercially reasonable efforts, diligently take all necessary and proper actions and provide any additional information requested by FERC and other regulatory agencies in connection with any required approvals and waivers and shall file such additional information that may be required by FERC in connection with the application for authorization under FPA Section 203 and petition for any necessary waiver of FERC’s Capacity Release Regulations. All filing fees, if any, payable in connection with the notifications, filings, registrations, submissions or other materials contemplated by this Section 5.9(b) shall be borne 50% by Buyer and 50% by Seller.

(c)               To the extent not prohibited by applicable Law, each of Buyer and Seller shall (i) promptly notify and furnish the other party copies of any correspondence or communication (including, in the case of any oral correspondence or communication, a summary thereof) between it or any of their respective Representatives, on the one hand, and any Governmental Authority, on the other hand, or any filing such party submits to any Governmental Authority, (ii) consult with and permit the other party to review in advance any proposed filing and any written or oral communication or correspondence by such party to any Governmental Authority, and (iii) consider in good faith the views of such other party in connection with any proposed filing and any written or oral communication or correspondence to any Governmental Authority, in each case, to the extent relating to the subject matter of this Section 5.9 or the Contemplated Transactions. Neither Buyer nor Seller shall agree to, or permit any of its Representatives to, participate in any meeting or discussion with any Governmental Authority in respect of any filings, investigation, inquiry or any other matter contemplated by this Section 5.9 or any Contemplated Transactions unless it consults with the other party in advance and, to the extent permitted by such Governmental Authority, gives the other party the opportunity to attend and participate in such meeting or discussion.

(d)               Notwithstanding anything in this Agreement to the contrary including Buyer’s undertaking pursuant to Section 5.5, Buyer shall not be required to take or cause to be taken, any of the following actions to the extent such action or actions would reasonably be expected, individually or in the aggregate, to be adverse to Buyer, the Company or their Subsidiaries in a magnitude that would be material to the Business, taken as a whole:

(e)               In addition, notwithstanding anything in this Agreement to the contrary including Buyer’s undertaking pursuant to Section 5.5, Buyer shall not be required to take or cause to be taken, any action related to defending through litigation any claim asserted in court by any party in order to avoid entry of, or to have vacated or terminated, any decree, order or judgment (whether temporary, preliminary or permanent) that would prevent the Closing.

(f)                During the period from the date of this Agreement and continuing until the earlier of the termination of this Agreement or the Closing, except as required by this Agreement, Buyer and its Affiliates shall not engage in any action or enter into any transaction or permit any action to be taken or transaction to be entered into, that would materially impair or materially delay Buyer’s ability to consummate the Contemplated Transactions or perform its obligations hereunder. Without limiting the generality of the foregoing, none of Buyer, the Subsidiaries of Buyer or their respective Affiliates shall acquire (whether by merger, consolidation, stock or asset purchase or otherwise), or agree to so acquire, any amounts of assets of or any equity in any other Person or any business or division thereof, unless that acquisition or agreement would not reasonably be expected to (i) increase the risk of not obtaining any authorizations, Consents, orders, declarations or approvals of any Governmental Authority necessary to consummate the transactions contemplated by this Agreement or the expiration or termination of any waiting period under the HSR Act, or (ii) increase the risk of any Governmental Authority entering an order prohibiting the consummation of the transactions contemplated by this Agreement, or increase the risk of not being able to remove any such order on appeal or otherwise.

Section 5.10        Restructuring.

Seller shall cause the Seller Group to, as promptly as practicable, carry out, prior to the Closing Date, the Restructuring in accordance with the Restructuring Agreement. Seller shall cause the Seller Group to take all actions reasonably necessary, proper or advisable to consummate the transactions contemplated by the Restructuring at or prior to the times set forth therein. Seller shall keep Buyer reasonably apprised with respect to the status of all material matters and activity relating to or concerning the status of the Restructuring and the transactions contemplated thereby and shall consult with Buyer on a regular basis, allow Buyer the opportunity to review and approve Business Transfer Documents (as defined in the Restructuring Agreement), such approval not to be unreasonably withheld, conditioned or delayed, and cooperate in good faith in connection with Buyer’s reasonable requests for information related to the Restructuring.

Section 5.11        Financing.

(a)               Subject to the terms and conditions of this Agreement, Buyer shall use its reasonable best efforts to obtain the Financing on the terms and conditions described in the Financing Letters and any related Fee Letter (including any “market flex” provisions contained in any related Fee Letter). Buyer will not 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, or would reasonably be expected to, (i) reduce the aggregate amount of the Equity Financing or (ii) impose new or additional conditions or otherwise expand, amend or modify any of the conditions to the receipt of the Equity Financing or any other terms of the Equity Financing in a manner that would reasonably be expected to (A) delay or prevent the Closing Date, (B) make the timely funding of the Equity Financing, or the satisfaction of the conditions to obtain the Equity Financing, less likely to occur or (C) materially adversely impact the ability of Buyer or Seller, as applicable, to enforce their rights and remedies against the other parties to the Equity Commitment Letter. Buyer shall promptly deliver to Seller true and complete copies of any amendment, modification or waiver to or under the Equity Commitment Letter entered into in accordance with this Section 5.11. Prior to Closing, Buyer shall not permit any amendment, modification or supplement to be made to, or any waiver of any provision or remedy under, the Debt Commitment Letter or any related Fee Letter (other than (x) a waiver of any closing conditions to the funding of the Debt Financing by the Debt Financing Sources or their agents or (y) to add additional financing sources, arrangers, bookrunners, syndication agents, documentation agents or other agents, managers, co-managers or similar entities that have not executed the Debt Commitment Letter as of the date hereof) if such amendment, modification, supplement or waiver (i) reduces the aggregate amount of the Debt Financing (including by changing the amount of fees to be paid or original issue discount, except as set forth in the “market flex” provisions of the Fee Letters) to an amount that, when taken together with the aggregate amount of the Equity Financing then in effect, Buyer’s cash on hand and amounts available to be drawn under Buyer’s revolving credit facility, would be insufficient for Buyer to (A) pay an amount in cash equal to the Purchase Price pursuant to Section 2.3 and (B) pay any and all fees and expenses required to be paid by Buyer in connection with the Contemplated Transactions and the Financing or (ii) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the receipt of the Debt Financing or other terms of the Debt Financing in a manner that would reasonably be expected to (A) prevent or delay the Closing, (B) make the timely funding of the Debt Financing or satisfaction of the conditions to obtaining the Debt Financing less likely to occur or (C) materially adversely impact Buyer’s ability to enforce its rights against the other parties to the Debt Commitment Letter or the definitive agreements related to the Debt Financing (such other terms that satisfy the foregoing requirements are referred to as “Permitted Other Terms”); provided that Buyer shall have the right to substitute other debt financing (or additional equity financing on the same terms as the Equity Financing (as it may be amended, modified, supplemented or waived in accordance with the terms of this Agreement) so long as Buyer delivers commitment letters to Seller with respect to such additional equity financing) for all or any portion of the Debt Financing contemplated by the Debt Commitment Letter from the same and/or alternative financing sources; provided further that such substitution shall not (1) reduce the aggregate amount of the Debt Financing (including by changing the amount of fees to be paid or original issue discount (except as set forth in any applicable “market flex” provisions)) to an amount that, when taken together with the aggregate amount of the Equity Financing then in effect, Buyer’s cash on hand and amounts available to be drawn under Buyer’s revolving credit facility, would be insufficient for Buyer to (A) pay an amount in cash equal to the Purchase Price pursuant to Section 2.3 and (B) pay any and all fees and expenses required to be paid by Buyer in connection with the Contemplated Transactions and the Financing or (2) impose new or additional conditions or contingencies in a manner that would reasonably be expected to (A) delay or prevent the Closing or (B) make the timely funding of the Debt Financing or satisfaction of the conditions to obtaining the Debt Financing less likely to occur. Any reference in this Agreement to (x) “Financing”, “Equity Financing” and “Debt Financing” shall include the financing contemplated by the Financing Letters as amended, modified, supplemented, waived, replaced or substituted in compliance with this Section 5.11 and (y) “Financing Letters”, “Equity Commitment Letter”, “Fee Letter” and “Debt Commitment Letter” shall include such documents as amended, modified, supplemented, waived, replaced or substituted in compliance with this Section 5.11.

(b)               Buyer shall use its reasonable best efforts (i) except as otherwise expressly permitted by this Section 5.11, to maintain in effect the Financing Letters in accordance with the terms and subject to the conditions thereof, (ii) to negotiate and, no later than the Closing Date, enter into definitive agreements with respect to the Debt Financing contemplated by the Debt Commitment Letter on the terms and conditions set forth in the Debt Commitment Letter and any related Fee Letter (including the “market flex” provisions contained in any related Fee Letter) or, if available, on other terms that are acceptable to Buyer and that are Permitted Other Terms, (iii) to satisfy on a timely basis all conditions to the funding of the Debt Financing set forth in such definitive agreements that are applicable to Buyer and within its control in accordance with the terms and conditions thereof, (iv) to consummate the Debt Financing at or prior to the Closing if the conditions to the availability of the Debt Financing set forth in the Debt Commitment Letter and the definitive agreements with respect thereto have been satisfied, (v) to comply with its obligations under the Financing Letters and any related Fee Letter that are within its control in accordance with the terms and conditions thereof, and (vi) upon satisfaction of all conditions herein to Buyer’s obligations to effect the Closing and satisfaction of all conditions to the funding of the Debt Financing set forth in the Debt Commitment Letter and the definitive agreements with respect thereto, to enforce its rights under the Financing Letters (other than through litigation), subject to the terms and conditions of the Financing Letters and the definitive agreements with respect thereto, in the event of a breach or repudiation by any other party thereto that could reasonably be expected to materially impede or delay the Closing (after giving effect to the availability of any Alternate Financing, Buyer’s cash on hand and amounts available to be drawn under Buyer’s revolving credit facility). Buyer shall keep Seller reasonably informed on a reasonably current basis and in reasonable detail of the status of its efforts to arrange the Debt Financing. Without limiting the generality of the foregoing, Buyer shall give Seller prompt written notice (and in any event within three Business Days after it becomes aware thereof) (A) of any material breach or default (or any event or circumstance that, with or without notice, lapse of time or both, could reasonably be expected to give rise to any material breach or default) by any party to any Financing Letters, Fee Letter or any other definitive document related to the Financing of which Buyer becomes aware, in each case, that could impact the funding or closing of the Financing, (B) of the receipt by Buyer of any written notice or other communication from any Financing source with respect to (1) any material breach or default, termination or repudiation by any party to any Financing Letters, any Fee Letter or any other definitive document related to the Financing of any provisions of the Financing Letters, Fee Letter or any other definitive document related to the Financing or (2) any material dispute or disagreement between or among any parties to any Financing Letters, any Fee Letter or any other definitive document related to the Financing, in each case, that could impact the funding or closing of the Financing, and (C) if for any reason Buyer believes in good faith that there is a reasonable possibility that it will not be able to obtain on a timely basis all or any portion of the Financing on the terms, in the manner or from the sources contemplated by the Financing Letters or the definitive documents related to the Financing in any manner which impairs, delays or prevents the consummation of the transactions contemplated by this Agreement. As soon as reasonably practicable, but in any event within three Business Days of the date Seller delivers Buyer a written request, Buyer shall provide any information reasonably requested by Seller of which Buyer is aware relating to any circumstance referred to in clause (A), (B) or (C) of the immediately preceding sentence.

(c)               If the Debt Commitment Letter shall be terminated or if any portion of the Debt Financing necessary to consummate the transactions contemplated by this Agreement becomes unavailable on the terms and conditions contemplated in the Debt Commitment Letter (other than as a result of obtaining substitute debt or equity financing in accordance with Section 5.11(a)), Buyer shall promptly notify Seller and use its reasonable best efforts to arrange as promptly as practicable following the occurrence of such event to obtain alternative financing from the same or alternative sources on terms and conditions no materially less favorable to Buyer and Seller than those set forth in the Debt Commitment Letter and the related Fee Letters, in an amount at least equal to the Debt Financing or such unavailable portion thereof, as the case may be, less other sources of cash available to Buyer, on terms and conditions that would not be reasonably be expected to (i) delay or prevent the Closing or (ii) make the timely funding of the Debt Financing or satisfaction of the conditions to obtaining the Debt Financing less likely to occur (the “Alternate Financing”), and to obtain a new financing commitment letter with respect to such Alternate Financing (the “New Commitment Letter”), which shall replace or supplement the existing Debt Commitment Letter, a true and complete copy of which (together with any related fee or other letter, which may be redacted as to fee amounts, “market flex” provisions and other customary commercial terms) shall be promptly provided to Seller. In the event any New Commitment Letter is obtained, (A) any reference in this Agreement to the “Debt Financing” shall be deemed to mean the debt financing contemplated by the Debt Commitment Letter as modified or supplemented pursuant to clause (B) below, (B) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter that is not superseded by a New Commitment Letter at the time in question and any New Commitment Letter to the extent then in effect, and (C) any reference in this Agreement to “Fee Letter” shall be deemed to include any fee or other letter relating to the Debt Commitment Letter that is not superseded by a New Commitment Letter at the time in question and any fee or other letter relating to any New Commitment Letter to the extent then in effect.

(d)               Buyer agrees not to incur “Indebtedness” in reliance on the “Incremental Cap” (as each such term is defined in the Existing Credit Agreement (as such term is defined in the Debt Commitment Letter)) on or after the date hereof and on or prior to the Closing Date (other than, for the avoidance of doubt, the incurrence of the Debt Financing on the Closing Date) in a manner that would reasonably be expected to (i) prevent or materially delay the Closing or (ii) make the timely funding of the Debt Financing or satisfaction of the conditions to obtaining the Debt Financing materially less likely to occur.

(e)               For purposes of this Section 5.11, the term Debt Financing shall exclude the incremental revolving facility contemplated by the Debt Commitment Letter.

Section 5.12        Financing Cooperation.

(a)               Prior to the Closing, Seller Parent, Seller and the Company shall, and each of Seller Parent, Seller and the Company shall cause the Subsidiaries of Seller Parent, the Company and VES to and shall use its reasonable best efforts to cause its Representatives (including members of senior management of the Business and legal and accounting advisors) to, provide such reasonable cooperation as is customary and reasonably requested by Buyer in connection with the arrangement and obtaining of the Debt Financing, including: (i) upon reasonable advance notice, participating in a reasonable number of lender meetings, presentations, due diligence sessions and sessions with rating agencies, (ii) furnishing Buyer and its Debt Financing Sources with the financial and other information regarding the Business, the Company, its Subsidiaries and VES that is required to be delivered pursuant to the Debt Commitment Letter, including the Required Information, (iii) assisting Buyer and its financing sources in the preparation of (A) customary confidential information memoranda and lender and investor presentations (including assistance with the preparation of “public” versions thereof) and similar documents customary in connection with the arrangement of the Debt Financing, in each case, with respect to information relating to the Business, the Company, its Subsidiaries and VES, and providing to the financing sources customary authorization and representation letters with respect to such memoranda, presentations and documents used in connection with the Debt Financing, limited in all respects to information relating to the Business, the Company, its Subsidiaries and VES, and (B) materials for rating agency presentations, and otherwise assisting Buyer in procuring a public corporate credit rating and a public corporate family rating in respect of the borrower under the Debt Financing and public ratings for any of the Debt Financing offered in connection therewith, (iv) facilitating customary due diligence, (v) using commercially reasonable efforts to obtain such consents, surveys and title insurance as reasonably requested by Buyer or its Debt Financing Sources in connection with the Debt Financing, (vi) cooperating with Buyer’s legal counsel in delivering legal opinions in connection with the Debt Financing, (vii) assisting in the preparation of the definitive agreements with respect to the Debt Financing, including credit agreements, intercreditor agreements, pledge and security documents and certificates and other documents relating thereto or required to be delivered thereunder, as reasonably requested by Buyer, and otherwise facilitating the granting or perfection of security interests to secure the Debt Financing, including delivery of certificates representing equity interests constituting collateral, intellectual property filings with respect to intellectual property constituting collateral and mortgages with respect to Owned Real Property constituting collateral and obtaining releases of existing Liens and guarantees, in each case, subject to Section 5.12(b), and (viii) furnishing Buyer and its financing sources promptly, and in any event at least three Business Days prior to the Closing Date, with all documentation and other information required by any Governmental Authority with respect to any Debt Financing under applicable “know your customer” and anti-money laundering rules and regulations, including the Uniting and Strengthening of America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act and the requirements of 31 C.F.R. §1010.230, in each case, to the extent that such documentation and information has been reasonably requested at least ten days prior to the Closing Date. Seller Parent hereby consents to the use of its and its Subsidiaries’ logos in connection with the Debt Financing; provided that such logos are used solely in a manner that is not intended to or reasonably likely to harm or disparage Seller Parent or any of its Affiliates or the reputation or goodwill of Seller Parent or any of its Affiliates. All non-public or otherwise confidential information regarding Seller Parent or its Affiliates obtained by Buyer or its Representatives pursuant to this Section 5.12 shall be kept confidential in accordance with the Confidentiality Agreement (as modified by Section 5.4(b)), including any joinder or other agreement entered into in connection therewith, and Section 5.4.

(b)               Notwithstanding anything herein to the contrary, (i) none of the Company, its Affiliates or any persons who are directors or managers of Seller Group or its Affiliates shall be required to pass resolutions or consents to approve or authorize the execution of the Debt Financing, other than resolutions or consents of directors or managers or members of the Company, its Subsidiaries and VES in their capacity as directors, managers or members of the Company, its Subsidiaries or VES immediately following the Closing and that do not become effective prior to the Closing, (ii) none of the Company, its Affiliates or any of their respective Representatives shall be required, other than customary authorization and representation letters as described in Section 5.12(a)(iii), to execute, deliver or enter into, or perform any definitive agreement, document or instrument with respect to the Debt Financing the effectiveness of which is not contingent on the occurrence of the Closing (for the avoidance of doubt, it being acknowledged by Buyer that the Seller Group is providing any authorization and representation letters to the financing sources in connection with the Debt Financing as an accommodation to assist Buyer, that Buyer is not relying, and will not rely, on any such authorization and representations letters executed or delivered by any member of the Seller Group, that the execution or delivery of any such authorization and representation letters by a member of the Seller Group shall not modify or expand the rights of or remedies available to Buyer hereunder, and that the execution or delivery of any such authorization and representation letters shall not modify or expand the representations and warranties of Seller set forth herein), (iii) other than in respect of customary authorization and representation letters as described in Section 5.12(a)(iii), no obligation of the Company, its Affiliates or any of their respective Representatives undertaken pursuant to the foregoing shall be effective until Closing, and (iv) none of the Company, its Affiliates or any of their respective Representatives shall be required to (A) pay any commitment or other similar fee in connection with the Debt Financing or incur any other cost or expense in connection with the Debt Financing prior to the Closing that is not reimbursed by Buyer, (B) take any actions to the extent such actions would interfere unreasonably with the ongoing business or operations of the Company and its Affiliates, (C) take any actions that would conflict with or violate the Company’s or its Affiliates’ organizational documents or any Laws, or that would reasonably be expected to result in a violation or breach of, or default under, any Contract to which any of them are a party or by which any of their assets are bound or (D) take any actions that would cause any representation or warranty in this Agreement to be breached or that would cause any closing condition set forth in Article VI to fail to be satisfied or that would otherwise cause a breach of this Agreement. Buyer shall, promptly upon written request by Seller or the Company, reimburse the Company for all reasonable and documented out-of-pocket costs and expenses incurred by the Company, its Affiliates or their respective Representatives in connection with the cooperation provided for in Section 5.12(a) and shall indemnify and hold harmless the Company, its Affiliates and their respective Representatives for and against any and all losses suffered or incurred by them in connection with the arrangement of the Debt Financing and any information utilized in connection therewith (other than written information provided by the Company, its Affiliates or their respective Representatives) and such obligations shall survive the termination of this Agreement.

Section 5.13        Title Insurance and Surveys.

Seller shall, and shall cause the Company and any applicable Subsidiary of the Company to, reasonably cooperate with Buyer, at the request and sole cost and expense of Buyer, in the event Buyer elects, or is required by a lender, to obtain (i) new owner’s (or lender’s) title insurance policies (or bring-downs of or endorsements to any of the existing title insurance policies, if available) from a nationally recognized title company selected by Buyer, dated as of a date reasonably proximate to the Closing Date, in amounts determined by Buyer or any lender, insuring the Company’s or the applicable Subsidiary’s (or lender’s) interest in and to any of the Owned Real Property, free and clear of any Liens other than Permitted Liens, and (ii) ALTA surveys of any Owned Real Property (or updates to existing ALTA surveys, if available) from one or more licensed surveyors selected by Buyer, sufficient to allow the title company to remove the “survey exception” from each of the title policies referenced in clause (i) above, dated as of a date reasonably proximate to the Closing Date and certified to the Company or the applicable Subsidiary, any lender, and the title company. Each of Seller Parent and Seller agrees that any such cooperation will include commercially reasonable efforts on the part of Seller Parent and Seller to cause the removal or discharge of any Liens other than Permitted Liens, delivery by the Company or the applicable Subsidiary of any reasonable and customary affidavits required by the title company, and the granting of access to the applicable Owned Real Property by the above-referenced surveyor(s). Buyer shall be solely responsible for the cost and expense of the title policies, the surveys and any related item under this Section 5.13.

Section 5.14        Affiliate Transactions.

Seller Group shall cause all Contracts, arrangements, commitments listed on Schedule 3.23 or any Contracts entered into after the date hereof that would be listed on Schedule 3.23 if entered into as of the date hereof, other than the Contracts set forth on Schedule 5.14, the Transition Services Agreement, the Pulp Supply Agreement, or any other Transaction Agreement, to be settled and terminated (unless otherwise agreed that such Contract shall expressly survive in accordance with this Agreement) prior to the Closing without any further or continuing Liability on the part of the Company, Buyer or any of their respective Affiliates.

ARTICLE VI
CONDITIONS PRECEDENT TO THE CLOSING

Section 6.1            Conditions to Each Party’s Obligations.

The respective obligations of Seller and Buyer to consummate the Contemplated Transactions are subject to the fulfillment or satisfaction on and as of the Closing of each of the following conditions (any one or more of which may only be waived in whole or in part by both Buyer and Seller Parent (on behalf of Seller) at such party’s sole discretion):

(a)               Any applicable waiting period (and any extension thereof) under the HSR Act shall have expired or been terminated.

(b)               A Final Order constituting the FERC Approval shall have been issued.

(c)               No Governmental Authority shall have enacted, issued, promulgated, enforced or entered any Law or Governmental Order that is in effect (whether temporary, preliminary or permanent) and would (i) make the Closing illegal or (ii) otherwise prohibit or enjoin consummation of the Contemplated Transactions.

(d)               The Stockholder Approval shall have been obtained.

(e)               The Restructuring shall have been completed in all material respects in accordance with the terms set forth in the Restructuring Agreement.

Section 6.2            Conditions to the Obligations of Buyer.

The obligation of Buyer to consummate the Contemplated Transactions are subject to the fulfillment or satisfaction on and as of the Closing of each of the following conditions (any one or more of which may only be waived in whole or in part by Buyer at its sole discretion).

(a)               Accuracy of Representations and Warranties. (i) The representations and warranties of Seller Parent or Seller contained in Article III (other than the Seller Fundamental Representations) shall be true and correct (without giving regard to any materiality or “Material Adverse Effect” qualifications set forth therein) at and as of the Closing Date as though made as of the Closing Date (except for representations and warranties which address matters only as of a specific date, which representations and warranties shall continue as of the Closing Date to be so true and correct as of such specific date), except to the extent that the failure to be so true and correct would not reasonably be expected to have a Material Adverse Effect, individually or in the aggregate, and (ii)(A) the Seller Fundamental Representations (other than the Seller Fundamental Representations set forth in Section 3.6) shall be true and correct (without giving regard to any materiality or “Material Adverse Effect” qualifications set forth therein) in all material respects, at and as of the Closing Date as though made on the Closing Date (except to the extent such Seller Fundamental Representation relates to an earlier date, in which case such Seller Fundamental Representation shall be so true and correct in all material respects, on and as of such date), and (B) the Seller Fundamental Representations set forth in Section 3.6 shall be true and correct at and as of the Closing Date as though made on the Closing Date (except to the extent such Seller Fundamental Representation relates to an earlier date, in which case such Seller Fundamental Representation shall be so true and correct, on and as of such date).

(b)               Covenants. Seller Parent and Seller shall have performed or complied in all material respects with its agreements and covenants required to be performed or complied with pursuant to this Agreement as of or before the Closing Date.

(c)               Closing Deliverables. Seller shall have delivered to Buyer the items set forth in Section 2.4(a).

(d)               No Material Adverse Effect. Between the date of this Agreement and the Closing Date, there shall have been no circumstance, condition, event, development or change that would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.

Section 6.3            Conditions to the Obligations of Seller.

The obligation of Seller to consummate the Contemplated Transactions is subject to the fulfillment or satisfaction on and as of the Closing Date of each of the following conditions (any one or more of which may only be waived in whole or in part by Seller at its sole discretion).

(a)               Accuracy of Representations and Warranties. (i) The representations and warranties of Buyer contained in Article IV (other than the Buyer Fundamental Representations) shall be true and correct (without giving regard to any materiality or “Material Adverse Effect” qualifications set forth therein) as of the Closing Date as though made as of the Closing Date (except for representations and warranties which address matters only as of a specific date, which representations and warranties shall continue as of the Closing Date to be so true and correct as of such specific date), except to the extent that the failure to be so true and correct would not reasonably be expected to have a material adverse effect on the ability of Buyer to consummate the Contemplated Transactions or fulfill its obligations hereunder, and (ii) the Buyer Fundamental Representations shall be true and correct in all material respects, at and as of the Closing Date as though made on the Closing Date (except to the extent such Buyer Fundamental Representation relates to an earlier date, in which case such Buyer Fundamental Representation shall be so true and correct in all material respects, on and as of such date).

(b)               Covenants. Buyer shall have performed or complied in all material respects with its agreements and covenants required to be performed or complied with pursuant to this Agreement as of or before the Closing Date.

(c)               Closing Deliverables. Buyer shall have delivered to Seller the items set forth in Section 2.4(b).

Section 6.4            Frustration of Closing Conditions.

Neither Seller nor Buyer may rely, either as a basis for not consummating the Contemplated Transactions or terminating this Agreement and abandoning such purchase and sale, on the failure of any condition set forth in Section 6.1, 6.2 or 6.3, as the case may be, to be satisfied if such failure was caused by such party’s breach in any material respect of any provision of this Agreement.

ARTICLE VII
TERMINATION OF AGREEMENT

Section 7.1            Termination.

At any time prior to the Closing, this Agreement may be terminated and the Contemplated Transactions abandoned as follows (and the party seeking to terminate this Agreement pursuant to this Section 7.1 (other than Section 7.1(a)) shall give written notice of such termination to the other party setting forth a brief description of the basis on which it is terminating this Agreement):

(a)               by the mutual written consent of both Buyer and Seller,

(b)               subject to Section 10.11, by either Buyer or Seller, if the Closing shall not have occurred on or before May 11, 2020 or such other date that the parties may agree upon in writing (the “Outside Date”); provided, however, that the right to terminate this Agreement pursuant to this Section 7.1(b) shall not be available to any such party, if a breach of this Agreement by such party (or, in the case of Seller, Seller Parent) has resulted in the failure of the Closing to occur before the Outside Date,

(c)               by either Buyer or Seller, if (i) there shall be any Law enacted, promulgated or issued by any Governmental Authority that makes consummation of the Closing illegal or otherwise prohibited (ii) any Governmental Authority shall have issued a Governmental Order permanently enjoining the Contemplated Transactions, and such Governmental Order shall have become final and non-appealable,

(d)               by either Buyer or Seller if the Stockholder Approval is not obtained at the Stockholders Meeting duly convened (unless such Stockholders Meeting has been adjourned, in which case at the final adjournment thereof),

(e)               by Buyer, if (i) there shall have been a material breach by Seller Parent or Seller of any representation, warranty, covenant or agreement contained herein that would result in the failure of any of the conditions set forth in Section 6.1 or Section 6.2 to be satisfied, (ii) Buyer is not then in breach of any material provision of this Agreement, and (iii) such breach by Seller Parent or Seller shall not have been cured on or prior to the 45^th Business Day after receipt by Seller of written notice of such breach from Buyer,

(f)                by Buyer, prior to receipt of Stockholder Approval, if the Board has made an Adverse Recommendation Change,

(g)               by Seller, if (i) there shall have been a material breach by Buyer of any representation, warranty, covenant or agreement contained herein that would result in the failure of any of the conditions set forth in Section 6.1 or Section 6.3 to be satisfied, (ii) Seller or Seller Parent is not then in breach of any material provision of this Agreement, and (iii) such breach by Buyer shall not have been cured on or prior to the 45^th Business Day after receipt by Buyer of written notice of such breach from Seller,

(h)               by Seller, prior to receipt of Stockholder Approval, in order to enter into Alternative Acquisition Agreement with respect to a Superior Proposal; provided that (i) Seller Parent has complied in all material respects with its obligations under Section 5.2 and (ii) Seller Parent prior to or concurrently with such termination pays to Buyer the Seller Termination Fee in accordance with Section 7.3(b) and the termination pursuant to this Section 7.1(h) shall not be effective and Seller shall not enter into any such Alternative Acquisition Agreement until Buyer is in receipt of the Seller Termination Fee, and

(i)                 by Seller, if (i) all conditions set forth in Section 6.1 and Section 6.3 have been satisfied (or are capable of being satisfied and would have been satisfied at the Closing were the Closing to occur on the date of such termination) and the Closing is required to occur in accordance with Section 2.2, (ii) Seller has confirmed in writing to Buyer that it intends to terminate this Agreement pursuant to this Section 7.1(i) and irrevocably confirming it is ready, willing and able to consummate the Contemplated Transactions and is prepared to satisfy the conditions set forth in Section 6.3 that cannot be satisfied until the Closing on such date, and (iii) Buyer has failed to consummate the Closing within five Business Days after Seller has delivered the written confirmation referenced in clause (ii) above to Buyer.

Section 7.2            Effect of Termination.

In the event of the termination of this Agreement in accordance with this Article VII:

(a)               this Agreement shall forthwith become null and void (except for this Section 7.2, the final sentence of Section 5.9(a), the penultimate and the final sentence of Section 5.12(a), the final sentence of Section 5.12(b), Section 7.3, Section 8.4, Section 8.5 and Article X, each of which shall survive such termination and remain valid and binding obligations of the parties in accordance with their terms), and

(b)               other than as set forth in Section 7.3, there shall be no Liability of any kind on the part of Buyer or Seller or any of Buyer’s or Seller’s former, current or future Affiliates, Representatives, officers, directors, direct or indirect general or limited partners, equityholders, stockholders, controlling Persons, managers or members; provided, however, that termination pursuant to this Article VII shall not relieve any of the parties from such Liability (i) pursuant to the Sections specified in Section 7.2(a) that survive termination or (ii) for any willful breach of this Agreement prior to such termination or for Fraud.

Section 7.3            Termination Fees.

(a)               In the event this Agreement is terminated pursuant to Section 7.1(i), then Buyer shall pay to Seller (or its designated Affiliates) a termination fee of $15,000,000 in cash (the “Buyer Termination Fee”) as liquidated damages in connection with any such termination, to be paid within seven Business Days of the date on which this Agreement is terminated. Such Buyer Termination Fee shall be paid by wire transfer of immediately available U.S. dollars to the applicable account or accounts designated in writing to Buyer by Seller.

(b)               In the event this Agreement is terminated pursuant to (i) Section 7.1(f) or (ii) Section 7.1(h), then Seller Parent shall pay to Buyer (or its designated Affiliates) a termination fee of $15,000,000 in cash (the “Seller Termination Fee”) as liquidated damages in connection with any such termination, to be paid within two Business Days of the date on which this Agreement is terminated. Such Seller Termination Fee shall be paid by wire transfer of immediately available U.S. dollars to the applicable account or accounts designated in writing to Seller Parent by Buyer.

(c)               (i) (x) In the event this Agreement is terminated pursuant to Section 7.1(b) (but only if Seller Termination Fee is not also payable under Section 7.3(b)), (y) Buyer terminates this Agreement pursuant to Section 7.1(e), or (z) either party terminates this Agreement pursuant to Section 7.1(d), (ii) a Competing Proposal shall have been publicly disclosed or privately made to the Board after the date hereof, and, in the case of any privately made proposals to the Board, not withdrawn, (x) in the case of a termination pursuant to Section 7.1(b) or Section 7.1(e), prior to the date of such termination, or (y) in the case of a termination pursuant to Section 7.1(d), prior to the date of the Stockholders Meeting, and (iii) within 12 months after the termination of this Agreement, Seller shall have entered into an Alternative Acquisition Agreement or consummated a Competing Proposal, then Seller Parent shall pay Seller Termination Fee to Buyer (to an account designated in writing by Buyer) within two Business Days after the date Seller consummates such transaction (provided that for purposes of this Section 7.3(c)(iii), the applicable percentage in the definition of Competing Proposal shall be “50.1%” rather than “20%”).

(d)               In the event this Agreement is terminated by either Seller or Buyer pursuant to Section 7.1(b) without the Stockholder Approval having been obtained or Section 7.1(d), then Seller Parent shall pay to Buyer (by wire transfer of immediately available funds promptly following delivery by Buyer to Seller of a written statement setting forth the amount of Buyer Expenses and reasonable documentation thereof), all reasonable out-of-pocket costs, fees and expenses incurred by Buyer in connection with this Agreement and the Contemplated Transactions (the “Buyer Expenses”); provided that Seller Parent shall not be obligated to pay Buyer Expenses in excess of $3,500,000; provided further that any payment of Buyer Expenses shall not affect Buyer’s right to receive any Seller Termination Fee otherwise due under Section 7.3 that becomes due and payable and all Buyer Expenses so paid shall reduce the amount of the Seller Termination Fee.

(e)               The parties acknowledge that the agreements contained in this Section 7.3 are an integral part of the transactions contemplated by this Agreement and that, without these agreements, the parties would not enter into this Agreement. Accordingly, if either party fails to promptly pay any amount due pursuant to Section 7.3(a), (b), (c) or (d), as applicable, the party failing to pay the applicable termination fee shall also pay any costs, fees and expenses incurred by such other party (including reasonable legal fees and expenses) in connection with a legal action to enforce this Agreement that results in a judgment for such amount against such party. Either party may pursue both a grant of specific performance in accordance with (and subject to the limitations set forth in) Section 10.11 and the payment of Seller Termination Fee or Buyer Termination Fee, as applicable, and the fees and expenses pursuant to this Section 7.3(e); provided that under no circumstances shall either party be permitted or entitled to receive both a grant of specific performance resulting in the Closing and of payment of Seller Termination Fee or Buyer Termination Fee, as applicable, or any such fees and expenses. Seller Termination Fee and Buyer Termination Fee shall be considered liquidated damages (and not a penalty) for any and all Damages suffered or incurred by Seller or Buyer or any other Person, as applicable, in connection with this Agreement, any other Transaction Agreement and the transactions contemplated hereby or thereby (and the abandonment or termination thereof) or any other matter forming the basis for such termination.

(f)                Without limiting the rights of Seller under Section 10.11 prior to the termination of this Agreement pursuant to Section 7.1, if this Agreement is terminated under circumstances in which Buyer is obligated to pay the Buyer Termination Fee under Section 7.3(a), except as otherwise contemplated by the provisos at the end of this sentence, upon payment of the Buyer Termination Fee, Buyer, its Affiliates and any of the Debt Financing Source Related Parties and their respective Affiliates and Representatives shall have no further liability with respect to this Agreement or the Contemplated Transactions, including the Financing, to Seller Group, and payment of the Buyer Termination Fee by Buyer shall be Seller Parent’s and Seller’s sole and exclusive remedy for any claims, losses, liabilities, damages, judgments, inquiries, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements, suffered or incurred by Seller Group or any other Person in connection with this Agreement, the Contemplated Transactions, including the Financing (and the termination thereof) or any matter forming the basis for such termination, and Seller Parent and Seller shall not have, and expressly waives and relinquishes, any other right, remedy or recourse (whether in contract or in tort or otherwise, or whether at law (including at common law or by statute) or in equity), including against any Debt Financing Source Related Party; provided that regardless of whether Buyer pays or is obligated to pay the Buyer Termination Fee, nothing in this Section 7.3(f) shall release Buyer from liability for Fraud; provided further that Seller may elect by written notice to Buyer within two Business Days of the date this Agreement is terminated under circumstances in which Buyer is obligated to pay the Buyer Termination Fee that Seller intends to pursue a claim against Buyer for willful breach by Buyer of this Agreement, in which case the Buyer Termination Fee shall not be so payable. If this Agreement is terminated under circumstances in which Seller Parent is obligated to pay the Seller Termination Fee under Section 7.3(b) or Section 7.3(c) except as otherwise contemplated by the proviso at the end of this sentence, upon payment of the Seller Termination Fee, Seller Parent and its Affiliates shall have no further liability with respect to this Agreement or the Contemplated Transactions to Buyer or any of its Affiliates or Representatives, and payment of the Seller Termination Fee shall be Buyer’s sole and exclusive remedy for any claims, losses, liabilities, damages, judgments, inquiries, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements, suffered or incurred by Buyer, Affiliates and any other Person in connection with this Agreement, the Contemplated Transactions (and the termination thereof) or any matter forming the basis for such termination, and Buyer shall not have, and each expressly waives and relinquishes, any other right, remedy or recourse (whether in contract or in tort or otherwise, or whether at law (including at common law or by statute) or in equity); provided that regardless of whether Seller Parent pays or is obligated to pay the Seller Termination Fee, nothing in this Section 7.3(f) shall release Seller Parent or Seller from liability for Fraud; provided further that Buyer may elect by written notice to Seller within two Business Days of the date this Agreement is terminated under circumstances in which Seller is obligated to pay the Seller Termination Fee to pursue a claim against Seller for willful breach by Seller of this Agreement, in which case the Seller Termination Fee shall not be so payable. The parties acknowledge and agree that in no event shall Seller Parent or Buyer, as applicable, be required to pay the Seller Termination Fee or the Buyer Termination Fee, as applicable, on more than one occasion.

ARTICLE VIII
OTHER COVENANTS AND AGREEMENTS

Section 8.1            Employee and Employee Benefits Matters.

(a)               Transfer of Business Employees. On or prior to the Closing, Seller shall, or shall cause its Affiliates, to take all necessary action to (i) transfer the employment of each Business Employee (other than an Inactive Business Employee) to the Company (or a Subsidiary thereof) and (ii) ensure that, effective as of the Closing Date, the Company and its Subsidiaries have no employees other than the Business Employees. No later than 10 Business Days prior to the Closing Date, Buyer shall, or shall cause one of its Affiliates to, make a written offer of employment or an offer to engage as an independent contractor the individual providing service primarily to the Business who is not employed in the U.S. by the Company or a Subsidiary thereof (the “Foreign Service Provider”). On or prior to the Closing, Seller shall, or shall cause its Affiliates, to assign to the Company and its Subsidiaries all restrictive covenant agreements in respect of any Business Employees and Former Employees.

(b)               Company-Sponsored Plans. With respect to participation by the Business Employees in the Plans that are listed on Schedule 8.1(b) (such plans, the “Seller-Sponsored Plans”), Seller shall either (i) cause to be established, in respect of the Company and its Subsidiaries, a stand-alone payroll and human resources information system (“HRIS”) as well as stand-alone Plans sponsored by the Company or its Subsidiaries (such plans, the “Company-Sponsored Plans”) that replicate the terms of the corresponding Seller-Sponsored Plans in all material respects, as such terms are in effect immediately prior to Closing, and cause the Business Employees (other than the Inactive Business Employees) to become, as of the Closing Date, covered exclusively by the Company’s payroll and HRIS and participants in the corresponding Company-Sponsored Plans, or (ii) in the event that such stand-alone payroll, HRIS or one or more Company-Sponsored Plans are not yet in effect as of the Closing, allow the Business Employees and any newly hired employees hired by the Company or its Subsidiaries after the Closing, who would otherwise be eligible under the Seller-Sponsored Plans (if employed prior to the Closing), to remain or become, as applicable, participants in the corresponding Seller-Sponsored Plans (and, if necessary to continue such Seller-Sponsored Plan participation, remain or become, as applicable, covered under the payroll and HRIS of Seller and its Affiliates) or to be provided with the benefits offered under the Seller-Sponsored Plans during a transition period commencing upon the Closing pursuant to the Transition Services Agreement (which shall provide that Buyer shall pay Seller for the cost of all such benefits and payments made to, with respect to, or incurred by the Business Employees (and any such newly hired employees) during such transition period) and ending not later than December 31, 2020. Not later than 30 days prior to the Closing, Seller shall provide Buyer with a list of all Company-Sponsored Plans that shall be in effect as of the Closing, and in respect of any Seller-Sponsored Plan for which the corresponding Company-Sponsored Plan is not set forth on such list, Seller and Buyer shall cooperate in good faith to enter into the Transition Services Agreement with respect to any such Seller-Sponsored Plan described in the immediately preceding sentence prior to the Closing.

(c)               Represented Employees. Each Business Employee (other than any Inactive Business Employee) who is employed by the Company or any of its Subsidiaries as of immediately prior to the Closing and who is represented by a labor union as of immediately prior to the Closing shall remain employed with the Company or one of its Subsidiaries at Closing and Buyer shall, as of the Closing Date, recognize each applicable labor union, assume the Collective Bargaining Agreement(s) in effect immediately prior to the Closing Date governing those Business Employees and comply with all the obligations thereunder pursuant to the terms therein. Following the Closing Date, Buyer shall credit Business Employees represented by a labor union for years of service with the Company, Seller and any Seller Affiliate for all purposes and as required by the applicable Collective Bargaining Agreement (other than for purposes of defined benefit pension plans (except for any plan with respect to which assets and liabilities will transfer to Buyer pursuant to this Section 8.1) and post-employment welfare plans or arrangements).

(d)               Non-Represented Employees. Each Business Employee (other than any Inactive Business Employee) who is employed by the Company or any of its Subsidiaries as of immediately prior to the Closing and is not represented by a labor union as of immediately prior to the Closing (each, a “Non-Represented Employee”) shall remain employed with the Company or Buyer or an Affiliate of Buyer at Closing and, upon the Closing, Buyer shall be responsible for providing compensation (including any incentive bonuses, commissions and/or other incentive opportunities) and employee benefits to such Business Employees following the Closing in accordance with this Section 8.1(d). For the avoidance of doubt, this Section 8.1(d) shall not create any right in any Business Employee or any other Person to any continued employment or service with Buyer, the Company or any of their respective Affiliates or alter the “at-will” nature of any such Business Employee or other Person or create any right to any compensation or benefits of any nature or kind whatsoever. All Business Employees (other than any Inactive Business Employees) who as of the date immediately prior to the Closing Date are employed and are not represented by a labor union and/or governed by a Collective Bargaining Agreement, shall be employed by the Buyer following the Closing Date and until (i) December 31, 2020, if the Closing Date occurs on or prior to March 31, 2020, or (ii) the one year anniversary of the Closing Date, if the Closing Date occurs after March 31, 2020 (or, in the case of clauses (i) and (ii), such earlier date on which such Business Employee’s employment with Buyer and its Affiliates terminates for any reason), in each case, on terms and conditions that are no less favorable in the aggregate than the terms and conditions in place for those Business Employees immediately prior to the Closing Date (excluding for this purpose any one-time or otherwise special or non-ordinary course incentive compensation opportunities and any equity-based or equity related compensation, any defined benefit pension plan or post-employment welfare benefits).

(e)               Inactive Business Employees. Immediately following the date on which any Business Employee who, as of the Closing Date, is on an approved leave of absence from which such Business Employee is entitled to return to active employment pursuant to the applicable written employment policies of Seller or any of its Affiliates or pursuant to applicable Law or any applicable Collective Bargaining Agreement (each, an “Inactive Business Employee”) presents himself or herself to Buyer or its Affiliates for active employment and is able to return to work, Buyer shall, or shall cause one of its Affiliates to, offer employment to such Inactive Business Employee, on terms consistent with those applicable to Business Employees generally under this Section 8.1, except with respect to timing, such offer shall be to commence employment with Buyer or one of its Affiliates upon such Inactive Business Employee’s return to active status (the date that employment with the Buyer or one of its Affiliates commences, the “Employment Commencement Date”). For each Business Employee who was an Inactive Business Employee prior to the Employment Commencement Date, (i) the Buyer’s (or its Affiliate’s) obligations hereunder shall commence on such Employment Commencement Date and (ii) all references to “Closing Date” or “Closing”, as applicable, in this Section 8.1, except for the reference to the “one year anniversary of the Closing Date” in Section 8.1(d), shall instead refer to the Employment Commencement Date. Buyer shall be under no obligation to offer employment to any Inactive Business Employee after the later of (A) the end of the six (6) month period immediately following the Closing Date and (B) the applicable period for reinstatement rights required under the terms of any applicable Collective Bargaining Agreement. Without limiting the generality of Section 8.1(f), Seller shall indemnify, defend and hold Buyer and its Affiliates harmless from and against any Liabilities in respect of any Inactive Business Employee in respect of the period prior to the Employment Commencement Date.

(f)                Employee Liabilities. Seller shall indemnify, defend and hold Buyer and its Affiliates harmless from and against any Liabilities in respect of any current or former officer, employee, agent, director, consultant, independent contractor or other service provider of Seller or any of its Affiliates (other than, in respect of any Liability arising after the Closing, the Business Employees) and any Plan sponsored by Seller or its Affiliates (other than, in respect of any Liability arising after the Closing, any Company Plan, and any Liabilities in respect of the period prior to the Closing explicitly assumed by Buyer or its Affiliates or an employee benefit plan sponsored thereby pursuant to Section 8.1(i), 8.1(j), 8.1(k) or 8.1(p)). For the avoidance of doubt, Seller shall retain any Liabilities for any Business Employees or Former Employees for any event or incident covered by any Seller-Sponsored Plans occurring prior to the Closing Date. Except as set forth in Section 8.1(e), Buyer shall indemnify, defend and hold Seller harmless from and against any Liabilities in respect of any Business Employees or Company Plan arising after the Closing Date and any Liabilities explicitly assumed by Buyer or its Affiliates herein.

(g)               Service Credit. As of the Closing Date, Buyer shall cause each Non-Represented Employee to receive service credit for purposes of eligibility to participate and vesting, and, solely in cases of vacation and severance benefits, benefit accruals (“Service Credit”) under any employee benefit plan, program or policy (including any vacation or paid time off program or policy) sponsored, maintained or contributed to by Buyer or any of its Affiliates for the Business Employees following the Closing Date (other than for purposes of defined benefit pension plans (except for any plan with respect to which assets will transfer to Buyer pursuant to this Section 8.1) and post-employment welfare plans or arrangements), to the same extent such service is recognized under comparable plans, programs and policies sponsored, maintained or contributed to by a member of the Seller Group immediately prior to the Closing Date. Nothing in this Section 8.1(g) shall require the crediting of service that would operate to duplicate any benefits or funding of any such benefits or with respect to any plan, program or policy of Buyer or its Affiliates that is no longer open to new participants or under which benefits accruals by participants thereunder have ceased.

(h)               Terms of Coverage. As of the Closing Date, with respect to the welfare benefit plans, programs and arrangements in which any Business Employee and in which current spouses, former spouses, domestic partners, covered dependents and beneficiaries of such Business Employees participate, Buyer shall use commercially reasonable efforts to (i) waive, or cause to be waived, any limitations on benefits relating to pre-existing conditions (if any) or requirement for evidence of insurability to the extent such limitation had already been satisfied under the applicable Plan, and (ii) recognize or cause to be recognized any expenses for purposes of satisfying any out of pocket maximums or deductibles in plans, programs or arrangements of Buyer for the calendar year in which the Closing Date occurs to the extent recognized under a Plan.

(i)                 401(k) Plan-to-Plan Transfers. As soon as administratively practicable following the Closing Date, but no later than the date that is six months after the Closing Date, Buyer shall cause the trustee of its defined contribution 401(k) plan to accept a direct transfer of all amounts in any account balance and related liabilities which any Business Employee (or current spouse, or former spouse or beneficiary of an Business Employee) has in the 401(k) Plan, (the “401(k) Transfer”). The 401(k) Transfer shall be done in accordance with Section 414(l) of the Code and the regulations, and the 401(k) Transfer shall be made in cash or in cash equivalents or, with respect to outstanding loans, loan receivables. Prior to the 401(k) Transfer, Buyer shall provide Seller Parent with reasonable written assurance that Buyer’s 401(k) plan is qualified under Section 401(a) and 401(k) of the Code and its related trust is tax exempt under Section 501(a) of the Code and Seller Parent may delay such transfer until it receives such assurance. Seller Parent and Buyer shall each reasonably cooperate with the other and shall provide to the other such written documentation, information and assistance as is reasonably necessary to effect the provisions of this Section 8.1(i). Seller shall indemnify, defend and hold Buyer and its Affiliates harmless from and against any and all Liabilities arising out of the failure by Seller to administer Seller’s 401(k) Plan in compliance with its terms or applicable Law.

(j)                 Verso Plan Plan-to-Plan Transfer.

(k)               FSA Spin-Off. Effective as of the Closing Date (or, if later, the date that participation by Business Employees in the Seller-Sponsored Plan that is a FSA Plan in accordance with Section 8.1(b) terminates (the later of such dates, the “FSA Transfer Date”)), any Business Employee (or current spouse, or former spouse, domestic partner, covered dependent or beneficiary of a Business Employee) shall cease to participate in any Seller-Sponsored Plan that is a health care and/or dependent care flexible spending account (a “FSA”). With respect to any Business Employee (or current spouse, or former spouse or beneficiary of a Business Employee) who immediately prior to the FSA Transfer Date was a participant in any Seller-Sponsored Plan that is a health care or dependent care flexible spending account plan (a “FSA Plan”) (and, if applicable pursuant to Section 8.1(b), any other employee of the Company or any of its Subsidiaries hired after the Closing Date who is a participant in any Seller-Sponsored Plan that is an FSA Plan (all such participants, the “FSA Participants”)), Buyer shall, or shall cause its Affiliates to, accept a spin-off of such FSA Participant’s FSA (if any) (or of a current spouse, or former spouse, domestic partner, covered dependent or beneficiary of a FSA Participant) for the calendar year in which the FSA Transfer Date occurs to the Company-Sponsored Plan that is a FSA Plan or any other FSA Plan designated by Buyer, and Buyer shall honor and continue through the end of the calendar year in which the FSA Transfer Date occurs the election of the FSA Participant’s FSA (if any) (or of a current spouse, or former spouse, domestic partner, covered dependent or beneficiary of a FSA Participant) in effect under the applicable Seller-Sponsored Plan that is a FSA Plan immediately prior to the FSA Transfer Date. On and after the FSA Transfer Date, Buyer shall assume obligations to administer and pay, under the Company-Sponsored Plan that is a FSA Plan or any other applicable plans of Buyer or any of its Affiliates, all eligible reimbursement claims of any FSA Participant (or current spouse, or former spouse, domestic partner, covered dependent or beneficiary of a FSA Participant) incurred, but not paid, in the calendar year in which the FSA Transfer Date occurs that are eligible for reimbursement and are submitted for payment on or after the FSA Transfer Date, whether such claims arose before, on or after the FSA Transfer Date, other than any claims arising out of the failure by Seller or its Affiliates to administer the FSA Plan in compliance with its terms or applicable Law. As soon as practicable following the FSA Transfer Date, Seller or its Subsidiaries shall cause to be transferred to Buyer an amount in cash equal to (i) the sum of all contributions to each applicable FSA made with respect to the calendar year in which the FSA Transfer Date occurs by any FSA Participant (or current spouse, or former spouse, domestic partner, covered dependent or beneficiary of such FSA Participant), reduced by (ii) the sum of all reimbursement payouts for claims paid to such FSA Participant (or current spouse, or former spouse, domestic partner, covered dependent or beneficiary of such FSA Participant) under the Seller-Sponsored Plan that is a FSA Plan in the calendar year in which the FSA Transfer Date occurs that were paid prior to the FSA Transfer Date. Notwithstanding any provision of this Section 8.1(k) to the contrary, from and after the Closing, the Seller-Sponsored Plan that is a FSA Plan shall retain and be solely liable for the FSA of each FSA Participant in respect of the calendar year ending immediately prior to the calendar year in which the Closing occurs, and in the event that there is a period of time remaining under the terms of such Seller-Sponsored Plan that is an FSA Plan for such FSA Participant to submit claims and the FSA Participant has a remaining balance thereunder, Seller shall cause the applicable Seller-Sponsored Plan to make reimbursement payouts thereunder as though the Closing had not occurred.

(l)                 Notwithstanding any provision of this Agreement to the contrary, to the extent any claims for benefits under any Plan that is a health plan are incurred with respect to any Business Employee (or current spouse, or former spouse, domestic partner, covered dependent or beneficiary of an Business Employee) for services rendered prior to the Closing Date, such claims shall remain a Liability of the applicable Plan of Seller Parent or its Affiliates, and any claims under any Plan that is a life insurance plan or disability plan with respect to any Business Employee (or current spouse, or former spouse, domestic partner, covered dependent or beneficiary of an Business Employee) arising out of events occurring prior to the Closing Date shall remain a Liability of the applicable Plan of Seller Parent or its Affiliate.

(m)             Workers’ Compensation. Seller and its Affiliates shall be responsible for all claims for workers’ compensation benefits which are incurred on or prior to the Closing Date by Business Employees and covered under Seller’s worker compensation policies. Buyer and its Affiliates shall be responsible for all claims for workers’ compensation claims that are incurred after the Closing Date by Business Employees and covered under Buyer’s workers compensation policies. For purposes of this Section 8.1(m), a claim for workers’ compensation benefits shall be deemed to be incurred when the event giving rise to the claim occurs; provided that responsibility for a workers’ compensation claim that arises from a repetitive activity that occurs over a period both preceding and following the Closing Date shall be apportioned pursuant to applicable workers’ compensation law and in accordance with applicable workers’ compensation insurance policies held by each party.

(n)               COBRA Benefits. With respect to each Plan that is a “group health plan,” (as defined under Section 4980B of the Code and the regulations thereunder (“COBRA”)), effective as of the Closing Date, Buyer shall be responsible for all obligations to provide or offer COBRA continuation coverage pursuant to COBRA to any Business Employee who is actively employed as of immediately prior to the Closing and for the current or former spouse, domestic partner, or covered dependent or beneficiary of any such Business Employee. Seller and its Affiliates shall be responsible for all obligations to provide or offer COBRA continuation coverage pursuant to COBRA to any Former Employee and for the current or former spouse, domestic partner, or covered dependent or beneficiary of a Former Employee and to any other Business Employee who is not actively employed as of immediately prior to the Closing.

(o)               WARN Act. Any Liability under the WARN Act with regard to any Business Employee that arises following the Closing shall be the sole responsibility of Buyer and Buyer shall indemnify, defend and hold Seller and its Affiliates harmless from and against any and all such resulting Liabilities under the WARN Act. Further, Seller and its Affiliates shall provide any required notice under, and shall retain all Liabilities relating to the WARN Act with respect to any triggering event under the WARN Act affecting Former Employees.

(p)               Treatment of Annual Bonuses. Seller and its Affiliates shall retain all Liability for any cash incentive compensation payable under each annual compensation plan or arrangement in which any Business Employee participates in respect of fiscal year 2019. Buyer shall, or shall cause its Affiliates to, assume all Liability for any cash incentive compensation payable under each incentive compensation plan or arrangement in which any Business Employee who is employed as of immediately prior to the Closing participates in respect of the fiscal year 2020 to any such Business Employee in connection with their services to the Business (the “2020 Cash Incentive Compensation”). All 2020 Cash Incentive Compensation shall be governed by plans, programs or arrangements maintained by Buyer and its Affiliates (including the Company and its Subsidiaries) on terms and conditions no less favorable than those that applied to each such Business Employee prior to the Closing Date, including with respect to target incentive opportunities and applicable performance metrics. Seller shall consult with Buyer in good faith regarding the terms and conditions of any 2020 Cash Incentive Compensation prior to adopting the applicable plans, programs or arrangements.

(q)               This Agreement shall be binding upon and inure solely to the benefit of each of the parties to this Agreement, and nothing in this Agreement, express or implied, shall confer upon any employee, independent contractor, any beneficiary, or any other Person any rights or remedies of any nature whatsoever under or by reason of this Agreement. Nothing contained herein, express or implied: (i) shall be construed to establish or be treated as an amendment or modification of any employee benefit plan, program, agreement, arrangement, policy or scheme (ii) shall alter or limit Buyer’s, the Company’s, any member of the Seller Group’s or their Affiliates’ ability to amend, modify or interpret or terminate any employee benefit plan, program, agreement, arrangement, policy or scheme at any time in accordance with the terms thereof and applicable Law or (iii) give any third party, including any Business Employee, any right to rely upon or demand or enforce the provisions of this Section 8.1.

(r)                Payroll Tax Reporting. To the extent permissible under applicable Law, Buyer and Seller agree that for the taxable year that includes the Closing Date, they will follow the Alternate Procedure of Rev. Proc. 2004-53, 2004-34 IRB 320, so that Buyer shall be responsible for employment Tax reporting with respect to Business Employees for that calendar year; provided that Seller provides Buyer with all employment Tax information reasonably requested by Buyer in connection with Buyer’s preparation and filing of employment Tax Returns for the Business Employees for that year.

(s)                Seller Parent Equity Awards. Seller Parent and its Affiliates shall take all actions necessary such that, as of immediately prior to the Closing, each Business Employee shall be fully vested in all Seller Parent equity-based compensation awards held by such Business Employee, and Seller Parent and its Affiliates shall retain all Liability with respect thereto from and after the Closing.

Section 8.2            Non-Solicitation.

(a)               For 12 months following the Closing Date, Seller Parent shall not, and shall cause its Subsidiaries not to, directly or indirectly (except on behalf of and for the benefit of Buyer) solicit or offer employment to any Business Employee; provided that nothing in this Section 8.2(a) shall prohibit Seller Parent or any of its Affiliates from employing any such employee as a result of a general solicitation to the public or general advertising or the solicitation of any Business Employee whose employment with Buyer has terminated at least six months prior to the date of the applicable solicitation.

(b)               Subject to Section 8.1, for 12 months following the Closing Date, Buyer shall not, directly or indirectly, solicit or offer employment to any employee, officer, manager or director of a member of Seller Group; provided that nothing in this Section 8.2(b) shall prohibit Buyer or any of its Affiliates from employing any such employee as a result of a general solicitation to the public or general advertising or the solicitation of any employee whose employment with all members of Seller Group has terminated at least six months prior to the date of the applicable solicitation.

Section 8.3            Non-Competition.

(a)               For a period of two years after the Closing Date (the “Restricted Period”), Seller Parent agrees, on behalf of itself and its Affiliates (it being acknowledged and agreed that, solely for the purposes of this Section 8.3, the term “Affiliates” shall not include any stockholder of Seller Parent), that neither Seller Parent nor any of its Affiliates shall, directly or indirectly (i) engage in, or (ii) own, operate or assist any Person or business which engages in the business of designing, manufacturing and selling any specialty paper products related to (a) coated thermal transfer papers manufactured and sold at the Stevens Point Mill, (b) coated direct thermal base papers, manufactured and sold at the Stevens Point Mill or (c) uncoated flexible packaging manufactured and sold at the Androscoggin Mill (any such business, a “Competitive Business”). Notwithstanding the foregoing, nothing herein shall prohibit Seller Parent or any of its Affiliates, at any time, from:

(b)               Notwithstanding anything herein to the contrary, in the event that any bona fide third party Person or Persons acquire (whether by equity purchase, asset purchase, merger, consolidation or otherwise) (such Person or Persons, a “Third Party Buyer”), directly or indirectly, any or all of the assets or business of the Seller Group as of the Closing (collectively, the “Restricted Assets”), nothing herein shall restrict such Third Party Buyer or its Affiliates from engaging in, owning or operating any Person or business that engages in any of the businesses or activities in which such third party and its Affiliates are engaged as of immediately prior to such acquisition or may be engaged in the future; provided that in no event shall any such third party or an Affiliate thereof engage in, own or operate any Competitive Business through use of the Restricted Assets for the remainder of the Restricted Period.

(c)               If, at the time of enforcement of this Section 8.3, a court or other Governmental Authority of competent jurisdiction shall hold that the subject matter, duration, scope, geographic area or other restrictions stated herein are unreasonable under circumstances then existing, the maximum subject matter, duration, scope, geographic area or other restrictions deemed reasonable under such circumstances by such court shall be substituted for the stated subject matter, duration, scope, geographic area or other restrictions.

(d)               Seller Parent acknowledges and agrees that (i) the restrictions contained in this Section 8.3 are reasonable in all respects (including with respect to the subject matter, duration, scope and geographic area) and are necessary to protect the value of the Company (including the goodwill related thereto) and (ii) Buyer would not have agreed to consummate the transactions contemplated hereby without the restrictions contained in this Section 8.3.

(e)               Seller Parent recognizes and affirms that in the event of breach by it of any of the provisions of this Section 8.3, money damages would be inadequate and Buyer would have no adequate remedy at law. Accordingly, Buyer shall have the right, in addition to any other rights and remedies existing in its favor, to enforce its rights and Seller Parent’s obligations under this Section 8.3 not only by a claim for damages, but also by a claim for specific performance, injunctive or other equitable relief in order to enforce or prevent any violations of the provisions of this Section 8.3.

(f)                For avoidance of doubt, nothing in this Section 8.3 shall prohibit Seller Parent or any of its Affiliates, at any time, from manufacturing and selling any products that are currently manufactured and sold by Seller Parent and its Affiliates as of the date of this Agreement at any facility other than the Stevens Point Mill and the Androscoggin Mill.

Section 8.4            Confidentiality.

(a)               The confidentiality provisions of the Confidentiality Agreement shall be deemed incorporated herein by reference as if set forth herein and shall continue in full force and effect until the Closing, unless this Agreement is terminated prior to the Closing, in which case the Confidentiality Agreement shall nonetheless continue in full force and effect in accordance with its terms.

(b)               From and after the Closing until the date that is two years after the Closing Date, Seller Parent shall, and shall cause its Subsidiaries and Representatives to, keep confidential any and all non-public information relating to the Business; provided, however, that Seller Parent shall not be liable hereunder with respect to any disclosure to the extent such disclosure is determined by Seller Parent (with the advice of counsel) to be required by any applicable Law or Governmental Order, including applicable rules of any securities exchange. In the event that a member of Seller Group or its Representatives are required by any applicable Law or Governmental Order to disclose any such non-public information, Seller Parent shall, (i) to the extent permissible by such applicable Law or Governmental Order, provide Buyer with prompt notice of such requirement, (ii) disclose only that information that Seller Parent determines (with the advice of counsel) is required by such applicable Law or Governmental Order to be disclosed, and (iii) use reasonable efforts to preserve the confidentiality of such non-public information, including by, at Buyer’s request, reasonably cooperating with Buyer to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded such non-public information (at Buyer’s sole cost and expense). Notwithstanding the foregoing, such non-public information shall not include information that (A) is or becomes available to the public after the Closing other than as a result of a disclosure by a member of Seller Group or its Representatives in breach of this Section 8.4(b), (B) becomes available to a member of Seller Group or its Representatives after the Closing from a source other than Buyer or its Affiliates or its Representatives if the source of such information is not known by a member of Seller Group or its Representatives to be bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, Buyer or its Affiliates with respect to such information, or (C) is independently developed by a member of Seller Group or its Representatives without breach of this Section 8.4(b).

(c)               From and after the Closing until the date that is two years after the Closing Date, Buyer shall, and shall cause its Affiliates and Representatives to, keep confidential any and all non-public information relating to a member of Seller Group, including any information that was furnished to Buyer and its Affiliates or Representatives by a member of Seller Group or its Representatives in connection with the Contemplated Transactions; provided, however, that Buyer shall not be liable hereunder with respect to any disclosure to the extent such disclosure is determined to be required by Buyer (with the advice of counsel) by any applicable Law or Governmental Order, including applicable rules of any securities exchange. In the event that Buyer or any of its Affiliates or Representatives are required by any applicable Law or Governmental Order to disclose any such non-public information, Buyer shall, (i) to the extent permissible by such applicable Law or Governmental Order, provide Seller Parent with prompt written notice of such requirement, (ii) disclose only that information that Buyer determines (with the advice of counsel) is required by such applicable Law or Governmental Order to be disclosed, and (iii) use reasonable efforts to preserve the confidentiality of such non-public information, including by, at Seller Parent’s request, reasonably cooperating with Seller Parent to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded such non-public information (at Seller Parent’s sole cost and expense). Notwithstanding the foregoing, such non-public information shall not include information that (A) is or becomes available to the public other than as a result of a disclosure by Buyer or its Affiliates or Representatives in breach of this Section 8.4(c) or (B) becomes available to Buyer or its Affiliates or Representatives from a source other than a member of Seller Group or its Representatives if the source of such information is not known by Buyer or its Affiliates or Representatives to be bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, a member of Seller Group with respect to such information, or (C) is independently developed by Buyer or its Affiliates or Representatives without breach of this Section 8.4(c).

Section 8.5            Publicity.

Except with respect to (a) an Adverse Recommendation Change, a Superior Proposal or any matter related to any of the foregoing, (b) any dispute between or among the parties regarding this Agreement or the Contemplated Transactions, and (c) a press release or other public statement that is consistent in all material respects with previous press releases, public disclosures or public statements made by a party in accordance with this Agreement, including in investor conference calls, filings with the SEC, Q&As or other publicly disclosed documents, in each case under this clause (c), to the extent such disclosure is still accurate, Buyer and Seller Parent shall consult with each other before issuing, and give each other the reasonable opportunity to review and comment upon, any press release or other written public statement with respect to this Agreement or the Contemplated Transactions, and shall not issue any such press release or make any such written public statement prior to such consultation, except as such party reasonably concludes (based upon advice of its outside legal counsel) may be required by applicable Law, court process or by obligations pursuant to the rules of any national securities exchange or national securities quotation system. Buyer and Seller Parent agree that the initial press release to be issued with respect to this Agreement and the Contemplated Transactions shall be in a form agreed to by the parties.

Section 8.6            Tax Matters.

(a)               Mutual Cooperation. Seller Parent and Buyer shall, solely with respect to the Company, its Subsidiaries and the Business, (i) each provide the other with such assistance as may reasonably be requested by either of them in connection with the preparation of any Tax Return or the defense or administration of any Tax Contest, (ii) each retain and provide the other upon reasonable request any records (or portions thereof) that may be relevant to any Tax Return or Tax Contest; provided that (x) with respect to any Consolidated Group Tax Return, provision of solely the portions relevant to the Business is sufficient to meet this obligation, (y) the exceptions provided in Sections 5.4(a)(i)(B) and (C) (including the proviso with respect thereto) are incorporated herein by reference, mutatis mutandis and (z) neither party shall be required to provide the portions of any records or other documentation pertaining to assets other than the Company, its Subsidiaries and the Business, and (iii) each provide the other with any final determination of any such Tax Contest if the other party is responsible for any Liability that arises therefrom. Without limiting the generality of the foregoing, Buyer and Seller Parent shall retain, until the applicable statutes of limitations (including any extensions) have expired, copies of all Tax Returns, supporting work schedules and other records or information that may be relevant to such Tax Returns for all Pre-Closing Tax Periods.

(b)               Transaction Taxes. Seller Parent and Buyer shall each bear 50% of any Transaction Taxes arising from or with respect to the sale and purchase of the Interests, and Seller shall bear 100% of any other Transaction Taxes. Buyer and Seller Parent agree to reasonably cooperate with each other to timely complete and file (i) all Tax Returns for Transaction Taxes, and (ii) to the extent permitted by applicable Law, any and all exemption certificates or other documents that may reduce or eliminate any Transaction Taxes.

(c)               Straddle Periods. In the case of any Straddle Tax Period, Taxes shall be apportioned between the Pre-Closing Tax Period and the Post-Closing Tax Period in the case of (i) real property Taxes, personal property Taxes, or ad valorem obligations and similar recurring Taxes, on a daily pro rata basis and (ii) Taxes other than the Taxes described in clause (i), as if such period ended on the Closing Date.

(d)               Tax Returns. Seller Parent shall prepare and timely file (or cause to be prepared and timely filed) all Tax Returns of the Company and its Subsidiaries or relating directly to the Business for any Pre-Closing Tax Period (other than a Straddle Tax Period) and, to the extent due on or prior to the Closing Date, any Straddle Tax Period. Buyer shall prepare and timely file (or cause to be prepared and timely filed) all other Tax Returns, other than Seller Parent’s Consolidated Group Tax Returns, of the Company and its Subsidiaries relating directly to the Business with respect to any Straddle Tax Period. If Seller Parent or Buyer is required to (i) file any Tax Return to be prepared by the other party or (ii) bear the economic burden of any portion of the Tax payable in connection with any Tax Return to be prepared by the other party, the party responsible for preparing such Tax Return (the “Preparer”) shall deliver to the other party (the “Reviewer”) a copy of such Tax Return and any supporting work schedules, work papers and other documentation relevant to the Reviewer’s review of such Tax Return not later than 45 days prior to the due date for such Tax Return (including applicable extensions) (the “Due Date”). The Preparer shall not file such Tax Return until the earlier of (i) the receipt of written notice from the Reviewer indicating the Reviewer’s consent thereto, or (ii) one day prior to the Due Date, and shall incorporate all reasonable comments of the Reviewer. If the Reviewer is required to file such Tax Return, the parties will discuss in good faith any reasonable comments of the Reviewer and revise the Tax Return accordingly prior to the filing of such Tax Return.

(e)               Refunds and Credits. If one party receives a refund (or credit) of Taxes that were allocable to, payable by, and actually paid or reimbursed by the other party (which refund or credit shall be allocable between the parties based on the same methodology used to allocate the original taxes refunded or credited), such party shall promptly pay such refund or credit over to the other party.

(f)                Tax Contests.

(g)               GIPOP Elections. If requested in writing by Buyer prior to the Closing Date, Seller Parent shall use commercially reasonable efforts to cause GIPOP to (i) make a valid election under Section 754 of the Code for the taxable period that includes the Closing Date, and (ii) use the interim closing of the books method under Section 706 of the Code in respect of the Contemplated Transactions.

Section 8.7            Payments.

If following the Closing, a member of Seller Group receives payment on behalf of one of the Business that constitutes an asset of the Business (after giving effect to the Restructuring), such payment shall be the property of, and Seller Parent and Seller shall cause the applicable member of the Seller Group to forward and remit to Buyer, as promptly as practicable, but no later than ninety days, after receipt thereof. In the event that Buyer or the Company receives any payments on behalf of any business of a member of Seller Group or Affiliates (other than the Business) after the Closing, such payments shall be the property of, and shall be forwarded and remitted to such member of Seller Group or Affiliate as promptly as practicable, but no later than ninety days, after receipt thereof.

Section 8.8            Use of Names and Logos.

(a)               On and after the Closing Date, Buyer shall not, directly or indirectly, and shall not assist others to, in any way adopt, use, seek to use, apply to register or register the Retained Marks, or any confusingly similar Trademark, on or in connection with any product, service, corporate name, Trademark, trade name, domain name, service mark or service name. On and after the Closing Date, Buyer further shall not, directly or indirectly, challenge, and shall not assist any other party in challenging, by cancellation, opposition or otherwise, the validity of the Retained Marks or any current or future applications for registration or registrations thereof, or Seller Parent’s or any of its Subsidiaries’ ownership thereof or title thereto, except in the event Seller Parent or any of its Subsidiaries first initiates any action, lawsuit or other claim against Buyer or any of its Subsidiaries. Except as provided in Section 8.8(b), in no event shall Buyer or any of its Affiliates, use any such Retained Mark on or after the Closing in any way, including in any manner likely to cause confusion, or to cause mistake or to deceive as to the affiliation, connection, or association of Buyer or any Affiliate of Buyer, or as to the origin, sponsorship, or approval of such products or services. Within 60 days after the Closing Date, Buyer shall, or shall cause the Company and its Subsidiaries to, submit all necessary and appropriate requests with the Secretary of State of the State of Delaware and all other applicable Governmental Authorities to amend the company name of the Company and each of its Subsidiaries to remove “Verso” from its company name.

(b)               Notwithstanding the foregoing, for a period of one hundred 180 days commencing on the Closing Date, Seller Parent hereby grants to Buyer and Buyer hereby accepts, a limited and non-exclusive right and license (which right and license shall not be sublicensable or transferable or assignable, including by change of control or operation of law) to use the Retained Marks solely in connection with the operation of the Business (and subject at all times to Seller Parent’s right to exercise quality control with respect to the use of the Retained Marks and the goodwill associated therewith) solely for the purpose of exhausting the inventory of printed purchase orders, sales invoices, marketing materials, stationery, printed forms, other documents and office and shipping supplies, and other products, equipment, items and web/Internet pages bearing the Retained Marks as of the Closing Date on a royalty-free basis, subject to the terms and conditions of this Agreement. Buyer’s use of the Retained Marks during this 180 day phase-out license period shall be strictly conform to the manner in which such marks were used by Seller Parent or its Subsidiaries prior to Closing and all use of such marks shall be, at all time, subject to Seller Parent’s direction and control. Buyer shall correct any use that materially deviates from the written quality standards provided to Buyer prior to the Closing. Upon the termination of the one hundred 180 days license period, Buyer shall terminate all use of the Retained Marks, including from all signage, web/Internet use, and other business materials and documents, and certify the same in writing. Buyer shall use commercially reasonable efforts to destroy any remaining items which bear the Retained Marks upon the termination of the foregoing license.

Section 8.9            Know-How Documentation.

The parties agree that the documentation in which any Know-How of the Business is embodied is already available to Buyer and a separate handover of such documentation is therefore not necessary. To the extent that Seller Parent or its applicable Subsidiary, including but not limited due to statutory safekeeping periods or contractual obligations, is not authorized to transfer such documentation, such transfer will not take place together with the transfer of the Business. In such a case Seller Parent will, as far as legally possible, grant to Buyer the necessary access to such documents at any time within the statutory safekeeping periods. As far as is legally permissible, Buyer may have copies of such documents made at its own cost.

Section 8.10        Certain Proprietary Information of Seller.

Prior to the Closing Date, the Business was routinely supplied copies of proprietary and confidential information relating to strategic, technical, or marketing plans of Seller Parent and its Affiliates and their various operations unrelated to the Business (collectively, “Seller Information”). Although Seller Parent has attempted to recover such Seller Information related to the Business, some of this confidential information may still be present within the Company. Buyer therefore agrees that it will not use or disclose Seller Information that is specifically identified as such for any purpose whatsoever, and shall destroy any remaining copies of such specifically identified Seller Information in its possession after Closing.

Section 8.11        Further Assurances.

Following the Closing, and subject to the terms and conditions of this Agreement, Buyer, Seller Parent and Seller shall execute and deliver, or cause other members of the Seller Group to execute and deliver, such additional documents, instruments and assurances and take such other actions as may reasonably be requested to carry out and give effect to the transactions contemplated by this Agreement and the Contemplated Transactions. Members of the Seller Group agree, for the benefit of Buyer, that the Business Transfer Documents referred to in the Restructuring Agreement shall be reasonably acceptable to Buyer and that Buyer shall have a reasonable opportunity to review the same prior to the Closing Date.

ARTICLE IX
INDEMNIFICATION

Section 9.1            Survival of Representations and Warranties and Covenants.

(a)               All of the representations and warranties (other than the Buyer Fundamental Representations, the representations and warranties set forth in Section 3.16 and the Seller Fundamental Representations) of the parties set forth in this Agreement shall terminate and expire, and shall cease to be of any force or effect, upon the Closing Date. The Buyer Fundamental Representations and the Seller Fundamental Representations and the representations and warranties set forth in Section 3.16 shall survive until 60 days after the applicable statute of limitations has run (taking into account any extensions or waivers thereof), and all Liability and indemnification obligations with respect to any such representations and warranties shall thereupon be extinguished (except to the extent a claim for indemnification has been made in writing prior to such time for any breach thereof). All covenants and agreements set forth herein which by their terms are to be performed in whole or in part, or which prohibit actions, subsequent to the Closing Date, shall survive the Closing for the period expressly specified therein. All covenants and agreements contained herein which by their terms are to be performed in whole on or prior to the Closing Date shall survive the Closing for 12 months.

(b)               As used in this Article IX, any reference to a representation, warranty or covenant contained in any Section of this Agreement shall include the appropriate Disclosure Schedule, relating to such Section.

Section 9.2            Indemnification.

(a)               Upon the terms and subject to the conditions of this Article IX, and subject to the limitations set forth in Section 9.4, from and after the Closing, Seller Parent hereby agrees to hold harmless and indemnify Buyer, its equityholders, directors, officers, Affiliates, employees, successors and permitted assigns (hereinafter individually referred to as a “Buyer Indemnified Party”) from and against, without duplication, any and all losses, Liabilities, damages, demands, claims, suits, actions, causes of action, judgments, assessments, Taxes, costs and expenses, and any and all amounts paid in settlement of any claim or litigation including reasonable attorneys’ fees and reasonable out-of-pocket expenses (collectively, “Damages”) incurred by any Buyer Indemnified Party, as a result of or arising from: (i) a breach of any Seller Fundamental Representation or other representation or warranty made by Seller Parent in Section 3.16, (ii) a breach or non-fulfillment of any covenant or agreement made by any member of Seller Group in this Agreement or the Restructuring Agreement (or the Business Transfer Documents referred to therein), (iii) without duplication, any Taxes of the Company or any of its Subsidiaries for any Pre-Closing Tax Period, any Transaction Taxes allocable to Seller Parent under Section 8.6(b) and any Consolidated Return Taxes, (iv) Retained Liabilities, and (v) any claim that Buyer’s use of the Retained Marks pursuant to Section 8.8(b) infringes a Trademark owned by any third party (clauses (i) through (v) collectively, “Buyer Indemnifiable Claims”).

(b)               Upon the terms and subject to the conditions of this Article IX, and subject to the limitation set forth in Section 9.4, from and after the Closing, Buyer hereby agrees to hold harmless and indemnify Seller, its shareholders, directors, officers, Affiliates, employees, successors and permitted assigns (hereinafter individually referred to as a “Seller Indemnified Party”), from and against, without duplication, any and all Damages incurred by any Seller Indemnified Party as a result of or arising from: (i) a breach of any Buyer Fundamental Representation, (ii) a breach or non-fulfillment of any covenant or agreement made by Buyer in this Agreement or the Company in the Restructuring Agreement (or the Business Transfer Documents referred to therein) to be performed following the Closing and (iii) any Transaction Taxes allocable to Buyer under Section 8.5(b) (collectively, “Seller Indemnifiable Claims”).

(c)               As used herein, the term “Indemnified Party” means a Buyer Indemnified Party when applied to Section 9.2(a) hereof and means a Seller Indemnified Party when applied to Section 9.2(b) hereof; and the term “Indemnifiable Claims” means Buyer Indemnifiable Claims when applied to Section 9.2(a) hereof and Seller Indemnifiable Claims when applied to Section 9.2(b) hereof.

Section 9.3            Claim Procedure.

(a)               An Indemnified Party seeking indemnity under this Article IX shall give written notice (a “Claim Notice”) to the party from whom indemnification is sought (an “Indemnifying Party”) promptly upon becoming aware of the matters forming the basis of such Indemnifiable Claim, whether the Damages sought arise from matters solely between the parties or from third-party Indemnifiable Claims described in Section 9.3(d). The Claim Notice shall contain (i) a description of the matter and a good faith estimate of the amount of the Damages (the “Claimed Amount”) incurred or reasonably expected to be incurred by the Indemnified Party, (ii) a reasonable explanation of the basis for the Claim Notice, (iii) a demand for payment of those Damages, and (iv) a certification that the Indemnified Party has in good faith already sustained some (though not necessarily all) Damages with respect to such Indemnifiable Claim.

(b)               Response to Claim Notice. Within 30 days after delivery of a Claim Notice, the Indemnifying Party shall deliver to the Indemnified Party a written response (the “Response”) in which the Indemnifying Party shall either: (i) agree that the Indemnified Party is entitled to receive all of the Claimed Amount and pay the Claimed Amount in accordance with a payment and distribution method reasonably acceptable to the Indemnified Party or (ii) dispute that the Indemnified Party is entitled to receive all of the Claimed Amount (in such an event, the Response shall be referred to as an “Objection Notice”). If the Indemnifying Party fails to deliver a Response in the required 30 day period, the Indemnifying Party shall be deemed to have delivered an Objection Notice.

(c)               Contested Claims. If the Indemnifying Party disputes, or is deemed to dispute, its obligation to pay the Claimed Amount pursuant to an Objection Notice, Buyer and Seller Parent shall attempt in good faith to reach an agreement as to the disputed matter. If Buyer and Seller Parent shall have failed to resolve such disputed matters within 90 days from the Indemnifying Party’s receipt of the Objection Notice, then such outstanding dispute shall be determined by litigation conducted in accordance with Section 10.10 of this Agreement.

(d)               Third-Party Claims. Except with respect to any Tax Contest, which shall be governed by Section 8.6(f):

(e)               Subrogation. To the extent that the Indemnifying Party makes or is required to make any indemnification payment to the Indemnified Party, the Indemnifying Party shall be entitled to exercise, and shall be subrogated to, any rights and remedies (including rights of indemnity, rights of contribution and other rights of recovery) that the Indemnified Party or any of the Indemnified Party’s Affiliates may have against any other Person with respect to any Damages to which such indemnification payment is directly related. Promptly following a request by an Indemnifying Party, such Indemnified Party will take all reasonably necessary, proper or desirable actions (including the execution and delivery of any document reasonably requested) to accomplish the foregoing.

(f)                Mitigation. Each Indemnified Party will use its commercially reasonable efforts to mitigate any Damages incurred or reasonably expected to be incurred by it or any Person it controls from an Indemnifiable Claim for which such Indemnified Party intends to seek indemnification under this Article IX, including through the pursuit of any Tax refund, upon becoming aware of any fact, event or circumstance which has resulted in, or would reasonably be expected to give rise to, any such Damage. If an Indemnified Party mitigates its Damages after the Indemnifying Party has paid the Indemnified Party under any indemnification provision of this Agreement in respect of such Damages, the Indemnified Party must notify the Indemnifying Party and pay to the Indemnifying Party the value of the benefit to the Indemnified Party of that mitigation within 10 Business Days after the benefit is received.

Section 9.4            Limitations on Indemnification.

Notwithstanding anything to the contrary contained in this Agreement:

(a)               No Indemnifying Party shall be liable to or otherwise responsible to any Indemnified Party for (i) punitive Damages, that arise out of or relate to this Agreement, any Transaction Agreement, or the performance or breach thereof or any liability retained or assumed hereunder or thereunder or (ii) any Damages relating to any matter to the extent that (A) a liability or reserve relating to such matter is expressly included in the Business Financial Information (except to the extent relating to Taxes), (B) the Indemnified Party has otherwise been compensated for such Damages pursuant to an insurance policy or separate indemnity claim for a breach of one or more other representations, warranties, covenants or agreements giving rise to the same or duplicative Damages or (C) it was included in the calculation of the Purchase Price, as finally determined pursuant to Section 2.5. No party shall be entitled to rescission of this Agreement after Closing as a result of breach of any other party’s representations, warranties, covenants or agreements, or for any other matter set forth herein.

(b)               The amount of any and all Damages shall be determined net of any amounts actually recovered by any Buyer Indemnified Party under insurance policies or from other collateral sources (such as contractual indemnities of any Person which are contained outside of this Agreement) with respect to such Damages (after giving effect to any applicable deductible, retention, collection costs, retrospectively rated premiums and actual increase in future premiums primarily as a result of or incurred in connection with the claim).

(c)               Buyer Indemnified Parties shall not be entitled to recover any Damages resulting from or in connection with any Tax for a Post-Closing Tax Period, except to the extent any such Damages constitute Consolidated Return Taxes or Transaction Taxes that are payable by Seller Parent under Section 8.6(b).

(d)               In any case where a Buyer Indemnified Party recovers, under insurance policies or from other collateral sources, any amount in respect of a matter for which such Buyer Indemnified Party was indemnified pursuant to Section 9.2(a), such Buyer Indemnified Party shall promptly pay over to Seller Parent the amount so recovered (after giving effect to any applicable deductible, retention, collection costs, retrospectively rated premiums and actual increase in future premiums primarily as a result of or incurred in connection with the claim) (after deducting therefrom the full amount of the expenses incurred by such Buyer Indemnified Party in procuring such recovery), but not in excess of the sum of (i) any amount previously so paid to or on behalf of such Buyer Indemnified Party in respect of such matter and (ii) any amount expended by Seller Parent in pursuing or defending any claim arising out of such matter.

(e)               (i) Seller Parent shall not be liable for any Buyer Indemnifiable Claims pursuant to Section 9.2(a)(i) in an amount in excess of the Purchase Price and (ii) Buyer shall not be liable for any Seller Indemnifiable Claims pursuant to Section 9.2(b)(i) in an amount in excess of the Purchase Price.

(f)                Following the Closing Date, Seller Parent shall have no obligation to indemnify any Buyer Indemnified Party under Section 9.2(a) for any Damages arising under Environmental Law or relating to the Release of Hazardous Materials and relating to any Owned Real Property or Leased Real Property to the extent such Damages arise from or are the result of Buyer, its Affiliates, the owner of the Business or its Affiliates, or their representatives (a) undertaking excavation, drilling or similar intrusive activities impacting the subsurface or invasive sampling or testing activities of environmental media (including any soil, sediment, groundwater, or surface water) or building material at the Owned Real Property or Leased Real Property other than: (i) as a result of any order or direction of any Governmental Authority with authority to issue such order or direction (provided such order or direction is not solicited by or on behalf of the Buyer, its Affiliates, the owner of the Business or its Affiliates, or their representatives for the purpose of triggering an indemnification right under this Agreement), (ii) as required by applicable Law or any Permit or to respond to a third-party claim, or (iii) in connection with any construction, maintenance or repair activities or any excavation, drilling or similar intrusive activities conducted in the ordinary course of operating the Business and for a legitimate business purpose; (b) disclosing, without the prior consent of Seller Parent, any presence or Release of any Hazardous Materials in, to or from any environmental media that existed or occurred prior to the Closing Date to any Governmental Authority with respect to the Owned Real Property or Leased Real Property (it being understood that the mere reporting of information as required by applicable Environmental Law or any Permit shall not be construed as an unauthorized disclosure), or (c) changing the zoning classification of any specific Owned Real Property after the Closing Date to a non-commercial or non-industrial, as applicable, use. Furthermore, Seller Parent shall have no obligation to indemnify any Buyer Indemnified Party under Section 9.2(a) for any Damages for any investigation, remediation or corrective action related to any contamination or other environmental condition arising from a Release of Hazardous Materials at any Owned Real Property or Leased Real Property to the extent such investigation, remediation or corrective action exceeds (i) that which is required by applicable Environmental Law or any Permit or any Lease first entered into prior to the Closing Date, or (ii) the most cost-effective means of investigating, remediating or undertaking remedial or corrective action regarding such contamination or other condition that is permitted by Environmental Law and all Governmental Authorities with jurisdiction over such matter for the continued use of such Owned Real Property or Leased Real Property, consistent with its use at the time of the Closing Date (for the avoidance of doubt, if the means of investigating, remediating or undertaking corrective action is not the most cost-effective means, then Seller Parent shall be liable for Damages up to the most cost-effective means and Buyer shall be responsible for any Damages in excess of the most cost-effective means).

Section 9.5            Exclusive Remedy.

From and after the Closing, except for payment of the Additional Payment Amount pursuant to Section 2.5, the rights to reimbursement and indemnification set forth in Section 5.7(c) and Section 5.12(b), claims under the Transition Services Agreement or the Pulp Supply Agreement and Fraud (collectively, the “Excluded Claims”) Section 9.2 will provide the exclusive remedy for any misrepresentation, breach of warranty, covenant or other agreement or other claim arising out of this Agreement or the Contemplated Transactions; provided, however, that the foregoing shall not preclude any party’s right to seek injunctive or other equitable relief in respect of any other party’s failure to fulfill or perform any of its covenants, agreements or obligations contained herein or pursuant to the Restructuring Agreement if such claim for injunctive or other equitable relief is submitted within the applicable time period. Except for Excluded Claims and as specifically set forth in Section 9.2(a) or Section 9.2(b), Buyer and Seller Parent each waives on behalf of itself and all other Indemnified Parties and its and their successors and assigns any other claims that it or it’s Indemnified Parties may have against the other party and its or their representatives related to the Contemplated Transaction; provided that nothing herein shall prevent any Buyer Indemnified Party from seeking recovery, or recovering, against the R&W Insurance Policy in accordance with its terms; provided further that nothing herein shall operate to limit the Liability of any party to the other parties for Fraud in the event such Fraud is finally determined by a court of competent jurisdiction.

Section 9.6            Payment.

(a)               All indemnification payments required to be made pursuant to this Article IX shall be made by wire transfer of immediately available funds by the Indemnifying Party to an account(s) provided by the Indemnified Party.

(b)               Amounts paid in respect of indemnification obligations of the parties shall be treated as an adjustment to the Purchase Price, including all applicable Tax purposes.

Section 9.7            R&W Insurance Policy.

The parties acknowledge that, as of the date hereof, Buyer has bound the R&W Insurance Policy and that a true and correct copy of such R&W Insurance Policy has been delivered to Seller. The R&W Insurance Policy shall provide that the insurer shall waive and not pursue any subrogation rights against Seller, unless the Loss (as defined in the R&W Insurance Policy) is caused by the Fraud of Seller. Notwithstanding anything to the contrary in this Agreement (including Section 9.4), Buyer shall not be obligated to make a claim under the R&W Insurance Policy for any Damages arising from or related to a failure of a Seller Fundamental Representation or representation contained in Section 3.16 to be true and correct until three years after Closing and then only to the extent there is any limit remaining under such policy after satisfaction of all pending claims thereunder.

Section 9.8            Transfer of Indemnity.

In the event that Seller Parent consolidates with or merges into any other Person and is not the continuing or surviving corporation or entity, or transfers or conveys all or substantially all of its properties or assets to any Person, then Seller Parent shall make proper provision in a written agreement reasonably satisfactory to Buyer so that Seller Parent’s successors and assigns or, as applicable, the transferee of such properties or assets, shall assume all of Seller Parent’s obligations under this Article IX.

ARTICLE X
GENERAL PROVISIONS

Section 10.1        Expenses.

Except as otherwise set forth herein, each party will bear its respective expenses incurred in connection with the preparation, execution, and performance of the Transaction Agreements and the Contemplated Transactions, including all fees and expenses of Representatives. For the avoidance of doubt, all expenses incurred by any member of Seller Group in connection with the Contemplated Transactions shall be paid by Seller or Seller Parent and not by the Company or its Subsidiaries.

Section 10.2        Notices.

Pursuant to the terms of this Section 10.2, all notices, consents, waivers, and other communications under this Agreement must be in writing and will be deemed to have been duly given: (a) when delivered by hand (with written confirmation of receipt), (b) transmitted by facsimile (with confirmation of transmission), (c) by E-mail ((x) having obtained electronic delivery confirmation thereof if during normal business hours of the recipient, except for a notice of change of address, which shall be effective only upon receipt thereof or (y) having obtained written confirmation thereof) or (d) when delivered by a nationally recognized express overnight delivery service (return receipt requested), in each case to the appropriate addresses at the applicable direction set forth below (or to such other addresses and direction as a party may designate by notice to the other parties):

If to Seller Parent or Seller:

Verso Corporation

8540 Gander Creek Drive

Miamisburg, Ohio 45342

Facsimile No.: (937) 242-9328

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

Akin Gump Strauss Hauer & Feld LLP

One Bryant Park

New York, NY 10036

Facsimile No.: (212) 872-1002

If to Buyer:

Pixelle Specialty Solutions LLC

c/o Lindsay Goldberg LLC

630 Fifth Avenue

New York, NY 10111

With a copy (which shall not constitute notice) to:

Cravath, Swaine & Moore LLP

Worldwide Plaza

825 Eighth Avenue

New York, New York 10019

Section 10.3        Waiver.

The parties’ rights and remedies are cumulative and not alternative. A party’s failure or delay in exercising any right, power, or privilege under this Agreement or the documents referred to in this Agreement will not operate as a waiver of such right, power, or privilege, and no single or partial exercise of any such right, power, or privilege will preclude any other or further exercise of such right, power, or privilege or the exercise of any other right, power, or privilege.

Section 10.4        Entire Agreement and Amendments.

The Transaction Agreements (including the exhibits and schedules included herewith and therewith), together with the Confidentiality Agreement, supersede all prior agreements between the parties with respect to their respective subject matter and constitute a complete and exclusive statement of the terms of the agreement between the parties with respect to the respective subject matter. This Agreement may not be amended except by a written agreement executed by the parties hereto. Notwithstanding anything herein to the contrary, no Debt Financing Provision (and no other provision of this Agreement to the extent that an amendment, supplement, change or waiver of such provision would modify the substance of any Debt Financing Provision) may be amended, supplemented, changed or waived in a manner adverse to any Debt Financing Source Related Party without the prior written consent of its related Debt Financing Source.

Section 10.5        Assignments, Successors, and Third-Party Rights.

No party hereto may assign any of its rights or obligations under this Agreement without the prior written consent of each other party hereto; provided, however, that Buyer may, without any other party consent (a) grant a security interest in, and collaterally assign, any of its rights under this Agreement or any related agreement entered into in connection with this Agreement in connection with the Debt Financing, (b) assign any or all of its rights and interests under this Agreement to one or more of its Affiliates (in which case, Buyer nonetheless shall remain responsible for the performance of all of its obligations under this Agreement), (c) designate one or more of its Affiliates to perform its obligations under this Agreement (in which case, Buyer nonetheless shall remain responsible for the performance of all of its obligations under this Agreement), and (d) assign this Agreement to a subsequent purchaser of all or a substantial portion of Buyer (in which case, Buyer nonetheless shall remain responsible for the performance of all of its obligations hereunder). This Agreement will apply to, be binding in all respects upon, and inure to the benefit of the successors and permitted assigns of the parties. Nothing expressed or referred to in this Agreement will be construed to give any Person other than the parties any legal or equitable right, remedy, or claim under or with respect to this Agreement or any provision of this Agreement. This Agreement and all of its provisions and conditions are for the sole and exclusive benefit of the parties and their successors and permitted assigns. Any attempted assignment of this Agreement not in accordance with the terms of this Section 10.5 shall be void. Notwithstanding the foregoing, each of the Debt Financing Source Related Parties shall be an express third-party beneficiary with respect to this Section 10.5, Section 7.3(e), Section 7.3(f), the last sentence of Section 10.4, the last sentence of Section 10.8, Section 10.9, the last sentence of Section 10.10, the last sentence of Section 10.11 and Section 10.18(b) (such provisions, collectively, the “Debt Financing Provisions”) (it being understood that the foregoing provisions may not be amended, supplemented, changed or waived in a manner adverse to any Debt Financing Source Related Party without the prior written consent of its related Debt Financing Source).

Section 10.6        Severability.

Whenever possible, each provision of this Agreement will be interpreted in such a manner as to be effective and valid under applicable Law, but if any term or other provision of this Agreement is held to be invalid, illegal or unenforceable under applicable Law, all other provisions of this Agreement shall remain in full force and effect so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any party. Upon such determination that any term or other provision of this Agreement is invalid, illegal or unenforceable under applicable Law, the parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in an acceptable manner in order that the transactions contemplated hereby are consummated as originally contemplated to the greatest extent possible.

Section 10.7        Section Headings.

The headings of Sections in this Agreement are provided for convenience only and will not affect its construction or interpretation. Unless otherwise specified, references to “Section” or “Sections” refer to the corresponding Section or Sections of this Agreement.

Section 10.8        Governing Law.

All matters arising out of or in connection with this Agreement and its exhibits and schedules (whether arising in contract, tort, equity or otherwise), including the construction and interpretation thereof and the legal relations between the parties hereto, shall be governed by the laws of the State of New York without regard to the location of physical assets or to conflicts of laws principles. Notwithstanding the foregoing, all claims or causes of action (whether arising in contract, tort, equity or otherwise), against any Debt Financing Source Related Party arising out of or relating to (a) the Debt Commitment Letter or (b) this Agreement and its exhibits and schedules, including the construction and interpretation hereof or thereof and the legal relations between the parties hereto or thereto, shall, except as otherwise expressly provided in the Debt Commitment Letter, be governed by the laws of the State of New York without regard to the location of physical assets or to conflicts of laws principles.

Section 10.9        Waiver of Jury Trial.

EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY THAT MAY ARISE UNDER THIS AGREEMENT, OR THE DEBT FINANCING OR THE AGREEMENTS DELIVERED IN CONNECTION THEREWITH OR CONTEMPLATED THEREBY, IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE DEBT FINANCING OR THE AGREEMENTS DELIVERED IN CONNECTION THEREWITH OR CONTEMPLATED THEREBY OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE, AGENT OR ATTORNEY OF THE OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT THE OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (B) IT UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF SUCH WAIVER, (C) IT MAKES SUCH WAIVER VOLUNTARILY, AND (D) IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVER AND CERTIFICATIONS IN THIS SECTION 10.9.

Section 10.10    Submission to Jurisdiction.

Each party irrevocably agrees that any Legal Proceeding arising out of or relating to this Agreement brought by any other party or its successors or assigns shall be brought and determined in any State or federal court in the State of New York, and each of the parties hereby irrevocably submits to the exclusive jurisdiction of the aforesaid courts for itself and with respect to its property, generally and unconditionally, with regard to any such action or proceeding arising out of or relating to this Agreement, the Transaction Agreements and the Contemplated Transactions. Each of the parties agrees not to commence any Legal Proceeding relating thereto except in the courts described above in the State of New York, other than Legal Proceedings in any court of competent jurisdiction to enforce any judgment, decree or award rendered by any such court in New York as described herein. Each of the parties further agrees that notice as provided herein shall constitute sufficient service of process and the parties further waive any argument that such service is insufficient. Each of the parties hereby irrevocably and unconditionally waives, and agrees not to assert, by way of motion or as a defense, counterclaim or otherwise, in any action or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby, (a) any claim that it is not personally subject to the jurisdiction of the courts in New York as described herein for any reason, (b) that it or its property is exempt or immune from jurisdiction of any such court or from any legal process commenced in such courts (whether through service of notice, attachment prior to judgment, attachment in aid of execution of judgment, execution of judgment or otherwise), and (c) that (i) the Legal Proceeding in any such court is brought in an inconvenient forum, (ii) the venue of such Legal Proceeding is improper or (iii) this Agreement, or the subject matter hereof, may not be enforced in or by such courts. Notwithstanding the foregoing, subject to Section 10.18(b), each of the parties hereto agrees that it will not, and it will not permit any of its Affiliates to, bring or support any Legal Proceeding of any kind or description, whether in law or in equity and whether in contract or tort or otherwise, against the Debt Financing Source Related Parties in any way relating to this Agreement or any of the transactions contemplated hereby (including, but not limited to, any dispute arising out of or relating to the Debt Financing or the performance thereof) in any forum other than the United States District Court for the Southern District of New York or the Supreme Court of the State of New York, New York County, located in the Borough of Manhattan or, in either case, any appellate court from any thereof.

Section 10.11    Specific Performance.

The parties hereto agree that if any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached, irreparable damage would occur, no adequate remedy at law would exist and damages would be difficult to determine, and accordingly (a) the parties shall be entitled to injunctive or other equitable relief to prevent breaches of this Agreement and to specific performance of the terms hereof, this being in addition to any other remedy to which they are entitled at law or in equity, (b) the parties waive any requirement for the securing or posting of any bond in connection with the obtaining of any specific performance or injunctive relief, and (c) the parties will waive, in any action for specific performance, the defense of adequacy of a remedy at law. In circumstances where Buyer is obligated to consummate the Contemplated Transactions and the Contemplated Transactions have not been consummated, Buyer expressly acknowledges and agrees that Seller Group and its stockholders shall have suffered irreparable harm, that monetary damages will be inadequate to compensate Seller Group, and that Seller on behalf of itself and Seller Group shall be entitled (in addition to any other remedy that may be available to it whether in law or equity, including monetary damages) to enforce specifically Buyer’s obligations to consummate the Contemplated Transactions, including to cause Buyer to cause the Equity Investors to fund the Equity Financing pursuant to the terms of the Equity Commitment Letter. Seller’s pursuit of specific performance at any time will not be deemed an election of remedies or waiver of the right to pursue any other right or remedy to which Seller Group may be entitled, including the right to pursue remedies for liabilities or damages incurred or suffered by any member of Seller Group and its stockholders. For the avoidance of doubt, under no circumstances shall Seller be permitted or entitled to receive both a grant of specific performance and payment of Buyer Termination Fee. The parties hereto agree that, notwithstanding anything in this Agreement to the contrary, Seller shall be entitled to specific performance (or any other equitable relief) to cause Buyer to effect the Closing on the terms and subject to the conditions in this Agreement, only if: (i) all conditions set forth in Section 6.1 and Section 6.2 (other than those conditions that by their nature are to be satisfied at the Closing or the failure of which to be satisfied is caused by a breach by Buyer of its representations, warranties, covenants or agreements contained in this Agreement) shall have been satisfied (or are capable of being satisfied at the Closing) or (to the extent permissible under applicable Law) waived, (ii) the full amount of the Debt Financing has been funded or would be funded at the Closing, and (iii) Buyer has failed to complete the Closing by the date the Closing is required to have occurred pursuant to this Agreement. Notwithstanding anything herein to the contrary, in no event shall Seller or any member of Seller Group and its stockholders be entitled to or cause Buyer to seek the remedy of specific performance of this Agreement against the Debt Financing Sources, solely in their respective capacities as lenders or arrangers in connection with the Debt Financing.

Section 10.12    Bulk Transfer Laws.

Buyer hereby waives compliance by Seller and its Affiliates with the provisions of any so called “bulk transfer law” of any jurisdiction in connection with the sale of the Interests.

Section 10.13    Disclosure Schedules.

The Disclosure Schedules and the Buyer Disclosure Schedules will be arranged in sections corresponding to the sections contained in Section 1.1 or Article III, as applicable, and any reference in Section 1.1 or Article III, as the case may be, to items “set forth on Schedule” or “Schedule contains” or words of similar effect will be deemed to mean the section or subsection of the Disclosure Schedules or the Buyer Disclosure Schedules, as the case may be, corresponding to the section or subsection of this Agreement where such reference appears. The disclosures in any section or subsection of the Disclosure Schedules and the Buyer Disclosure Schedules will qualify other sections or subsections in Article III if it is reasonably apparent that such disclosure is applicable to such other sections and subsections. No reference to or disclosure of any item or other matter in the Disclosure Schedules or the Buyer Disclosure Schedules shall be construed as an admission or indication that such item or other matter is material (nor shall it establish a standard of materiality for any purpose whatsoever) or that such item or other matter is required to be referred to or disclosed in the Disclosure Schedules or the Buyer Disclosure Schedules, as the case may be. The information set forth in the Disclosure Schedules and the Buyer Disclosure Schedules is disclosed solely for the purposes of this Agreement, and no information set forth therein shall be deemed to be an admission by Seller or Buyer, as the case may be, to any third-party of any matter whatsoever, including any violation of Law or breach of any Contract. The Disclosure Schedules and the Buyer Disclosure Schedules and the information and disclosures contained therein are intended only to qualify and limit the representations, warranties and covenants of Seller or Buyer, as applicable, contained in this Agreement. Nothing in the Disclosure Schedules or the Buyer Disclosure Schedules is intended to broaden the scope of any representation or warranty contained in this Agreement or create any covenant. Matters reflected in the Disclosure Schedules and the Buyer Disclosure Schedules are not necessarily limited to matters required by the Agreement to be reflected in the Disclosure Schedules or the Buyer Disclosure Schedules, as the case may be. Such additional matters are set forth for informational purposes and do not necessarily include other matters of a similar nature.

Section 10.14     No Other Duties.

The only duties and obligations of the parties under this Agreement are as specifically set forth in this Agreement, and no other duties or obligations shall be implied in fact, Law or equity, or under any principle of fiduciary obligation.

Section 10.15    Remedies.

All remedies, either under this Agreement or by Law or otherwise afforded to the parties hereunder, shall be cumulative and not alternative, and any Person having any rights under any provision of this Agreement will be entitled to enforce such rights specifically, to recover damages by reason of any breach of this Agreement and to exercise all other rights granted by Law, equity or otherwise.

Section 10.16    Reliance on Counsel and Other Advisors.

Each party has consulted such legal, financial, technical or other expert as it deems necessary or desirable before entering into this Agreement. Each party represents and warrants that it has read, knows, understands and agrees with the terms and conditions of this Agreement.

Section 10.17    Legal Representation of the Parties.

This Agreement was negotiated by the parties with the benefit of legal representation and any rule of construction or interpretation otherwise requiring this Agreement to be construed or interpreted against any party shall not apply to any construction or interpretation hereof or to any other Transaction Agreement.

Section 10.18    Non-Recourse.

(a)               All claims, obligations, liabilities or causes of action (whether in contract or in tort, in law or in equity, or granted by statute) that may be based upon, in respect of, arise under, out or by reason of, be connected with, or relate in any manner to this Agreement, or the negotiation, execution or performance of this Agreement (including any representation or warranty made in, in connection with or as an inducement to, this Agreement), may be made only against (and are those solely of) the Persons that are expressly identified as parties hereto. No Person who is not a party hereto, including without limitation (a) any director, officer, employee, incorporator, member, partner, manager, stockholder, Affiliate, agent, attorney or representative of, and any financial advisor or lender to, any party hereto, or (b) any director, officer, employee, incorporator, member, partner, manager, stockholder, Affiliate, agent, attorney or representative of, and any financial advisor or lender to, any of the foregoing (collectively, “Non-Party Affiliates”), shall have any liability (whether in contract or in tort, in law or in equity, or granted by statute) for any claims, causes of action, obligations, or liabilities arising under, out of, in connection with, or related in any manner to this Agreement or based on, in respect of, or by reason of this Agreement or its negotiation, execution, performance or breach; and, to the maximum extent permitted by law, each party hereby waives and releases all such liabilities, claims, causes of action and obligations against any such Non-Party Affiliates. Without limiting the foregoing, to the maximum extent permitted by law, each party hereto hereby waives and releases any and all rights, claims, demands or causes of action that may otherwise be available at law or in equity, or granted by statute, to avoid or disregard the entity form of a party hereto or otherwise impose liability of a party hereto or any Non-Party Affiliate, whether granted by statute or based on theories of equity, agency, control, instrumentality, alter ego, domination, sham, single business enterprise, piercing the veil, unfairness, undercapitalization, or otherwise.

(b)               Notwithstanding anything to the contrary, no Debt Financing Source Related Party shall have any liability to Seller or any of its Affiliates for any obligations or liabilities of Buyer or for any claim (whether at law or equity, in tort, contract or otherwise) based on, in respect of, or by reason of, the transactions contemplated hereby or in respect of any oral representations made or alleged to be made in connection herewith. In no event shall Seller or any of its Affiliates (i) seek to enforce this Agreement against, make or support any claims for breach of this Agreement against, or seek to recover monetary damages from, any Debt Financing Source Related Party or (ii) seek to enforce the Debt Financing or the Debt Commitment Letter against, make or support any claims for breach of the Debt Financing or the Debt Commitment Letter against, or seek to recover monetary damages from, or otherwise sue, any Debt Financing Source Related Party for any reason, including in connection with the Debt Financing or the Debt Commitment Letter or the obligations of the Debt Financing Source Related Parties thereunder. For the avoidance of doubt, this Section 10.18(b) does not limit or affect any rights or remedies that Buyer may have against the Debt Financing Source Related Parties pursuant to the Debt Commitment Letter.

Section 10.19    Counterparts and Delivery.

This Agreement may be executed in one or more counterparts, each of which will be deemed to be an original copy of this Agreement and all of which, when taken together, will be deemed to constitute one and the same agreement. Any signed counterpart of this Agreement may be delivered by facsimile or other form of electronic transmission (e.g., pdf), with the same legal force and effect as delivery of an originally signed agreement.

Section 10.20    Exhibits and Schedules.

The exhibits and schedules hereto shall be construed with and be an integral part of this Agreement to the same extent as if the same had been set forth verbatim herein.

(Signature pages follow)

IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first set forth above.

[Signature Page to Membership Interest Purchase Agreement]

[Signature Page to Membership Interest Purchase Agreement]