Exhibit 2.1

Business Combination AGREEMENT

by and among

Collier Creek Holdings,

UTZ BRANDS HOLDINGS, LLC,

SERIES U OF UM PARTNERS, LLC

AND

Series R of UM Partners, LLC

Dated as of JUNE 5, 2020

TABLE OF CONTENTS

EXHIBITS

BUSINESS COMBINATION AGREEMENT

This Business Combination Agreement (this “Agreement”) is made and entered into as of June 5, 2020 (the “Effective Date”), by and among (i) Collier Creek Holdings, a Cayman Islands exempted company (which shall domesticate as a Delaware corporation on or before Closing in accordance with the terms of this Agreement, the “Buyer”), (ii) Utz Brands Holdings, LLC, a Delaware limited liability company (the “Company”), (iii) Series U of UM Partners, LLC, a series of a Delaware limited liability company (“Series U”) and (iv) Series R of UM Partners, LLC, a series of a Delaware limited liability company (“Series R” and, collectively with Series U, “Sellers”). Each of the Buyer and the Company and each Seller is also referred to herein as a “Party” and, collectively, as the “Parties.”

RECITALS

A.          whereas, as of the Effective Date, Series U is the record and beneficial owner of eighty-five percent (85%) of the Company Interests and Series R is the record and beneficial owner of the remaining fifteen percent (15%) of the Company Interests, such that together Sellers hold all of the issued and outstanding Company Interests.

B.          WHEREAS, prior to the Effective Date, the Buyer has entered into forward purchase agreements with each of the Sponsor and the Buyer’s independent directors (the “Forward Purchase Agreements”), for an aggregate investment of thirty-five million dollars ($35,000,000) by the Sponsor and the Buyer’s independent directors in exchange for the Forward Purchase Securities, which investment shall close immediately prior to the Closing, in accordance with the terms of the Forward Purchase Agreements.

C.          WHEREAS, immediately prior to the Closing, on the Closing Date, (a) the Buyer will domesticate as a Delaware corporation in accordance with Section 388 of the Delaware General Corporation Law (the “DGCL”) and de-register as a Cayman Islands exempted company in accordance with Section 206 of the Cayman Islands Companies Law (2020 Revision), (b) pursuant to such domestication, (i) the Buyer Certificate of Incorporation in the form attached hereto as Exhibit A (the “Buyer Certificate of Incorporation”) will be adopted and (ii) the Buyer Bylaws in the form attached hereto as Exhibit B will be adopted by the Buyer Board that is in existence immediately following such domestication, and (c) pursuant to such domestication, the Buyer will obtain a certificate of de-registration from the Registrar of Companies of the Cayman Islands, and will complete and make all filings required to be made with the SEC and the Stock Exchange to list the Buyer Class A Common Stock on the Stock Exchange (the foregoing clauses (a), (b) and (c) shall collectively be referred to as the “Domestication”).

D.          WHEREAS, pursuant to the Domestication, the Buyer will change its name from “Collier Creek Holdings” to “Utz Brands, Inc.” (the “Name Change”).

E.          WHEREAS, simultaneously with the Closing, Sellers shall amend and restate the Company’s LLCA in the form attached hereto as Exhibit C (the “Company A&R LLCA”) to, among other things, increase the capitalization of the Company to permit the issuance and ownership of the Equity Interests in the Company set forth in this Agreement and the Company A&R LLCA (collectively, all the Equity Interests in the Company to be issued as of the Closing pursuant to the Company A&R LLCA, the “Company Units”), amend and restate the rights and preferences of the Company Interests and set forth the rights and preferences of the Company Units, and establish the ownership of the Company Units by the Persons indicated in the Company A&R LLCA, in each case, as set forth in the Company A&R LLCA.

F.          WHEREAS, simultaneously with the Closing, Sellers and the Buyer will enter into a Tax Receivable Agreement in the form attached hereto as Exhibit D (the “Tax Receivable Agreement”).

G.          WHEREAS, simultaneously with the Closing, (a) Sellers, the Sponsor, the Buyer and the other parties thereto will enter into an Investor Rights Agreement in the form attached hereto as Exhibit E (the “Investor Rights Agreement”), and (b) Sellers, the Sponsor, the Buyer and the other parties thereto will enter into a Standstill Agreement in the form attached hereto as Exhibit N (the “Standstill Agreement”).

H.          WHEREAS, effective as of immediately following the Closing, the Buyer Board that is in existence immediately following the Closing, by unanimous written action of such Buyer Board executed simultaneously with the Closing, will adopt both the Dividend Policy in the form attached hereto as Exhibit F (the “Pubco Dividend Policy”) and the Distribution Policy of the Company in the form attached hereto as Exhibit G (the “Company Distribution Policy”).

I.           WHEREAS, the Buyer, the Sponsor and the other parties thereto entered into a side letter, in a form acceptable to the Sellers, delivered to Sellers simultaneously with the execution of this Agreement (the “Sponsor Side Letter”) pursuant to which the holders of Buyer Class B Ordinary Shares agree to receive two million (2,000,000) shares of Buyer Class B Common Stock in exchange for two million (2,000,000) Buyer Class B Ordinary Shares upon consummation of the transactions contemplated by this Agreement on a pro rata basis among such holders (the “Restricted Sponsor Shares”) in accordance with the terms and conditions set forth in the Sponsor Side Letter.

J.          WHEREAS, simultaneously with the execution of this Agreement, the Buyer, the Sellers and BSOF SN, LLC (“BSOF”) entered into a purchase agreement (the “BSOF Purchase Agreement”) pursuant to which, simultaneously with and subject to the Closing, the Buyer will purchase all of the preferred equity interests held by BSOF (the “BSOF Preferred Interests”) in Sellers (the “BSOF Preferred Equity Purchase”) and all of the common equity interests held by BSOF (the “BSOF Common Interests”) in the Sellers (the “BSOF Common Equity Purchase”) in exchange for the consideration set forth in the BSOF Purchase Agreement (the “BSOF Consideration”).

K.          WHEREAS, simultaneously with the Closing, Sellers and the Buyer will enter into a Redemption Agreement in the form attached hereto as Exhibit H (the “Redemption Agreement”), pursuant to which the Sellers will redeem the BSOF Common Interests and BSOF Preferred Interests purchased by the Buyer pursuant to the BSOF Purchase Agreement in exchange for the Exchanged Company Units (the “Redemption”).

L.          WHEREAS, upon the terms and subject to the conditions set forth in this Agreement, the Buyer wishes to acquire the Acquired Company Units and Acquired Restricted Company Units as follows:

a.          18,189,708.43 Acquired Company Units and 634,063.91 Acquired Restricted Company Units received from the Sellers pursuant to the Redemption (collectively, the “Exchanged Company Units”) in exchange for the redemption of the BSOF Common Interests and BSOF Preferred Interests purchased by Buyer pursuant to the BSOF Purchase Agreement;

b.          33,934,138.06 Acquired Company Units less the number of shares of Net Redeemed Stock, if any, and 1,182,889.34 Acquired Restricted Company Units from the Company (collectively, after such reduction for the number of shares of Net Redeemed Stock, the “Issued Company Units”) in exchange for the Contribution Amount; and

c.          5,251,153.51 Acquired Company Units and 183,046.75 Acquired Restricted Company Units (collectively, the “Assigned Company Units”) purchased from Sellers in exchange for the Net Cash Consideration, that number of shares of Buyer Class V Voting Stock equal to the number of Retained Company Units and certain rights under the Tax Receivable Agreement. Together, the Exchanged Company Units, the Issued Company Units and the Assigned Company Units shall equal the total amount of the Acquired Company Units and Acquired Restricted Company Units.

M.          WHEREAS, as a condition to the consummation of the transactions contemplated by this Agreement and by the Ancillary Agreements, the Buyer shall provide an opportunity to the Buyer Shareholders to exercise their rights to participate in the Buyer Share Redemption, and on the terms and subject to the conditions and limitations, set forth in this Agreement and the applicable Buyer Governing Documents in conjunction with, inter alia, obtaining approval from the Buyer Shareholders for the transactions contemplated by this Agreement and by the Ancillary Agreements.

NOW, THEREFORE, in consideration of the foregoing and the respective representations, warranties, covenants and agreements set forth in this Agreement, and subject to the terms and conditions set forth in this Agreement, the Parties, intending to be legally bound, hereby agree as follows:

Article I
CERTAIN DEFINITIONS

Section 1.1          Certain Definitions. For purposes of this Agreement, capitalized terms used in this Agreement but not otherwise defined herein shall have the meanings set forth below.

“Acquired Company Units” means the sum of the number of Exchanged Company Units plus the number of Issued Company Units plus the number of Assigned Company Units, in each case, that are Common Units (as defined in the Company A&R LLCA).

“Acquired Restricted Company Units” means 2,000,000 Company Units which are Restricted Common Units (as defined in the Company A&R LLCA).

“Affiliate” of any particular Person means any other Person controlling, controlled by or under common control with such Person, where “control” means the possession, directly or indirectly, of the power to direct the management and policies of a Person whether through the ownership of voting securities, its capacity as a sole or managing member or otherwise.

“Ancillary Agreement” means the Forward Purchase Agreements, the Company A&R LLCA, the Tax Receivable Agreement, the Investor Rights Agreement, the Standstill Agreement, the BSOF Purchase Agreement, the Redemption Agreement, the Lissette Offer Letter, the Subscription Agreements for the Permitted Equity Financing, the Sponsor Side Letter and each other agreement, instrument and certificate required by this Agreement to be executed by the Buyer, the Company or any of the Sellers pursuant to this Agreement, in each case only as applicable to the relevant party or parties to such Ancillary Agreement, as indicated by the context in which such term is used.

“Anti-Corruption Laws” means applicable Laws related to corruption and bribery, including the U.S. Foreign Corrupt Practices Act of 1977, the Canada Corruption of Foreign Public Officials Act of 1999, legislation adopted in furtherance of the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, and any other applicable Law that prohibits bribery, corruption, fraud or other improper payments.

“Available Closing Date Equity” means, as of immediately prior to the Closing, an aggregate amount equal to the sum of (without duplication) (a) the cash in the Trust Account, less amounts required for the Buyer Share Redemptions plus (b) the aggregate proceeds received by the Buyer from the Permitted Equity Financing pursuant to Section 7.15 plus (c) the aggregate gross proceeds received by the Buyer from the sale of the Forward Purchase Securities pursuant to the Forward Purchase Agreements.

“Brand Names” means (a) the following Trademarks: UTZ, ZAPP’S, DIRTY, BACHMAN, GOOD HEALTH, GOLDEN FLAKE, BOULDER CANYON, TORTIYAHS, and SNIKIDDY, in each case either alone or in combination with other words, graphics, or designs, and any variation, derivative, translation, or transliteration thereof, (b) rights of publicity in the Utz surname, and (c) any other Trademarks used by any Utz Company as brand names across product lines in its operations as conducted on the Closing Date, in each case used by any Utz Company in connection with the advertising, marketing, promotion, manufacture, offering for sale, sale, or distribution of salty snack foods.

“Business Combination” has the meaning ascribed to such term in the applicable Buyer Governing Documents as of the Effective Date.

“Business Day” means any day except a Saturday, a Sunday or any other day on which commercial banks are required or authorized to close in the State of New York.

“Buyer Board” means, at any time, the board of directors of the Buyer.

“Buyer Bylaws” means the bylaws of the Buyer following the Domestication in the form attached hereto as Exhibit B.

“Buyer Capital Stock” means (a) as of the Effective Date, the Buyer Class A Ordinary Shares and the Buyer Class B Ordinary Shares and (b) following the Domestication, the Buyer Class A Common Stock, the Buyer Class B Common Stock and the Buyer Class V Voting Stock.

“Buyer Class A Common Stock” means, following the Domestication, the Class A common stock of the Buyer, par value one ten-thousandth of one dollar ($0.0001) per share, authorized pursuant to the Buyer Certificate of Incorporation.

“Buyer Class A Ordinary Shares” means, prior to the Domestication, the Class A ordinary shares of the Buyer, par value one ten-thousandth of one dollar ($0.0001) per share.

“Buyer Class B Common Stock” means, following the Domestication, the Class B common stock of the Buyer, par value one ten-thousandth of one dollar ($0.0001) per share, authorized pursuant to the Buyer Certificate of Incorporation.

“Buyer Class B Ordinary Shares” means, prior to the Domestication, the Class B ordinary shares of the Buyer, par value one ten-thousandth of one dollar ($0.0001) per share.

“Buyer Class V Voting Stock” means, following the Domestication, the Class V common stock of the Buyer, par value one ten-thousandth of one dollar ($0.0001) per share, authorized pursuant to the Buyer Certificate of Incorporation.

“Buyer Competing Transaction” means any written Contract, arrangement or understanding which was mutually negotiated by the Sponsor or the Buyer and a third party and which is executed and delivered by the Sponsor or the Buyer (but excluding any non-disclosure or confidentiality agreement), in each case relating to a transaction involving, directly or indirectly, any merger or consolidation with or acquisition of, purchase of all or substantially all of the assets or equity of, consolidation or similar business combination with or other transaction that would constitute a Business Combination with or involving the Buyer (or the Buyer Shareholders) and a third party, other than the Sellers or the Utz Companies.

“Buyer Disclosure Letter” means the Disclosure Letter delivered by the Buyer to Sellers concurrently with the execution and delivery of this Agreement.

“Buyer Executives” means Chinh Chu, Roger Deromedi, Jason Giordano and Craig Steeneck.

“Buyer Fundamental Representations” means the representations and warranties set forth in Section 5.1 (Organization; Authority; Enforceability), Section 5.2 (Capitalization), Section 5.3 (Brokerage), Section 5.4 (Trust Account) and Section 5.12 (Investment Intent).

“Buyer Governing Documents” means, at any time prior to the Domestication, the Buyer Memorandum and Articles and, at any time following the Domestication, the Buyer Certificate of Incorporation and the Buyer Bylaws, as in effect at such time.

“Buyer Indemnified Parties” means Buyer and its Affiliates (including, following the Closing, the Utz Companies) and their respective equityholders (including the Sponsor), officers, directors, managers, employees, agents, partners, members, counsel, accountants, financial advisors, engineers, consultants, other advisors, successors and assigns.

“Buyer Loss” means a Loss covered under the R&W Insurance Policy to the extent constituting a Loss directly incurred by Buyer (and not incurred by an Utz Company).

“Buyer Material Adverse Effect” means any event, circumstance or state of facts that, individually or in the aggregate, has had or would be reasonably expected to have a material and adverse effect upon the ability of the Buyer to perform its obligations and to consummate the transactions contemplated by this Agreement and the Ancillary Agreements.

“Buyer Memorandum and Articles” means the amended and restated memorandum and articles of association dated October 4, 2018 of the Buyer, as in effect on the Effective Date.

“Buyer SEC Filings” means the forms, reports, schedules, registration statements and other documents filed by the Buyer with the SEC, including the Form S-4, Additional Buyer Filings, the Signing Form 8-K and the Closing Form 8-K, and all amendments, modifications and supplements thereto.

“Buyer Shareholder Meeting” means a general meeting of the Buyer Shareholders to vote on the Buyer Shareholder Voting Matters.

“Buyer Shareholder Voting Matters” means, collectively, proposals to approve (a) the adoption of this Agreement and the transactions contemplated by this Agreement, (b) certain differences between the Buyer Memorandum and Articles and the proposed Buyer Certificate of Incorporation and proposed Buyer Bylaws, (c) the EIP, (d) the Domestication, (e) the election of the members of the Buyer Board effective as of the Closing and (f) any other proposals that are required for the consummation of the transactions contemplated by this Agreement that are submitted to, and require the vote of, the Buyer Shareholders in the Form S-4.

“Buyer Shareholders” means the holders of the Buyer Class A Ordinary Shares and Buyer Class B Ordinary Shares.

“Buyer Share Redemption” means the election of an eligible holder of the Buyer Class A Ordinary Shares (as determined in accordance with the applicable Buyer Governing Documents and the Trust Agreement) to redeem all or a portion of such holder’s Buyer Class A Ordinary Shares (or Buyer Class A Common Stock following the Domestication), at the per-share price, payable in cash, equal to such holder’s pro rata share of the Trust Account (as determined in accordance with the applicable Buyer Governing Documents and the Trust Agreement) in connection with the Buyer Shareholder Meeting.

“Cash Consideration” means $60 million less the purchase price for the BSOF Common Interests paid pursuant to the BSOF Purchase Agreement.

“Clayton Act” means the Clayton Act of 1914.

“Code” means the Internal Revenue Code of 1986, and any reference to any particular Code section shall be interpreted to include any revision of or successor to that Section regardless of how numbered or classified.

“Common Stock Price” means, at Closing (and for all purposes with respect to the Closing Statement), ten dollars ($10.00), and after Closing, the Class A 5-Day VWAP (as defined in the A&R LLCA).

“Company Employee Benefit Plan” means each “employee benefit plan” (as such term is defined in Section 3(3) of ERISA, whether or not subject to ERISA) and each equity or equity-based compensation, retirement, pension, savings, profit sharing, bonus, incentive, severance, separation, employment, individual consulting or individual independent contractor, change in control, retention, deferred compensation, vacation, paid time off, medical, dental, life or disability, retiree or post-termination health or welfare, salary continuation, fringe or other material compensatory or benefit plan, program, policy, arrangement or Contract, in each case, that is maintained, sponsored or contributed to (or required to be contributed to) by any of the Utz Companies or under or with respect to which any of the Utz Companies has any Liability, but in each case, other than a multiemployer plan as defined in Section 3(37) of ERISA.

“Company Fundamental Representations” means the representations and warranties set forth in Section 3.1 (Organization; Authority; Enforceability), Section 3.3 (Capitalization), and Section 3.13 (Brokerage).

“Company Interests” means the issued and outstanding limited liability company membership interests of the Company as of the Effective Date.

“Company’s LLCA” means the Second Amended and Restated Limited Liability Company Agreement of the Company, effective as of December 31, 2019.

“Company and Sellers’ Disclosure Letter” means the Disclosure Letter delivered by Sellers and the Company to the Buyer concurrently with the execution and delivery of this Agreement.

“Company Subsidiaries” means the direct and indirect Subsidiaries of the Company.

“Competing Transaction” means (a) any transaction involving, directly or indirectly, either Seller or any Utz Company, which upon consummation thereof, would result in either Seller or any Utz Company entity becoming a public company, (b) any direct or indirect sale (including by way of a merger, consolidation, license, transfer, sale, option, right of first refusal with respect to a sale or similar preemptive right with respect to a sale or other business combination or similar transaction) of any material portion of the assets (including Intellectual Property) or business of either Seller or the Utz Companies, taken as a whole (but excluding sales of inventory, sales of distribution routes to independent operators (and related notes sales) or other transactions in the Ordinary Course Of Business), (c) any direct or indirect sale (including by way of an issuance, dividend, distribution, merger, consolidation, license, transfer, sale, option, right of first refusal with respect to a sale or similar preemptive right with respect to a sale or other business combination or similar transaction) of equity, voting interests or debt securities of either Seller or any Utz Company (excluding any such sale between or among the Utz Companies), or rights, or securities that grant rights, to receive the same including profits interests, phantom equity, options, warrants, convertible or preferred stock or other equity-linked securities (except, in each case, as contemplated by this Agreement), (d) any direct or indirect acquisition (whether by merger, acquisition, share exchange, reorganization, recapitalization, joint venture, consolidation or similar business combination transaction), but excluding procurement of assets in the Ordinary Course Of Business (but not the acquisition of a Person or business via an asset transfer), by either Seller or any Utz Company of the equity or voting interests of, or a material portion of the assets or business of, a third party (except, in each case, as contemplated by this Agreement), or (e) any liquidation or dissolution (or the adoption of a plan of liquidation or dissolution) of any Utz Company (except to the extent contemplated by the terms of this Agreement), in all cases of clauses (a) through (e), either in one or a series of related transactions, where such transaction(s) is to be entered into with a Competing Buyer (including any Interested Party or any representatives of any Interested Party).

“Confidentiality Agreement” means that certain Confidentiality Agreement, dated as of May 3, 2019 between the Buyer and Utz Quality Foods, LLC.

“Contract” means any written or oral contract, agreement, license or Lease.

“Contribution Amount” means the Available Closing Date Equity minus the BSOF Consideration minus the Net Cash Consideration.

“Disclosure Letters” means the Buyer Disclosure Letter and the Company and Sellers’ Disclosure Letter.

“Environmental Laws” means all Laws concerning pollution, human health or safety, Hazardous Materials or protection of the environment.

“Equity Financing Sources” means Persons that have entered into Subscription Agreements to purchase for cash Buyer Class A Common Stock from the Buyer on or before the Closing pursuant to a Permitted Equity Financing.

“Equity Interests” means, with respect to any Person, all of the shares of capital stock, or equity of (or other ownership or profit interests in) such Person, all of the warrants, options or other rights for the purchase or acquisition from such Person of shares of capital stock or equity of (or other ownership or profit interests in) such Person, all of the securities convertible into or exchangeable for shares of capital stock or equity of (or other ownership or profit interests in) such Person or warrants, rights or options for the purchase or acquisition from such Person of such shares or equity (or such other interests), restricted stock awards, restricted stock units, equity appreciation rights, phantom equity rights (including, with respect to Utz Quality Foods, LLC, the Phantom Units), profit participation and all of the other ownership or profit interests of such Person (including partnership or member interests therein), whether voting or nonvoting.

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

“Executives” means Dylan Lissette, Cary Devore, Mark Schreiber, Tucker Lawrence, Ajay Kataria and Todd Staub.

“Export Control Laws” means export, import, deemed export, transfer, and retransfer controls contained in the U.S. Export Administration Regulations.

“Extended Lookback Date” means the date which is five (5) years prior to the Effective Date; provided that (a) for any representations and warranties related to the assets, Liabilities, employees, business of, or otherwise related to, Kennedy Endeavors, LLC for the period commencing on the date five (5) years prior to the Effective Date and ending on October 21, 2019, such representations and warranties shall be subject to the Knowledge of the Company, (b) for any representations and warranties related to the assets, Liabilities, employees, business of, or otherwise related to, Kitchen Cooked, Inc. and its Subsidiary for the period commencing on the date five (5) years prior to the Effective Date and ending on December 30, 2019, such representations and warranties shall be subject to the Knowledge of the Company, (c) for any representations and warranties related to the assets, Liabilities, employees, business of, or otherwise related to, Inventure Foods, Inc. and its Subsidiaries for the period commencing on the date five (5) years prior to the Effective Date and ending on December 14, 2017, such representations and warranties shall be subject to the Knowledge of the Company; (d) for any representations and warranties related to the assets, Liabilities, employees, business of, or otherwise related to, Golden Flake Snack Foods, Inc. for the period commencing on the date five (5) years prior to the Effective Date and ending on September 30, 2016, such representations and warranties shall be subject to the Knowledge of the Company; and (e) for any representations and warranties related to the assets, Liabilities, employees, business of, or otherwise related to, Snikiddy, LLC for the period commencing on the date five (5) years prior to the Effective Date and ending on November 13, 2015, such representations and warranties shall be subject to the Knowledge of the Company.

“Family Members” means (a) (i) Michael Rice, (ii) the spouse and lineal descendants (whether natural or adopted) of Michael Rice, (iii) any spouse of any of the individuals described in clause (ii), and (iv) a trust solely for the benefit of any individuals described in the foregoing clauses (i) through (iii); and (b) any siblings or parents of any of the individuals described in clause (a)(iii); provided, that, with respect any representation or warranty related to an Interested Party or Family Member, clause (b) shall be limited to the Knowledge of the Company.

“Federal Trade Commission Act” means the Federal Trade Commission Act of 1914.

“Flow-Thru Entity” means (a) any entity, plan or arrangement that is treated for income Tax purposes as a partnership, (b) a “controlled foreign corporation” within the meaning of Code Section 957, (c) a “specified foreign corporation” within the meaning of Code Section 965 or (d) a “passive foreign investment company” within the meaning of Code Section 1297.

“Food Laws” means all Laws governing the formulation, manufacturing, packaging, packing, holding, importing, exporting, transporting, distributing, sale, labeling, advertising and marketing of food, including the Federal Food, Drug and Cosmetic Act, the Federal Meat Inspection Act, the Poultry Products Inspection Act, the Egg Products Inspection Act, the Organic Foods Production Act of 1990, the Federal Trade Commission Act, California’s Safe Drinking Water and Toxic Enforcement Act of 1986, state and local food codes, and any other similar Law and any implementing regulation of the United States Food and Drug Administration (the “FDA”), an agency of the United States Department of Agriculture (the “USDA”), the Federal Trade Commission (the “FTC”), the California Office of Environmental Health Hazard Assessment, and any other comparable Governmental Entity.

“Form S-4” means the Form S-4 containing a proxy statement/prospectus to be filed with the SEC by the Buyer in connection with the Buyer Shareholder Meeting.

“Forward Purchase Securities” means an aggregate of three million five hundred thousand (3,500,000) Buyer Class A Ordinary Shares, plus an aggregate of one million one hundred sixty six thousand six hundred and sixty six (1,166,666) Buyer Warrants to purchase one (1) Buyer Class A Share at eleven dollars and fifty cents ($11.50) per share.

“Fraud” means actual and intentional common law fraud committed by a Party with respect to the making of the representations and warranties set forth in Article III, Article IV or Article V, as applicable; provided that such fraud will only be deemed to exist if, in the case of fraud by the Company, the Executives, in the case of fraud by Sellers, the Seller Executives or, in the case of fraud by Buyer, the Buyer Executives, had actual knowledge that the representations and warranties made by such Party (as qualified by the applicable Disclosure Letter) were false when made with the express intention to induce the other Party to detrimentally rely thereon.

“GAAP” means United States generally accepted accounting principles, consistently applied.

“Governing Documents” means (a) in the case of a corporation, its certificate of incorporation (or analogous document) and bylaws; (b) in the case of a limited liability company, its certificate of formation (or analogous document) and limited liability company operating agreement; or (c) in the case of a Person other than a corporation or limited liability company, the documents by which such Person (other than an individual) establishes its legal existence or which govern its internal affairs.

“Governmental Entity” means any nation or government, any state, province or other political subdivision thereof, any entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government, including any court, arbitrator (public or private) or other body or administrative, regulatory or quasi-judicial authority, agency, department, board, commission or instrumentality of any federal, state, local or foreign jurisdiction.

“Hazardous Materials” means all substances, materials or wastes regulated by, or for which Liability or standards of conduct are imposed pursuant to, Environmental Laws, including petroleum products or byproducts, asbestos, polychlorinated biphenyls, radioactive materials and per- and polyfluoroalkyl substances.

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

“Income Tax Returns” means Tax Returns relating to Income Taxes.

“Income Taxes” means Taxes (a) imposed on, or with reference to, net income or gross receipts, or (b) imposed on, or with reference to, multiple bases including net income or gross receipts.

“Indebtedness” means, with respect to a Party, without duplication: (a) all indebtedness for borrowed money or indebtedness issued or incurred in substitution or exchange for indebtedness for borrowed money; (b) all indebtedness evidenced by any note, bond, debenture, mortgage or other debt instrument or debt security; (c) all indebtedness for borrowed money of any Person for which such Party has guaranteed payment; (d) all capitalized Lease obligations or obligations required to be capitalized in accordance with GAAP; (e) any Liabilities in respect of deferred purchase price for property or services with respect to which such Person is liable, contingently or otherwise, as obligor or otherwise for additional purchase price (excluding any purchase commitments for capital expenditures or otherwise incurred in the Ordinary Course of Business); (f) reimbursement obligations under any drawn letters of credit; and (g) obligations under derivative financial instruments, including hedges, currency and interest rate swaps and other similar instruments; provided, however, that, in the case of the Utz Companies, ‘Indebtedness’ shall not include (y) any Indebtedness between or among the Company and any of its Subsidiaries that are directly or indirectly wholly-owned by the Company, or (z) any Indebtedness related to the IO Contracts.

“Intellectual Property” means all of the following in any jurisdiction throughout the world: (a) all inventions (whether patentable or unpatentable and whether or not reduced to practice) and invention disclosures, all improvements thereto, and all patents, utility models and industrial designs and all applications for any of the foregoing, together with all reissuances, provisionals, continuations, continuations-in-part, divisions, extensions, renewals and reexaminations thereof, (b) all trademarks, service marks, certification marks, trade dress, logos, slogans, trade names, corporate and business names, and other indicia of source, including all goodwill associated therewith, and all applications, registrations, and renewals in connection therewith (collectively, “Trademarks”), (c) Internet domain names and social media accounts; (d) all works of authorship, copyrightable works, all copyrights and rights in databases, and all applications, registrations, and renewals in connection therewith and all moral rights associated with any of the foregoing, (e) all mask works and all applications, registrations, and renewals in connection therewith, (f) all trade secrets and confidential business information (including confidential ideas, research and development, know-how, formulas, compositions, algorithms, source code, data analytics, manufacturing and production processes and techniques, technical data and information, designs, drawings, specifications, customer and supplier lists, pricing and cost information, and business and marketing plans and proposals), and (g) all Software.

“Interested Party” means Sellers and any direct or indirect equityholder of either Seller, any of their respective Affiliates (other than any Utz Company), and any Family Member.

“IO Contract” means any (a) Contract between any Utz Company and any independent operator for the sale or distribution of products in specified geographic territories, (b) Contract in which an Utz Company grants the exclusive right (subject to certain exceptions) to sell or distribute products in geographic territories to any independent operator, or (c) Indebtedness with respect to independent operators that arises from clauses (a) or (b).

“IT Assets” means Software, systems, servers, computers, hardware, firmware, middleware, networks, data communications lines, routers, hubs, switches and all other information technology equipment, and all associated documentation, in each case, used or held for use in the operation of the Utz Companies.

“Knowledge” (a) as used in the phrase “to the Knowledge of the Company” or phrases of similar import means the actual knowledge of any of the Executives, (b) as used in the phrase “to the Knowledge of Sellers” or phrases of similar import means the actual knowledge of any of the Seller Executives, including after reasonable due inquiry of Grant Thornton LLP with respect to Tax matters of the Sellers, and (c) as used in the phrase “to the Knowledge of the Buyer” or phrases of similar import means the actual knowledge of the Buyer Executives.

“Laws” means all laws, acts, statutes, constitutions, treaties, ordinances, codes, rules, regulations and rulings of a Governmental Entity, including common law. All references to “Laws” shall be deemed to include any amendments thereto, and any successor Law, unless the context otherwise requires.

“Leased Real Property” means all leasehold or subleasehold estates and other rights to use or occupy any land, buildings, structures, improvements, fixtures or other interest in real property held by the Utz Companies.

“Leases” means all leases, subleases, licenses, concessions and other Contracts pursuant to which any Utz Company holds any Leased Real Property.

“Liability” or “Liabilities” means any and all debts, liabilities and obligations, whether accrued or fixed, known or unknown, absolute or contingent, matured or unmatured or determined or determinable.

“Liens” means, with respect to any specified asset, any and all liens, mortgages, hypothecations, claims, encumbrances, options, pledges, licenses, rights of priority, easements, covenants, restrictions and security interests thereon.

“Lookback Date” means the date which is two (2) years prior to the Effective Date; provided that (a) for any representations and warranties related to the assets, Liabilities, employees, business of, or otherwise related to, Kennedy Endeavors, LLC for the period commencing on the date two (2) years prior to the Effective Date and ending on October 21, 2019, such representations and warranties shall be subject to the Knowledge of the Company, and (b) for any representations and warranties related to the assets, Liabilities, employees, business of, or otherwise related to, Kitchen Cooked, Inc. and its Subsidiary for the period commencing on the date two (2) years prior to the Effective Date and ending on December 30, 2019, such representations and warranties shall be subject to the Knowledge of the Company.

“Losses” means all losses, damages, judgments, awards, Taxes, penalties, settlements and reasonable expenses (including reasonable attorneys’ fees); provided that “Losses” include any punitive damages solely to the extent payable to a third party in connection with a third party claim.

“Material Adverse Effect” means any event, circumstance or state of facts that, individually or in the aggregate, has had or would reasonably be expected to have, a material and adverse effect upon (a) the business, results of operations or financial condition of the Utz Companies, taken as a whole, or (b) the ability of Sellers or the Utz Companies, taken as a whole, to perform their respective obligations and to consummate the transactions contemplated by this Agreement and the Ancillary Agreements; provided, however, that, with respect to the foregoing clause (a), none of the following (or the effect of the following), alone or in combination, will constitute a Material Adverse Effect, or will be considered in determining whether a Material Adverse Effect has occurred: (i) changes that are the result of factors generally affecting the industries or markets in which the Utz Companies operate; (ii) the public announcement or pendency of the transactions contemplated by this Agreement; (iii) changes in Law or GAAP or the interpretation thereof, in each case effected after the Effective Date; (iv) any failure of any Utz Company to achieve any projected revenue, earnings, expense, sales or other projections, forecasts, predictions or budgets prior to the Closing (it being understood that the underlying event, circumstance or state of facts giving rise to such failure that are not otherwise excluded from the definition of Material Adverse Effect may be taken into account in determining whether a Material Adverse Effect has occurred); (v) changes that are the result of economic factors affecting the national, regional or world economy or financial markets; (vi) any change in the financial, banking, or securities markets; (vii) any strike, embargo, labor disturbance, riot, earthquake, hurricane, tsunami, tornado, flood, mudslide, wild fire, other weather-related or meteorological event, pandemic, epidemic, disease outbreak (including COVID-19) or other natural disaster or act of god; (viii) any national or international political conditions in any jurisdiction in which the Utz Companies conduct business; (ix) the engagement by the United States in hostilities or the escalation thereof, whether or not pursuant to the declaration of a national emergency or war, or the occurrence or the escalation of any military or terrorist attack upon the United States, or any United States territories, possessions or diplomatic or consular offices or upon any United States military installation, equipment or personnel; (x) any consequences arising from any action by a Party required by this Agreement (other than the Company’s compliance with Section 6.1(a) hereof, except as a result of the failure of Buyer to consent to an action following request for such consent by such Party in accordance with this Agreement); or (xi) any consequences arising from any action requiring taken (or omitted to be taken) by either Seller or any Utz Company at the written request of Buyer; provided, however, that any event, circumstance or state of facts resulting from a matter described in any of the foregoing clauses (i), (iii), (v), (vi), (vii) and (ix) may be taken into account in determining whether a Material Adverse Effect has occurred to the extent such event, circumstance or state of facts has a material and disproportionate effect on the Utz Companies, taken as a whole, relative to other comparable entities operating in the industries or markets in which the Utz Companies operate (in which case only the incremental material and disproportionate impact may be taken into account in determining whether a Material Adverse Effect has occurred).

“Material Suppliers” means the top ten (10) suppliers (determined by the amount purchased) of the Utz Companies, taken as a whole, for the fiscal year ended December 29, 2019.

“Minimum Cash Amount” means, as of immediately prior to the Closing, an aggregate amount equal to the sum of (without duplication) (a) the cash in the Trust Account less amounts required for the Buyer Share Redemptions plus (b) the aggregate proceeds received by the Buyer from the Permitted Equity Financing pursuant to Section 7.15 (net of any costs and expenses to the extent incurred directly in connection with the Permitted Equity Financing) plus (c) the aggregate gross proceeds received by the Buyer from the sale of the Forward Purchase Securities pursuant to the Forward Purchase Agreements.

“Net Cash Consideration” means the Cash Consideration less (i) the amount of Losses, if any, arising from any Prohibited Affiliate Transaction (for the avoidance of doubt, other than those set forth on Section 3.24(b) of the Company and Sellers’ Disclosure Letter), and (ii) the amount of Losses, if any, arising from any breach of Section 6.1(a), in each case set forth in the Closing Statement pursuant to Section 2.3(a), which amount may be a negative number.

“Net Redeemed Stock” means the number of Buyer Class A Ordinary Shares (or shares of Buyer Class A Common Stock following the Domestication) redeemed on the Closing Date pursuant to the Buyer Share Redemptions less the number of shares of Buyer Class A Common Stock sold pursuant to the Permitted Equity Financing.

“Order” means any order, writ, judgment, injunction, temporary restraining order, stipulation, determination, decree or award entered by or with any Governmental Entity or arbitral institution.

“Ordinary Course of Business” means, with respect to any Person, (a) any action taken or not taken by such Person in the ordinary course of business consistent with past practice, and (b) any other action taken or not taken by such Person in response to the actual or anticipated effect on such Person’s business of COVID-19 or any quarantine, “shelter in place”, “stay at home”, workforce reduction, social distancing, shut down, closure, sequester or any other Law, Order, directive, guideline or recommendation by any Governmental Entity, in each case with respect to this clause (b) in connection with or in response to COVID-19.

“Ordinary Course Tax Sharing Agreement” means any written commercial agreement entered into in the Ordinary Course of Business of which the principal subject matter is not Tax but which contains customary Tax indemnification provisions.

“Owned Intellectual Property” means all Intellectual Property owned or purported to be owned by any of the Utz Companies.

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

“PCAOB” means the Public Company Accounting Oversight Board.

“Permitted Affiliate Transactions” means Tax Distributions and any item set forth on Section 1.1(a) of the Company and Sellers’ Disclosure Letter.

“Permitted Equity Financing” means purchases of Buyer Class A Common Stock on or before the Closing by Equity Financing Sources pursuant to Section 7.15.

“Permitted Liens” means (a) Liens securing obligations under capital leases, (b) easements, permits, rights of way, restrictions, covenants, reservations or encroachments, minor defects, irregularities in and other similar Liens of record affecting title to the property which do not materially impair the use or occupancy of such Real Property in the operation of the business of any of the Utz Companies as currently conducted thereon, (c) Liens for Taxes, assessments or governmental charges or levies imposed with respect to property which are not yet due and payable or which are being contested in good faith (provided appropriate reserves required pursuant to GAAP have been made in respect thereof on the books and records of the Utz Companies), (d) Liens in favor of suppliers of goods for which payment is not yet due or delinquent (provided appropriate reserves required pursuant to GAAP have been made in respect thereof), (e) mechanics’, materialmen’s, workmen’s, repairmen’s, warehousemen’s, carrier’s and other similar Liens arising or incurred in the Ordinary Course of Business which are not yet due and payable or which are being contested in good faith (provided appropriate reserves required pursuant to GAAP have been made in respect thereof), (f) Liens arising under workers’ compensation Laws or similar legislation, unemployment insurance or similar Laws, (g) Liens arising under municipal bylaws, development agreements, restrictions or regulations, and zoning, entitlement, land use, building or planning restrictions or regulations, in each case, promulgated by any Governmental Entity, which are not violated by the Utz Companies’ current use of the Real Property, (h) in the case of Leased Real Property, any Liens to which the underlying fee interest in the leased premises (or the land on which or the building in which the leased premises may be located) is subject, including rights of the landlord under the Lease and all superior, underlying and ground Leases and renewals, extensions, amendments or substitutions thereof, (i) Securities Liens, (j) non-exclusive licenses to Intellectual Property, and (k) those Liens set forth on the Section 1.1(b) of the Company and Sellers’ Disclosure Letter.

“Person” means any natural person, sole proprietorship, partnership, joint venture, trust, unincorporated association, corporation, limited liability company, entity or Governmental Entity.

“Personal Information” means information that identifies an individual or can be used to contact an individual, including name, address, retina or iris scan, fingerprint, voiceprint, scan of hand or face geometry and all other biometric data, geolocation information, credit or debit card account number, or any other personally identifiable information.

“Phantom Units” has the meaning as set forth in the LTIP.

“Pre-Closing Tax Period” means any taxable period ending on or before the Closing Date and the portion of any Straddle Period through and including the Closing Date.

“Pre-Closing Taxes” means, without duplication, (a) all Taxes of, or with respect to the assets or operations of, the Utz Companies for all Pre-Closing Tax Periods (determined in accordance with Section 9.1(b), if applicable); (b) any imputed underpayment imposed on and assessed against any Utz Company treated as a partnership for federal income tax purposes for which an election under Section 6226 of the Code is not validly made with respect to any taxable period ending on or before the Closing Date that is paid in a subsequent taxable year (or portion thereof) pursuant to Section 6225 of the Code (or any analogous or similar provision of any state or local Tax Law) (“Pre-Closing Imputed Underpayments”); (c) all Taxes of any member (other than any Utz Company) of an affiliated, consolidated, combined, unitary or similar group of which any Utz Company (or any of their respective predecessors) is or was (or is or was required to join as) a member on or prior to the Closing Date pursuant to Treasury Regulation Section 1.1502-6 or any analogous or similar Law; and (d) all Taxes of any Person (other than any Utz Company) imposed on any Utz Company as a transferee or successor, by contract, pursuant to any Law, or otherwise, which Taxes relate to an event or transaction occurring before the Closing.

“Privacy and Security Requirements” means (a) all applicable Privacy Laws, (b) provisions relating to Processing of Personal Information in all applicable Privacy Contracts, (c) all applicable Privacy Policies and (d) the Payment Card Industry Data Security Standard.

“Privacy Contracts” means all Contracts between any Utz Company and any Person that govern the Processing of Personal Information.

“Privacy Laws” means all Laws pertaining to the collection, storage, use, access, disclosure, processing, security, and transfer of Personal Information.

“Privacy Policies” means all written, external-facing policies of any Utz Company relating to the Processing of Personal Information, including all website and mobile application privacy policies.

“Proceeding” means any action, suit, charge, litigation, arbitration, notice of violation or citation received, or other proceeding at law or in equity (whether civil, criminal or administrative) by or before any Governmental Entity.

“Process” or “Processing” means the creation, collection, use (including for the purposes of sending telephone calls, text messages and emails), storage, maintenance, processing, recording, distribution, transfer, transmission, receipt, import, export, protection (including safeguarding, security measures and notification in the event of a breach of security), access, disposal or disclosure or other activity regarding Personal Information (whether electronically or in any other form or medium).

“Prohibited Affiliate Transactions” means, except for (a) Permitted Affiliate Transactions, (b) those Prohibited Affiliate Transactions consented to in writing by Buyer after the Effective Date (in the amount set forth in such consent, with the understanding that any portion of such Prohibited Affiliate Transaction in excess of such amount set forth in such consent shall be treated as a Prohibited Affiliate Transaction), and (c) the transactions contemplated by this Agreement or the Ancillary Agreements, the aggregate amount of all payments made (whether in cash, securities or assets) or liabilities incurred, assumed or suffered as a result of any of the following transactions:

(a)          the declaration, making or payment of any dividend, other distribution or return of capital (whether in cash or in kind) to any Seller (or if any Seller transfers its Company Interests before the Closing Date to another Interested Party, then such Interested Party) by any Utz Company, other than to another Utz Company;

(b)          any payment by any Utz Company to any Interested Party in connection with any redemption, purchase or other acquisition of shares of capital stock, partnership interests or other securities of any Utz Company;

(c)          any (i) loan made or owed by any Utz Company to any Interested Party, or (ii) payment made or Liability incurred, assumed or indemnified, whether in cash or kind, by any Utz Company to, or on behalf of, or for the benefit of, any Interested Party or any payments made to any officer, director, employee or independent contractor of an Interested Party solely to the extent such payment is made to such officer, director, employee or independent contractor in his, her or its capacity as an officer, director, employee or independent contractor of an Interested Party, other than compensation, benefits or expense reimbursement (in each case, of the types available to members of the Executive Leadership Team of the Company or otherwise on arms’ length terms) paid or provided in the Ordinary Course of Business to individuals who are employees of any Utz Company;

(d)          any Lien (other than those Permitted Liens referenced in clause (j) of the definition of Permitted Liens) made, created or granted over any asset of any Utz Company in favor of any Interested Party;

(e)          any guarantee by any Utz Company of any Liability of any Interested Party;

(f)           any discharge, forgiveness or waiver by any Utz Company of any Liability owed by any Interested Party to any Utz Company;

(g)          increases in the compensation or bonus payable by any Utz Company to any Interested Party, together with the employer portion of any payroll or other employment Taxes thereon;

(h)          the sale, purchase, transfer or disposal of any land, Intellectual Property, tractor trailer, plant or equipment owned by any Utz Company to or in favor of an Interested Party;

(i)           the sale, purchase, transfer or disposal of any asset or right of any Utz Company not referenced in clause (h) above to or in favor of an Interested Party, other than in the Ordinary Course of Business;

(j)           except as set forth on Section 3.13 or Section 4.6 of the Company and Sellers’ Disclosure Letter, any Liability, in connection with this Agreement or the Ancillary Agreements, or the transactions contemplated hereby or thereby, that would result in the obligation of any Seller, Utz Company or the Buyer to pay any financial advisor fee, investment banker fee, finder’s fee, brokerage or agent’s commissions or other similar payments or reimburse expenses of any of the foregoing; and

(k)          any commitment or agreement to do any of the foregoing.

“Real Property” means the Owned Real Property and the Leased Real Property.

“Required Vote” means the vote of the Buyer Shareholders set forth in the Form S-4 to the extent required to approve the Buyer Shareholder Voting Matters.

“Restructuring” means the restructuring set forth on Section 3.19 of the Company and Sellers’ Disclosure Letter.

“Retained Company Units” means 8,664,897 Company Units which are Common Units (as defined in the Company A&R LLCA) with respect to Series R and 49,101,081 Company Units which are Common Units (as defined in the Company A&R LLCA) with respect to Series U that are being retained by such Seller; provided, that, to the extent that the Net Cash Consideration is a negative number, then the aggregate number of Retained Company Units shall be reduced by that number of Company Units equal to the quotient of (x) the absolute value of the difference between $0 and the Net Cash Consideration divided by (y) the Common Stock Price (which shares shall be reduced pro rata between Series R and Series U in the same proportion that Series R and Series U held Common Units immediately prior to such reduction).

“Retained Restricted Company Units” means 522,453 Company Units which are Restricted Common Units (as defined in the Company A&R LLCA) with respect to Series R and 2,960,569 Company Units which are Restricted Common Units (as defined in the Company A&R LLCA) with respect to Series U that are being retained by such Seller.

“Sanctioned Country” means any country or region that is, or has been in the five (5) years prior to the Effective Date, the subject or target of a comprehensive embargo under Sanctions (including Cuba, Iran, North Korea, Syria and the Crimea region of Ukraine) in effect at the time.

“Sanctioned Person” means any Person that is: (a) listed on any applicable U.S. or non-U.S. sanctions-related restricted party list, including the U.S. Department of Treasury Office of Foreign Assets Control’s (“OFAC”) Specially Designated Nationals and Blocked Persons List, the EU Consolidated List and HM Treasury’s Consolidated List of Persons Subject to Financial Sanctions; (b) in the aggregate, fifty percent (50%) or greater owned, directly or indirectly, or otherwise controlled by a Person or Persons described in clause (a); or (c) organized, resident or located in a Sanctioned Country.

“Sanctions” means all Laws and Orders relating to economic or trade sanctions administered or enforced by the United States (including by OFAC, the U.S. Department of State and the U.S. Department of Commerce), Canada, the United Kingdom, the United Nations Security Council, the European Union, or any other EU Guarantor State, or any other relevant Governmental Entity.

“SEC” means the United States Securities and Exchange Commission.

“Securities Act” means the Securities Act of 1933.

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

“Securities Liens” means Liens arising out of, under or in connection with (a) applicable federal, state and local securities Laws and (b) restrictions on transfer, hypothecation or similar actions contained in any Governing Documents.

“Security Breach” means a data security breach or breach of Personal Information under applicable Laws.

“Security Incident” means any successful unauthorized access, use, disclosure, modification or destruction by a third party of information or interference with IT Assets.

“Seller Executives” means Dylan Lissette and Timothy Brown.

“Sellers Fundamental Representations” means the representations and warranties set forth in Section 4.1 (Organization; Authority; Enforceability); Section 4.2 (Capitalization; Ownership) Section 4.6 (Brokerage) and Section 4.7 (Investment Intent).

“Seller Taxes” means all Pre-Closing Taxes provided that Seller Taxes shall not include (a) Taxes that are accrued, reserved or otherwise taken into account on the books and records of the Utz Companies in the Ordinary Course of Business as of the end of the day on the Closing Date, (b) Taxes that are accrued, reserved or otherwise taken into account on the books and records of the Utz Companies in the Ordinary Course of Business after the Closing to reflect updates as of the end of the day on the Closing Date, (c) Taxes with respect to or arising from matters disclosed in Section 1.1(c) of the Company and Sellers’ Disclosure Letter as of the Effective Date, (d) Taxes with respect to or arising from matters disclosed in Section 1.1(c) of the Company and Sellers’ Disclosure Letter as updated and delivered to the Buyer prior to the Closing with respect to Tax Proceedings of which the Company did not have Knowledge prior to the Effective Date, (e) Taxes which have been paid on or before the Closing Date or (f) Transfer Taxes; provided further that the exclusions in clauses (a)-(e) shall not apply to Pre-Closing Imputed Underpayments.

“Sellers’ LLCA” means the Second Amended and Restated Limited Liability Company Agreement of UM Partners, LLC, dated as of October 1, 2019.

“Sherman Act” means the Sherman Antitrust Act of 1890.

“Software” means all computer software programs (and all versions, releases, fixes, upgrades and updates thereto, as applicable), including software compilations, development tools, compilers, application programming interfaces, and algorithms related thereto, whether in source code, object code or human readable form.

“Sponsor” means Collier Creek Partners, LLC, a Delaware limited liability company.

“SRS Leasing’s LLCA” means the Third Amended and Restated Limited Liability Company Agreement of SRS Leasing, LLC, dated as of October 1, 2019.

“Stock Exchange” means the New York Stock Exchange.

“Straddle Period” means any taxable period that begins on or before (but does not end on) the Closing Date.

“Subscription Agreement” means a Contract executed by an Equity Financing Source pursuant to which such Equity Financing Source has agreed to purchase for cash Buyer Class A Common Stock from the Buyer on or before the Closing pursuant to Section 7.15.

“Subsidiaries” means, of any Person, any corporation, association, partnership, limited liability company, joint venture or other business entity of which more than fifty percent (50%) of the voting power or equity is owned or controlled directly or indirectly by such Person, or one (1) or more of the Subsidiaries of such Person, or a combination thereof.

“Target Repaid Indebtedness” means for the Utz Companies or Sellers, the aggregate Indebtedness set forth on Section 1.1(d) of the Company and Sellers’ Disclosure Letter, which shall be updated as of the Closing Date and set forth on the Closing Statement.

“Tax” or “Taxes” means (a) all net or gross income, net or gross receipts, net or gross proceeds, payroll, employment, excise, severance, stamp, occupation, windfall or excess profits, profits, customs, capital stock, withholding, social security, unemployment, disability, real property, personal property (tangible and intangible), sales, use, transfer, value added, alternative or add-on minimum, capital gains, user, leasing, lease, natural resources, ad valorem, franchise, gaming license, capital, estimated, goods and services, fuel, interest equalization, registration, recording, premium, turnover, unclaimed or abandoned property, escheat, environmental or other taxes, including all interest, penalties, assessments and additions imposed with respect to the foregoing, imposed by (or otherwise payable to) any Governmental Entity, and, in each case, whether disputed or not, (b) any Liability for, or in respect of the payment of, any amount of a type described in clause (a) of this definition as a result of Treasury Regulations Section 1.1502-6 (or any similar provision of any Law) or being a member of an affiliated, combined, consolidated, unitary, aggregate or other group for Tax purposes and (c) any Liability for, or in respect of the payment of, any amount described in clauses (a) or (b) of this definition as a transferee or successor, by contract, by operation of Law, or otherwise.

“Tax Distributions” means, without duplication, “Tax Distributions” (as defined in and made by the Company to Sellers in accordance with the Company’s LLCA), including with respect to the 2019 tax year of the Sellers and SRS Leasing, LLC, and U.S. state and local Income Taxes relating to the Sellers or their direct or indirect owners that are required or permitted by applicable Law to be paid by the Company or Sellers in the ordinary course of business on a composite basis calculated in a manner consistent with the Sellers’ past practice, in each case, (a) to the extent provided in or permitted by the Company’s LLCA, (b) with respect to estimated and final U.S. federal, state and local income Tax payments that become due on or before the Closing Date in respect of (i) the 2019 Tax Year taking into account and reduced (but not below zero) by 2019 Pre-Closing Tax Distributions in respect of such Seller or SRS Leasing, LLC, as applicable, as of the Closing and (ii) the 2020 Pre-Closing Taxable Income taking into account and reduced (but not below zero) by the 2020 Pre-Closing Tax Distributions in respect of such Seller as of the Closing, provided that Tax Distributions with respect to the 2019 Tax Year of such Seller and SRS Leasing, LLC shall be made no later than the date their U.S. federal, state or local income Tax Returns are filed. The Company shall provide the Buyer with reasonable advance notice prior to making any “Tax Distributions” pursuant to the Company’s LLCA (as defined therein) from and after the Effective Date and prior to the Closing. For purposes of this definition, from the Effective Date, Tax Distributions in respect of SRS Leasing, LLC shall be made to Series U.

“Tax Proceeding” means any audit, examination, claim or Proceeding with respect to Taxes, Tax matters, or Tax Returns.

“Tax Returns” means returns, declarations, reports, claims for refund, information returns, elections, disclosures, statements, or other documents (including any related or supporting schedules, attachments, statements or information, and including any amendments thereof) filed or required to be filed with a Taxing Authority in connection with, or relating to, Taxes.

“Tax Sharing Agreement” means any agreement or arrangement (including any provision of a Contract) pursuant to which any Utz Company is or may be obligated to indemnify any Person for, or otherwise pay, any Tax of or imposed on another Person, or indemnify, or pay over to, any other Person any amount determined by reference to actual or deemed Tax benefits, Tax assets, or Tax savings, excluding, for the avoidance of doubt, the Tax Receivable Agreement.

“Taxing Authority” means any Governmental Entity having jurisdiction over the assessment, determination, collection, administration or imposition of any Tax.

“Transaction Expenses” means, to the extent unpaid at Closing:

(a)          all fees, costs and expenses (including fees, costs and expenses of third-party advisors, legal counsel, investment bankers (solely to the extent set forth on Section 5.3 of the Buyer Disclosure Letter), or other representatives) incurred or payable by the Buyer or the Sponsor through the Closing in connection with the preparation of the Financial Statements, the negotiation and preparation of this Agreement, the Ancillary Agreements, and the Form S-4 and the consummation of the transactions contemplated hereby and thereby (including due diligence and the Domestication) or in connection with the Buyer’s pursuit of a Business Combination, and the performance and compliance with all agreements and conditions contained herein or therein to be performed or complied with;

(b)          all fees, costs and expenses (including fees, costs and expenses of third-party advisors, legal counsel, investment bankers (solely to the extent set forth on Sections 3.13 or 4.6 of the Company and Sellers’ Disclosure Letter), or other representatives) incurred or payable by any of the Utz Companies or the Sellers (or the Sellers’ equityholders) through the Closing in connection with the preparation of the Financial Statements, the negotiation and preparation of this Agreement, the Ancillary Agreements and the Form S-4 and the consummation of the transactions contemplated hereby and thereby (including due diligence) or in connection with the Sellers’ pursuit of the transactions contemplated by this Agreement, and the performance and compliance with all agreements and conditions contained herein or therein to be performed or complied with;

(c)          any fees, costs and expenses incurred or payable by the Buyer, any of the Utz Companies or the Sellers through the Closing in connection with entry into the Subscription Agreements and the consummation of the transactions contemplated by the Subscription Agreements and in connection with the negotiation of any Permitted Equity Financing;

(d)          any payments related to the LTIP and the employer portion of any payroll or other employment Taxes thereon;

(e)          all fees, costs and expenses paid or payable pursuant to the R&W Insurance Policy and the Tail Policy;

(f)           all filing fees paid or payable to a Governmental Entity in connection with any filing made under the HSR Act, if required;

(g)          any Losses incurred by Buyer as a result of the transactions set forth in the BSOF Purchase Agreement (including the Commitment Fee as defined in the BSOF Purchase Agreement) or Redemption Agreement (excluding, for the avoidance of doubt, any payments under the Tax Receivable Agreement); and

(h)          all Transfer Taxes.

“Transfer Taxes” means all transfer, documentary, sales, use, value added, goods and services, stamp, registration, notarial fees and other similar Taxes and fees incurred in connection with the transactions contemplated by this Agreement.

“Treasury Regulations” means the United States Treasury Regulations promulgated under the Code, and any reference to any particular Treasury Regulation section shall be interpreted to include any final or temporary revision of or successor to that Section regardless of how numbered or classified.

“Trust Account” means the trust account established by the Buyer pursuant to the Trust Agreement.

“Trust Agreement” means that certain Investment Management Trust Agreement, dated of October 4, 2018 by and between the Buyer and Continental Stock Transfer & Trust Company, a New York corporation.

“Trustee” means Continental Stock Transfer & Trust Company, acting as trustee of the Trust Account.

“Unauthorized Code” means any virus, Trojan horse, worm, or other Software routines or hardware components designed to permit unauthorized access, to disable, erase, or otherwise harm Software, hardware or data that is not developed or authorized by any Utz Company or the licensor of the Software or hardware components.

“Utz C Corp Entities” means, collectively, Heron Holding Corporation, Golden Flake Snack Foods, Inc., Inventure Foods, Inc., Kitchen Cooked, Inc., Tejas PB Distributing, Inc., La Cometa Properties, Inc., and Inventure-GA, Inc. (f/k/a Fresh Frozen Foods, Inc.).

“Utz Companies” means, collectively, the Company and the Company Subsidiaries.

“WARN Act” means the Worker Adjustment and Retraining Notification Act of 1988, or any similar or related Law.

“Warrant Agreement” means that certain Warrant Agreement dated as of October 4, 2018, between the Buyer and Continental Stock Transfer & Trust Company, a New York corporation.

“Whole Company Loss” means a Loss covered under the R&W Insurance Policy to the extent constituting a Loss incurred by an Utz Company, whether fully or partially covered.

Article II
PURCHASE AND SALE TRANSACTIONS

Section 2.1          Purchase and Sale of Acquired Company Units; Issuance of Buyer Class V Voting Stock.Upon the terms and subject to the conditions set forth in this Agreement, at the Closing:

(a)          The Buyer will acquire the Acquired Company Units and the Acquired Restricted Company Units, and the Sellers and the Company will cause such Acquired Company Units and Acquired Restricted Company Units to be sold, transferred, assigned or issued to the Buyer, as applicable, in the following sequence:

(i)          Following the consummation of the purchase of the BSOF Preferred Interests and the BSOF Common Interests pursuant to the BSOF Purchase Agreement, respectively, the Sellers will consummate the Redemption whereby the Sellers will redeem the BSOF Common Interests and BSOF Preferred Interests purchased by the Buyer in exchange for the Exchanged Company Units held by such Sellers in accordance with the Redemption Agreement;

(ii)         The Buyer will pay and transfer to the Company the Contribution Amount in exchange for the Issued Company Units free and clear of all Liens other than Securities Liens and the Company will issue to the Buyer the Issued Company Units free and clear of all Liens other than Securities Liens; and

(iii)        The Buyer will (x) pay and transfer to the Sellers the Net Cash Consideration and (y) issue to the Sellers the Buyer Class V Voting Stock as set forth in Section 2.1(c) below and provide certain rights under the Tax Receivable Agreement, in exchange for the Assigned Company Units held by such Sellers free and clear of all Liens other than Securities Liens, and each Seller will sell, assign and transfer to the Buyer the Assigned Company Units held by such Seller free and clear of all Liens other than Securities Liens.

(b)          Substantially simultaneously with the transactions set forth in Section 2.1(a), the Sellers and the Company will adopt the Company A&R LLCA and in connection with such transactions, including the issuance to the Sellers of the Buyer Class V Voting Stock, Buyer shall be admitted as the manager of the Company pursuant to the terms of the Company A&R LLCA.

(c)          The Buyer shall (i) issue to Sellers, in the aggregate, one (1) share of Buyer Class V Voting Stock for each Retained Company Unit held by such Seller, free and clear of all Liens other than Securities Liens and (ii) make appropriate book entries (to the accounts designated by Sellers in writing prior to Closing) evidencing the issuance to Sellers of such shares of Buyer Class V Voting Stock.

(d)          As a result of the transactions contemplated by this Section 2.1, and assuming that the number of shares of Net Redeemed Stock is zero (0), Sellers will hold, in the aggregate, 57,765,978 Company Units which are Common Units (as defined in the Company A&R LLCA) and the Buyer will hold 57,375,000 Company Units which are Common Units (as defined in the Company A&R LLCA) and the Sellers will hold 3,483,022 Retained Restricted Company Units and the Buyer will hold 2,000,000 Acquired Restricted Company Units.

Section 2.2          Purchase Price and Closing Date Payments. Subject to the satisfaction or waiver of the conditions set forth in Section 2.5 (other than those conditions that by their nature are to be satisfied at Closing, but subject to the satisfaction or waiver of those conditions), at the Closing and in consideration for the acquisition of the Acquired Company Units and the Acquired Restricted Company Units as specifically set forth in Section 2.1(a) above (the components of which, as adjusted pursuant to Section 9.1(h), if applicable), the Buyer shall, subject to this Agreement and the Trust Agreement, disburse all Available Closing Date Equity for the following purposes and in the following order of priority:

(a)          first, payment to BSOF of the BSOF Consideration in accordance with the BSOF Purchase Agreement;

(b)          second, contribution to the Company of the Contribution Amount, which shall be used by the Company as follows:

(i)          first, payment of the Transaction Expenses by wire transfer of immediately available funds on behalf of the Persons that incurred such Transaction Expenses or by whom such Transaction Expenses are payable; provided that the Transaction Expenses incurred or payable by the Sellers, the equityholders of the Sellers or the Utz Companies shall be paid by the Company on the first Business Day following the Closing Date;

(ii)         second, to the extent of any amount of the Contribution Amount remaining after the payments made (or to be made) in accordance with Section 2.2(a)(i) (such amount, the “Excess Cash”), the Company shall pay the Target Repaid Indebtedness designated on the Closing Statement, to the applicable recipients thereof, by wire transfer of immediately available funds as set forth in the Closing Statement on the first Business Day following the Closing Date; and

(iii)        third, to the extent of any amount of Excess Cash remaining after the payments made in Section 2.2(b)(ii), such balance shall be retained by the Company for immediate use by any Utz Company;

(c)          third, payment to Sellers, by wire transfer of immediately available funds to the account or accounts designated in writing by the applicable Sellers no later than three (3) Business Days prior to the Closing, an aggregate amount in cash equal to the Net Cash Consideration (if any) and which amount shall be allocated between Sellers in accordance with Section 2.2(c) of the Company and Sellers’ Disclosure Letter; and

(d)          fourth, payment to the Company, by wire transfer of immediately available funds to the account or accounts designated in writing by the Company no later than three (3) Business Days prior to the Closing, an aggregate amount in cash equal to the positive difference between the Cash Consideration minus the Net Cash Consideration.

Section 2.3          Closing Statement; Available Closing Date Equity; Third Party Invoices; Target Repaid Indebtedness.

(a)          Closing Statement. At least five (5) Business Days prior to the Closing Date, the Company shall prepare and deliver to the Buyer a statement (the “Closing Statement”) setting forth the Company’s good faith calculation of: (i) the amount of any Losses, if any, arising from any Prohibited Affiliate Transaction (x) from December 30, 2019 through the Effective Date, which are not set forth on Section 1.1(a) or Section 3.24(b) of the Company and Sellers’ Disclosure Letter (or which are in excess of the amount set forth on such schedule, to the extent an amount is set forth on such schedule, with respect to such Prohibited Affiliate Transaction), if any, and (y) from the Effective Date through the Closing Date, and (ii) the amount of any Losses, if any, arising from any breach of Section 6.1(a). Upon receipt of the Closing Statement, Buyer will have two (2) Business Days to review and comment on the Closing Statement, and the amounts set forth therein, and during such period Sellers and the Company will (and will cause their respective Representatives to) provide Buyer which such information as may be reasonably necessary to facilitate Buyer’s review; provided that neither Seller nor the Company shall have any obligation to incorporate any such comments into the Closing Statement. If the Company and Sellers (in their sole discretion) make any changes to the Closing Statement based on comments provided by Buyer, the Company shall deliver to the Buyer an updated Closing Statement at least one (1) Business Day prior to the Closing Date.

(b)          Available Closing Date Equity. At least three (3) Business Days prior to the Closing Date, the Buyer shall prepare and deliver to the Company and Sellers a certificate, duly executed and certified by an executive officer of the Buyer, setting forth in reasonable detail the Buyer’s good faith calculation (and attaching reasonable supporting details to enable a review thereof by Sellers) of Available Closing Date Equity.

(c)          Third Party Invoices. At least three (3) Business Days prior to the Closing, (i) the Sellers shall deliver to the Buyer copies of all invoices for Transaction Expenses payable by Sellers, any equityholder of a Seller and any Utz Company from third parties prior to or in connection with the Closing, and (ii) the Buyer shall deliver to the Sellers copies of all invoices for Transaction Expenses payable by Buyer or the Sponsor from third parties prior to or in connection with the Closing.

(d)          Target Repaid Indebtedness. At least two (2) Business Days prior to the Closing Date, the Company shall prepare and deliver to the Buyer a statement setting forth the Company’s good faith calculation of the amount of Target Repaid Indebtedness to be repaid in connection with the Closing solely with any Excess Cash (following reasonable consultation with the Buyer regarding such amount of Target Repaid Indebtedness). No amount of Indebtedness of the Utz Companies will be repaid in connection with the Closing in excess of the amount of Excess Cash.

Section 2.4          Closing Transactions. The closing of the transactions contemplated by this Agreement (the “Closing”) shall take place by conference call and by exchange of signature pages by email, fax or other electronic transmission at 9:00 a.m. eastern time on (a) the fourth (4th) Business Day after the conditions set forth in Section 2.5 have been satisfied, or, if permissible, waived by the Party entitled to the benefit of the same (other than those conditions which by their terms are required to be satisfied at the Closing, but subject to the satisfaction or waiver of such conditions) or (b) such other date and time as the Parties mutually agree (the date upon which the Closing occurs, the “Closing Date”).

Section 2.5          Conditions to the Obligations of the Parties.

(a)          Conditions to the Obligations of Each Party. The obligation of each Party to consummate the transactions to be performed by it in connection with the Closing is subject to the satisfaction or written waiver, as of the Closing Date, of each of the following conditions:

(i)          Hart-Scott-Rodino Act. If a filing is required in connection with the consummation of the transactions contemplated by this Agreement under the HSR Act, the waiting period applicable to the consummation of the transactions contemplated by this Agreement under the HSR Act shall have expired or been terminated.

(ii)         No Orders or Illegality. There shall not be any applicable Law in effect that makes the consummation of the transactions contemplated by this Agreement illegal or any Order in effect preventing the consummation of the transactions contemplated by this Agreement.

(iii)        Required Vote. The Required Vote (other than with respect to the approval and adoption of the EIP) shall have been obtained.

(iv)        Buyer Share Redemptions. The Buyer Share Redemptions shall have been completed in accordance with the terms hereof, the applicable Buyer Governing Documents, the Trust Agreement and the Form S-4.

(v)         Minimum Cash Amount. The Minimum Cash Amount shall not be less than three hundred million dollars ($300,000,000).

(vi)        Form S-4. The Form S-4 shall have become effective in accordance with the provisions of the Securities Act, no stop order shall have been issued by the SEC that remains in effect with respect to the Form S-4, and no Proceeding seeking such a stop order shall have been threatened or initiated by the SEC that remains pending.

(vii)       BSOF Purchase Agreement. The conditions to closing set forth in Section 1.2 of the BSOF Purchase Agreement shall have been satisfied or waived (other than those conditions therein that by their nature are to be satisfied at the closing of the purchase of the BSOF Common Interests and BSOF Preferred Interests, but subject to the satisfaction or waiver of those conditions), BSOF shall be ready, willing and able to sell and transfer the BSOF Common Interests and BSOF Preferred Interests to the Buyer pursuant to the BSOF Purchase Agreement and the transactions contemplated by the BSOF Purchase Agreement shall be consummated substantially simultaneously with the Closing.

(viii)      Buyer Governing Documents. The Buyer Certificate of Incorporation shall have been filed with the Secretary of State of the State of Delaware, and the Buyer shall have adopted the Buyer Bylaws.

(ix)        Sponsor Side Letter. The Sponsor Side Letter shall continue to be in full force and effect.

(b)          Conditions to Obligations of the Buyer. The obligations of the Buyer to consummate the transactions to be performed by the Buyer in connection with the Closing is subject to the satisfaction or written waiver, at or prior to the Closing Date, of each of the following conditions:

(i)          Representations and Warranties.

(A)          The representations and warranties of the Company set forth in Article III of this Agreement (other than the Company Fundamental Representations) and of Sellers set forth in Article IV of this Agreement (other than the Sellers Fundamental Representations), in each case, without giving effect to any materiality or Material Adverse Effect qualifiers contained therein (other than in respect of the defined term ‘Material Contract’), shall be true and correct as of the Closing Date as though then made (or if such representations and warranties relate to a specific date, such representations and warranties shall be true and correct as of such date), except in each case, to the extent such failure of the representations and warranties to be so true and correct, when taken as a whole, would not have a Material Adverse Effect; and

(B)          the Company Fundamental Representations and the Sellers Fundamental Representations, in each case, without giving effect to any materiality or Material Adverse Effect qualifiers contained therein, shall be true and correct in all material respects as of the Closing Date as though then made (or if such representations and warranties relate to a specific date, such representations and warranties shall be true and correct in all material respects as of such date).

(ii)         Performance and Obligations of the Company and Sellers. The Company and Sellers shall have performed or complied in all material respects with all covenants required by this Agreement to be performed or complied with by the Company or Sellers, as applicable, on or prior to the Closing Date.

(iii)        Material Adverse Effect. Since the Effective Date, there has been no Material Adverse Effect.

(iv)        Officers Certificate. (A) The Company shall deliver to the Buyer, a duly executed certificate from an authorized Person of the Company in the form attached hereto as Exhibit I, dated as of the Closing Date, certifying that the conditions set forth in Section 2.5(b)(i), Section 2.5(b)(ii), and Section 2.5(b)(iii) with respect to the Company have been satisfied, and (B) and each Seller shall deliver to the Buyer, a duly executed certificate from an authorized Person of such Seller in the form attached hereto as Exhibit I, dated as of the Closing Date, certifying that the conditions set forth in Section 2.5(b)(i) with respect to such Seller and Section 2.5(b)(ii) with respect to such Seller have been satisfied.

(c)          Conditions to Obligations of Sellers and the Company. The obligation of Sellers and the Company to consummate the transactions to be performed by Sellers and the Company, as applicable, in connection with the Closing is subject to the satisfaction or written waiver, at or prior to the Closing Date, of each of the following conditions:

(i)          Representations and Warranties.

(A)          The representations and warranties of the Buyer set forth in Article V of this Agreement (other than the Buyer Fundamental Representations), in each case, without giving effect to any materiality or material adverse effect qualifiers contained therein, shall be true and correct as of the Closing Date as though then made (or if such representations and warranties relate to a specific date, such representations and warranties shall be true and correct as of such date), except in each case, to the extent such failure of the representations and warranties to be so true and correct would not have a Buyer Material Adverse Effect; and

(B)          the Buyer Fundamental Representations, in each case, without giving effect to any materiality or material adverse effect qualifiers contained therein, shall be true and correct in all material respects as of the Closing Date as though then made (or if such representations and warranties relate to a specific date, such representations and warranties shall be true and correct in all material respects as of such date).

(ii)         Performance and Obligations of the Buyer. The Buyer shall have performed or complied in all material respects with all covenants required by this Agreement to be performed or complied with by the Buyer on or prior to the Closing Date.

(iii)        Officers Certificate. The Buyer shall deliver to Sellers, a duly executed certificate from an officer of the Buyer, in the form attached hereto as Exhibit K, dated as of the Closing Date, certifying that the conditions set forth in Section 2.5(c)(i) and Section 2.5(c)(ii) have been satisfied.

(d)          Frustration of Closing Conditions. None of Sellers, the Company or the Buyer may rely on the failure of any condition set forth in this Section 2.5 to be satisfied if such failure was caused by such Party’s failure to act in good faith or to use commercially reasonable efforts to cause the closing conditions of such other Party to be satisfied.

(e)          Waiver of Closing Conditions. Upon the occurrence of the Closing, any condition set forth in this Section 2.5 that was not satisfied as of the Closing shall be deemed to have been waived as of and from the Closing.

Section 2.6          Company and Sellers Deliveries and Closing Actions.

(a)          Deliveries and Closing Actions. At the Closing:

(i)          each Seller shall deliver to the Buyer an assignment with respect to the Assigned Company Units and Exchanged Company Units owned by such Seller in the form attached hereto as Exhibit J (the “Assignment Agreement”), duly executed by such Seller;

(ii)         each Seller shall deliver to the Buyer the Redemption Agreement, duly executed by such Seller;

(iii)        the Sellers shall deliver to the Buyer the Company A&R LLCA, duly executed by the Sellers;

(iv)        each Seller shall deliver to the Buyer a properly completed and duly executed IRS Form W-9 (collectively, the “W-9s”);

(v)         the Company shall deliver to the Buyer evidence of the termination of the Affiliated Transactions pursuant to Section 7.16;

(vi)        the Sellers shall deliver to the Buyer the Tax Receivable Agreement, duly executed by the Sellers;

(vii)       the Sellers shall deliver to the Buyer the Investor Rights Agreement, duly executed by the Sellers;

(viii)      the Sellers shall deliver to the Buyer the Standstill Agreement, duly executed by the Sellers and the Rice Family Parties (as defined in the Standstill Agreement);

(ix)         Sellers will cause those members of the Buyer Board that is in existence immediately following the Closing and nominated by Sellers to deliver signature pages to a written consent of the Buyer that adopts both the Pubco Dividend Policy and the Company Distribution Policy, each to be held in escrow pending the consummation of the Closing; and

(x)          the Company shall deliver to the Buyer the Offer of Employment Letter for Dylan Lissette together with all exhibits attached thereto or as mutually agreed by the Buyer and the Company before the Closing, in the form attached hereto as Exhibit O, duly executed by Dylan Lissette (the “Lissette Offer Letter”).

Section 2.7          Buyer Deliveries and Closing Actions.

(a)          Deliveries and Closing Actions. At the Closing:

(i)          the Buyer shall deliver the payments required to be made at Closing in accordance with Section 2.2;

(ii)         the Buyer shall deliver, or cause to be delivered the Buyer Class V Voting Stock in accordance with Section 2.1;

(iii)        Buyer shall deliver to Sellers the Assignment Agreement, duly executed by Buyer;

(iv)        Buyer shall deliver to Sellers the Redemption Agreement, duly executed by Buyer;

(v)         the Buyer shall deliver to Sellers the Company A&R LLCA, duly executed by the Buyer and the Company;

(vi)        the Buyer shall deliver to Sellers the Tax Receivable Agreement, duly executed by the Buyer;

(vii)       the Buyer shall deliver to Sellers the Investor Rights Agreement, duly executed by the Buyer and Sponsor;

(viii)      the Buyer shall deliver to Sellers the Standstill Agreement, duly executed by the Buyer, the Sponsor and the Founder Holders (as defined in the Standstill Agreement);

(ix)        the Buyer shall deliver to Sellers evidence that the Domestication is complete and effective;

(x)         the Buyer shall deliver to Sellers evidence that, immediately after the Closing, the Buyer Board is comprised of ten (10) directors and that the Seller Directors (as defined in the Investor Rights Agreement) have been appointed to the Buyer Board;

(xi)        the Buyer will cause those members of the Buyer Board that is in existence immediately following the Closing and nominated by the Sponsor to deliver signature pages to a written consent of Buyer that adopts both the Pubco Dividend Policy and the Company Distribution Policy, each to be held in escrow pending the consummation of the Closing; and

(xii)        the Buyer shall deliver to the Company the Lissette Offer Letter, duly executed by the Buyer.

Section 2.8          Withholding and Wage Payments.

(a)          The Buyer and the Company shall be entitled to deduct and withhold (or cause to be deducted and withheld) from any amount otherwise payable under this Agreement such amounts as are required to be deducted and withheld with respect to the making of such payment under the Code or any other provision of applicable Laws; provided, however, that except with respect to compensation paid to any payee who is an employee of any of the Utz Companies, the relevant payor will reasonably cooperate with the relevant payee prior to the making of such deductions and withholding payments to determine whether any such deductions or withholding payments (other than with respect to compensatory payments or any deduction or withholding required by reason of the Sellers’ failure to timely provide the W-9s) are required under applicable Law and in obtaining any available exemption or reduction of, or otherwise minimizing to the extent permitted by applicable Law, such deduction and withholding. To the extent that such withheld amounts are paid over to or deposited with the applicable Governmental Entity, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the Person in respect of which such deduction and withholding were made. The Buyer and the Sellers acknowledge that no withholding is required under applicable U.S. federal income Tax Law as in effect as of the Effective Date (other than with respect to compensatory payments or any deduction or withholding required by reason of the Sellers’ failure to timely provide the W-9s) with respect to any amounts payable by the Buyer to the Sellers under this Agreement.

(b)          Notwithstanding the foregoing, to the extent that any amount payable pursuant to this Agreement needs to be paid to any employee or similar Person of any Utz Company that constitutes “wages” or other relevant compensatory amount, such amount shall be deposited in the payroll account of the applicable Utz Company and the amounts due to such employee or similar Person (net of any required Tax withholding) shall be paid to such Person pursuant to the next practicable scheduled payroll of the applicable Utz Company.

Article III
REPRESENTATIONS AND WARRANTIES REGARDING THE UTZ COMPANIES

As an inducement to the Buyer to enter into this Agreement and consummate the transactions contemplated by this Agreement, except as set forth in the applicable section of the Company and Sellers’ Disclosure Letter, the Company hereby represents and warrants to the Buyer as follows:

Section 3.1          Organization; Authority; Enforceability.Each Utz Company is (a) duly organized or formed, validly existing, and in good standing (or the equivalent) under the Laws of its jurisdiction of organization or formation, (b) qualified to do business and is in good standing (or the equivalent) in the jurisdictions in which the conduct of its business or locations of its assets and/or properties makes such qualification necessary, except where the failure to be so qualified to be in good standing (or the equivalent) would not have a Material Adverse Effect and (c) each Utz Company has the requisite corporate or limited liability company, as the case may be, power and authority to own, lease and operate its properties and to carry on its businesses as presently conducted. The Company has the limited liability company power and authority to execute and deliver this Agreement and the Ancillary Agreements to which it is a party and to consummate the transactions contemplated hereby and thereby. The board of managers of the Company has duly approved this Agreement and the Ancillary Agreements to which it is a party and the transactions contemplated hereby and thereby and has duly authorized the execution, delivery and performance of this Agreement by the Company and the Ancillary Agreement to which it is a party. No other limited liability company proceedings on the part of the Company are necessary to approve and authorize the execution, delivery and performance of this Agreement and the Ancillary Agreement to which it is a party and the consummation of the transactions contemplated hereby and thereby. This Agreement has been duly executed and delivered by the Company and constitutes the valid and binding agreement of the Company, enforceable against the Company in accordance with its terms, except as such may be limited by bankruptcy, insolvency, reorganization or other Laws affecting creditors’ rights generally and by general equitable principles. Correct and complete copies of the Governing Documents of each Utz Company, as in effect on the date hereof, have been made available to the Buyer. Except as set forth on Section 3.1 of the Company and Sellers’ Disclosure Letter, none of the Utz Companies is the subject of any bankruptcy, dissolution, liquidation, reorganization or similar proceeding.

Section 3.2          Noncontravention.

(a)          Except as set forth on Section 3.2(a) of the Company and Sellers’ Disclosure Letter or the filings pursuant to Section 7.8, the consummation by the Company of the transactions contemplated by this Agreement and the Ancillary Agreements to which the Company is a party do not (i) conflict with or result in any breach of any of the material terms, conditions or provisions of, (ii) constitute a material default under (whether with or without the giving of notice, the passage of time or both), (iii) result in a material violation of, (iv) give any third party the right to terminate or accelerate, or cause any termination or acceleration of, any material right or material obligation under (v) result in the creation of any Lien upon the Company Units under, (vi) require any approval from, or (vii) require any filing with, (x) any Material Contract or Material Lease, (y) any Governing Document of an Utz Company or (z) any Governmental Entity under or pursuant to any Law or Order to which any Utz Company is bound or subject, with respect to clauses (x) and (z), which would have a Material Adverse Effect. No Utz Company is in violation of any of the Governing Documents of such Utz Company.

(b)          Except as set forth on Section 3.2(b) of the Company and Sellers’ Disclosure Letter or the filings pursuant to the HSR Act, the consummation of any transaction or series of transactions that would result in Sellers (or their equityholders) no longer owning a majority of the voting power or Equity Interests of the Company, would not (i) conflict with or result in any breach of any of the material terms, conditions or provisions of, (ii) constitute a material default under (whether with or without the giving of notice, the passage of time or both), (iii) result in a material violation of, (iv) give any third party the right to terminate or accelerate, or cause any termination or acceleration of, any material right or material obligation under, (v) result in the creation of any Lien upon the Company Units under, (vi) require any approval from, or (vii) require any filing with, any Material Contract or Material Lease which would have a Material Adverse Effect.

Section 3.3          Capitalization.

(a)          Section 3.3(a) of the Company and Sellers’ Disclosure Letter sets forth with respect to each Utz Company, (i) its name and jurisdiction of organization or formation, (ii) its form of organization or formation and (iii) the Equity Interests issued by each Utz Company (including the number and class (as applicable) of vested and unvested Equity Interests) and the record and beneficial ownership (including the percentage interests held thereby) thereof. The Equity Interests set forth on Section 3.3(a) of the Company and Sellers’ Disclosure Letter comprise all of the capital stock, limited liability company interests or other equity interests, as applicable, of the Utz Companies that are issued and outstanding as of the Effective Date and, except for any grants or issuances of Phantom Units under the LTIP permitted pursuant to Section 6.1(a) of the Company and Sellers’ Disclosure Letter, immediately prior to giving effect to the transactions occurring on the Closing Date set forth in this Agreement and in the Ancillary Agreements.

(b)          Except as (x) set forth on Section 3.3(b) of the Company and Sellers’ Disclosure Letter, or (y) set forth in this Agreement, the Ancillary Agreements or the Governing Documents of the Utz Companies:

(i)          there are no outstanding options, warrants, Contracts, calls, puts, rights to subscribe, conversion rights or other similar rights to which any Utz Company is a party or which are binding upon any Utz Company providing for the offer, issuance, redemption, exchange, conversion, voting, transfer, disposition or acquisition of any of its Equity Interests;

(ii)         none of the Utz Companies is subject to any obligation (contingent or otherwise) to repurchase or otherwise acquire or retire any of its Equity Interests;

(iii)        none of the Utz Companies is a party to any voting trust, proxy or other agreement or understanding with respect to the voting of any of its Equity Interests;

(iv)        there are no contractual equityholder preemptive or similar rights, rights of first refusal, rights of first offer or registration rights in respect of Equity Interests of any of the Utz Companies to which any Utz Company is a party;

(v)         none of the Utz Companies has violated in any material respect any applicable securities Laws or any preemptive or similar rights created by Law, Governing Document or Contract to which such Utz Company is a party in connection with the offer, sale or issuance of any of its Equity Interests; and

(vi)        other than pursuant to existing credit facilities of the Utz Companies, there are no contractual restrictions which prevent the payment of dividends or distributions by any of the Utz Companies.

(c)          All of the issued and outstanding Equity Interests of the Utz Companies (including the Acquired Company Units and Exchanged Company Units) have been duly authorized, validly issued, fully paid and non-assessable and free of any preemptive rights in respect thereto, and were not issued in violation of any preemptive rights, call options, rights of first refusal, subscription rights, transfer restrictions (other than Securities Liens and other than as set forth in the Governing Documents of the Utz Companies) or similar rights of any Person or applicable Law, other than in each case Securities Liens. Upon delivery of and payment for the Acquired Company Units at the Closing and redemption of the Exchanged Company Units at the Closing, (i) Buyer will acquire good and valid title to all of the Acquired Company Units and Acquired Restricted Company Units, free and clear of any Liens (other than Securities Liens and other than as set forth in the Company’s LLCA) and (ii) the Acquired Company Units, the Acquired Restricted Company Units, together with the Retained Company Units and Retained Restricted Company Units, will represent all of the Equity Interests of the Company, other than as set forth in the Company’s LLCA.

(d)          Except as set forth on Section 3.3(d) of the Company and Sellers’ Disclosure Letter, no Utz Company currently owns, directly or indirectly, any Equity Interests in any Person (other than another Utz Company).

Section 3.4          Financial Statements; No Undisclosed Liabilities.

(a)          Attached as Section 3.4(a) of the Company and Sellers’ Disclosure Letter are the following financial statements (collectively, the “Financial Statements”):

(i)          the unaudited combined balance sheet of the Company and its Subsidiaries and certain Affiliates of the Company identified in the notes thereto as of December 29, 2019 (the “Latest Balance Sheet”) and the related unaudited combined statements of income, equity and cash flows for the fiscal year then ended, together with the notes thereto (collectively with the Latest Balance Sheet, the “Unaudited Financial Statements”);

(ii)         the audited combined financial statements of the Company and its Subsidiaries and certain Affiliates of the Company identified in the notes thereto as of December 29, 2019, December 30, 2018 and December 31, 2017, consisting of the audited combined balance sheets and the related audited combined statements of income, equity and cash flows for the fiscal years ended on such dates, together with all related notes and schedules thereto, accompanied by the reports thereon of the Utz Companies’ independent auditors (the “Audited Financial Statements”); and

(iii)        the financial statements for any “business” within the meaning of Rule 11-01(d) of Regulation S-X of the SEC acquired by any Utz Company that is required pursuant to SEC rules and regulations or the abbreviated financial statements for any such “business” as permitted by the SEC pursuant to a waiver letter, as applicable, for the applicable periods required thereunder (the “Other Financial Statements”).

(b)          Except as set forth on Section 3.4(b) of the Company and Sellers’ Disclosure Letter, the Financial Statements were and the PCAOB Financial Statements will be derived from the books and records of the Utz Companies, which books and records are, in all material respects, correct and complete and have been maintained in all material respects in accordance with commercially reasonable business practices. Except as set forth on Section 3.4(b) of the Company and Sellers’ Disclosure Letter, each of the Financial Statements has been and the PCAOB Financial Statements will be prepared in all material respects in accordance with GAAP applied on a consistent basis throughout the periods indicated and in accordance with Regulation S-X of the SEC (except (x) as otherwise noted therein, (y) that the Unaudited Financial Statements do not include footnotes and disclosures required by GAAP, and (z) that the Unaudited Financial Statements do not include all year-end adjustments required by GAAP). Each of the Financial Statements fairly presents and the PCAOB Financial Statements will fairly present, in all material respects, the combined assets, liabilities, equity, cash flow and financial condition as of the respective dates thereof and the operating results of the Utz Companies for the periods covered thereby (except (x) as otherwise noted therein, (y) that the Unaudited Financial Statements do not include footnotes and disclosures required by GAAP, and (z) that the Unaudited Financial Statements do not include all year-end adjustments required by GAAP).

(c)          Each of the independent auditors for the Utz Companies, with respect to their report as included in the Audited Financial Statements and as will be included in the PCAOB Financial Statements, is an independent registered public accounting firm within the meaning of the Securities Act and the applicable rules and regulations adopted by the SEC and, with respect to the PCAOB Financial Statements, the PCAOB, and with respect to their report as included in the Other Financial Statements, is an independent public accounting firm within the meaning of the Securities Act and the applicable rules and regulations adopted by the SEC and the American Institute of Certified Public Accountants.

(d)          The Company maintains a system of internal accounting policies and controls sufficient to provide reasonable assurances that (i) transactions are executed in all material respects in accordance with management’s authorization; (ii) all income and expense items are in all material respects properly recorded for the relevant periods in accordance with the policies maintained by the Utz Companies; and (iii) financial statements and reports for external purposes are prepared in all material respects in accordance with GAAP (“Internal Controls”). The Company has not identified in writing and has not received written notice from an independent auditor of (x) any significant deficiency or material weakness in the system of Internal Controls utilized by the Utz Companies, (y) any facts, that in their totality, reasonably constitute Fraud that involves the Utz Companies’ management or other employees who have a role in the preparation of financial statements or the Internal Controls utilized by the Utz Companies, or (z) any claim or allegation regarding any of the foregoing. There are no significant deficiencies or material weaknesses in the design or operation of the Internal Controls over financial reporting that would reasonably be expected to adversely affect, in a material manner, the Company’s ability to record, process, summarize and report financial information, and, to the Knowledge of the Company, there are no facts, that in their totality, reasonably constitute actual and intentional common law fraud committed by Sellers or any of their Affiliates (other than an Utz Company), the management of any Utz Company or any other Person which actual and intentional common law fraud involves any Utz Company or their respective management, employees, assets or operations.

(e)          The Utz Companies have no material Liabilities that are required to be disclosed on a balance sheet in accordance with GAAP, other than (i) Liabilities set forth in or reserved against in the Financial Statements or the notes thereto or books and records of the Utz Companies; (ii) Liabilities which have arisen after the date of the Latest Balance Sheet in the Ordinary Course of Business (none of which results from, arises out of, or was caused by any breach of warranty, breach of Contract or infringement or violation of Law); (iii) Liabilities arising under this Agreement, the Ancillary Agreements and/or the performance by the Company of its obligations hereunder or thereunder or incurred in connection with the transactions contemplated by this Agreement; or (iv) for fees, costs and expenses for advisors and Affiliates of the Utz Companies, including with respect to legal, accounting or other advisors incurred by the Utz Companies in connection with the transactions contemplated by this Agreement.

(f)          No Utz Company maintains any “off-balance sheet arrangement” within the meaning of Item 303 of Regulation S-K of the Securities and Exchange Commission.

Section 3.5          No Material Adverse Effect. Since December 30, 2019 through the Effective Date, there has been no Material Adverse Effect.

Section 3.6          Absence of Certain Developments. Except as set forth on Section 3.6 of the Company and Sellers’ Disclosure Letter, since December 30, 2019, (a) each Utz Company has conducted its business in all material respects in the Ordinary Course of Business and (b) no Utz Company has taken (or has had taken on its behalf) any action that would, if taken after the Effective Date, require the Buyer’s consent under Section 6.1(a).

Section 3.7          Real Property.

(a)          Set forth on Section 3.7(a) of the Company and Sellers’ Disclosure Letter is the address of each Owned Real Property. With respect to each Owned Real Property: (i) the applicable Utz Company has good and marketable indefeasible fee simple title to such Owned Real Property, free and clear of all Liens other than Permitted Liens; (ii) except as set forth on Section 3.7(a)(ii) of the Company and Sellers’ Disclosure Letter, no Utz Company leases or otherwise grants to any Person (other than to another Utz Company) the right to use or occupy such Owned Real Property; and (iii) there are no outstanding options, rights of first offer or rights of first refusal to purchase such Owned Real Property. Except as set forth on Section 3.7(a)(iii) of the Company and Sellers’ Disclosure Letter, no Utz Company is a party to any agreement to purchase any real property or interest therein.

(b)          Set forth on Section 3.7(b) of the Company and Sellers’ Disclosure Letter is a correct and complete list (with the address) of all Leases for each Leased Real Property which provides for a current monthly base rent of more than $25,000 (the “Material Leases”). Except as set forth on Section 3.7(b) of the Company and Sellers’ Disclosure Letter, with respect to each of the Material Leases (i) no Utz Company subleases, licenses or otherwise grants to any Person the right to use or occupy the Leased Real Property or any portion thereof; and (ii) the applicable Utz Company’s possession and quiet enjoyment of the Leased Real Property under such Material Lease, to the extent applicable, is not being disturbed. Each applicable Utz Company has made available to the Buyer a correct and complete copy of all Material Leases.

(c)          The Owned Real Property listed in Section 3.7(a) of the Company and Sellers’ Disclosure Letter, and the Leased Real Property comprise all of the real property used in the business of the Utz Companies.

(d)          The buildings, material building components, structural elements of the improvements, roofs, foundations, parking and loading areas, mechanical systems (including all heating, ventilating, air conditioning, plumbing, electrical, elevator, security, utility and fire/life safety systems) (collectively, the “Improvements”) included in the Owned Real Property and, to the Knowledge of the Company, the Leased Real Property are, in all material respects, in good working condition and repair (ordinary wear and tear excepted) and sufficient in all material respects for the operation of the business by each Utz Company as currently conducted, subject to any deferred maintenance. To the Knowledge of the Company, since the Lookback Date, no Utz Company has received written notice of (i) any condemnation, eminent domain or similar Proceedings affecting any parcel of Owned Real Property or the Material Leases comprising the Leased Real Property; (ii) any special assessment or pending improvement liens to be made by any Governmental Entity; or (iii) material violations of any building codes, zoning ordinances or governmental regulations or covenants or restrictions affecting any Owned Real Property or the Material Leases comprising the Leased Real Property.

(e)          To the Knowledge of the Company, all water, gas, electrical, stream, compressed air, telecommunication, sanitary and storm sewage lines and other utilities and systems servicing each parcel of Owned Real Property and Leased Real Property are sufficient in all material respects for the continued operation of the business of each applicable Utz Company as currently conducted on such Owned Real Property or Leased Real Property.

(f)          Except as set forth on Section 3.7(f) of the Company and Sellers’ Disclosure Letter, to the Knowledge of the Company, since the Lookback Date, no portion of the Owned Real Property or Leased Real Property has suffered damage by fire or other casualty loss, which has not been repaired and restored in all material respects.

Section 3.8          Tax Matters.Except as set forth on Section 3.8 of the Company and Sellers’ Disclosure Letter:

(a)          Each Seller and Utz Company has timely filed all income and other material Tax Returns required to be filed by it pursuant to applicable Laws (taking into account any validly obtained extensions of time within which to file). All income and other material Tax Returns filed by each of the Sellers and Utz Companies are correct and complete in all material respects and have been prepared in material compliance with all applicable Laws. All material amounts of Taxes due and payable by each of the Sellers and Utz Companies for which the applicable statute of limitations remains open have been timely paid (whether or not shown as due and payable on any Tax Return). Each Seller and Utz Company has timely and properly withheld and paid to the applicable Taxing Authority all material amounts of Taxes required to have been withheld and paid by it in connection with any amounts paid or owing to any employee, independent contractor, creditor, equityholder or other third party and all material sales, use, ad valorem and value added Taxes and has otherwise complied in all material respects with all applicable Laws relating to such withholding and payment of Taxes.

(b)          No written claim has been made by a Taxing Authority in a jurisdiction where a Seller or an Utz Company does not file a particular type of Tax Return, or pay a particular type of Tax, that such Seller or Utz Company is or may be subject to taxation of that type by, or required to file that type of Tax Return in, that jurisdiction, which claim has not been settled or resolved. The Income Tax Returns made available to the Buyer reflect all of the jurisdictions in which Sellers and the Utz Companies are required to remit material amounts of Income Tax.

(c)          There is no Tax Proceeding currently being conducted or pending with respect to any Taxes or Tax Returns of or with respect to any Seller or any Utz Company, and, to the Knowledge of the Company and to the Knowledge of the Sellers, no such Tax Proceeding has been threatened that has not been settled or resolved. No Seller or Utz Company has commenced a voluntary disclosure proceeding in any jurisdiction that has not been resolved or settled. All material deficiencies for Taxes asserted or assessed in writing against any Seller or Utz Company have been fully and timely (taking into account applicable extensions) paid, settled or withdrawn, and, to the Knowledge of the Company and to the Knowledge of the Sellers, no such deficiency has been threatened or proposed against any Seller or Utz Company.

(d)          There are no outstanding agreements or other documents extending or waiving the statute of limitations applicable to any Tax or Tax Return with respect to any Seller or Utz Company or extending a period of collection, assessment or deficiency for Taxes due from or with respect to any Sellers or Utz Company, which period (after giving effect to such extension or waiver) has not yet expired, and no request for any such waiver or extension is currently pending. No Utz Company is the beneficiary of any extension of time (other than an automatic extension of time not requiring the consent of the applicable Governmental Entity) within which to file any Tax Return not previously filed. No private letter ruling, administrative relief, technical advice, or other similar ruling or request has been granted or issued by, or is pending with, any Governmental Entity that relates to any Taxes or Tax Returns of any Utz Company that would have a material adverse effect on any Utz Company following the date of the Latest Balance Sheet.

(e)          No Seller or Utz Company has been a party to any “listed transaction” within the meaning of Treasury Regulations Section 1.6011-4(b)(2) (or any similar provision of U.S. state or local or non-U.S. Tax Law).

(f)          Each of the Utz C Corp Entities is (and has been at all times since its direct or indirect acquisition by an Utz Company) properly treated as a C corporation for U.S. federal and all applicable state and local income Tax purposes. Except for the Utz C Corp Entities, Kennedy Endeavors, LLC, Flamingo Holdings, LLC, Good Health Natural Products, LLC and Condor Snack Foods LLC, each Company Subsidiary is (and has been at all times since its direct or indirect acquisition by an Utz Company) properly treated as an entity disregarded as separate from either Seller, the Company or SRS Leasing, LLC for U.S. federal and all applicable state and local income Tax purposes. Kennedy Endeavors, Incorporated was properly treated as a C corporation for U.S. federal and all applicable state and local income Tax purposes from the time of its acquisition by Utz Quality Foods, LLC until its conversion into Kennedy Endeavors, LLC, and Kennedy Endeavors, LLC is (and has been at all times since the consummation of such conversion) properly treated as an entity disregarded as separate from either Series U or the Company for U.S. federal and all applicable state and local income Tax purposes. Good Health Natural Products, Inc. was properly treated as a C corporation for U.S. federal and all applicable state and local income Tax purposes from the time of its acquisition by an Utz Company until its conversion into Good Health Natural Products, LLC and Good Health Natural Products, LLC, is (and has been at all times since the consummation of such conversion) properly treated as an entity disregarded as separate from Series U or the Company for U.S. federal and all applicable state and local income Tax purposes. Condor Snack Company was properly treated as a C corporation for U.S. federal and all applicable state and local income Tax purposes from the time of its acquisition by GH Pop Holdings, LLC, a subsidiary of Utz Quality Foods, Inc., until its tax classification changed to a qualified subchapter S subsidiary of Utz Quality Foods, Inc. and subsequent conversion to a limited liability company (renamed “Condor Snack Foods, LLC”) and Condor Snack Foods, LLC is (and has been at all times since the consummation of such conversion) properly treated as an entity disregarded as separate from Utz Quality Foods, Inc., Series U or the Company for U.S. federal and all applicable state and local income Tax purposes. The Company was for its entire existence until the consummation of Step 2 of the Restructuring properly treated as an entity disregarded as separate from Series U for U.S. federal and all applicable state and local income Tax purposes, and the Company is (and has been at all times since the consummation of Step 2 of the Restructuring) properly treated as a partnership for U.S. federal and all applicable state and local income Tax purposes. Flamingo Holdings, LLC is (and has been for its entire existence) classified as an entity that is disregarded as separate from either Heron Holding Corporation or Kitchen Cooked, Inc. for U.S. federal and all applicable state and local income Tax purposes. Each Seller is (and has been at all times since September 21, 2016) properly treated as a separate partnership (as opposed to Sellers together being treated as a single partnership) for U.S. federal and all applicable state and local income Tax purposes, and from September 14, 2016 (the date of Sellers’ formation ) until September 21, 2016, each Seller was a disregarded entity for U.S. federal and applicable state and local income Tax purposes. Rice Investments, LP was at all times from January 31, 2004 until immediately prior to the consummation of Step 2 of the Restructuring, and SRS Leasing, LLC was at all times from April 14, 1983 until immediately prior to the consummation of Step 1 of the Restructuring, properly treated as a partnership for U.S. federal and all applicable state and local income Tax purposes. The Company is (and has been at all times since the consummation of Step 2 of the Restructuring) a partnership continuation of Rice Investments, LP for purposes of Section 708 of the Code. SRS Leasing, LLC did not continue as a partnership for purposes of Section 708 of the Code following the consummation of Step 1 of the Restructuring. UM-R Intermediate, LLC was for its entire existence until the consummation of Step 2 of the Restructuring properly treated as an entity disregarded as separate from Series R for U.S. federal and all applicable state and local income Tax purposes. UQF Holdings, Inc. is and has been a validly electing S corporation within the meaning of Sections 1361 and 1362 of the Code and any comparable provision of state or local Law at all times during its existence. Utz Quality Foods, Inc. was a validly electing S corporation within the meaning of Sections 1361 and 1362 of the Code and any comparable provision of state or local Law from March 29, 1998 until its conversion into Utz Quality Foods, LLC. No election has been made (or is pending), and none of Sellers or the Company has any intention to take any action that would reasonably be expected, to change any of the foregoing in this Section 3.8(f).

(g)          No Utz Company will be required to include any material item of income, or exclude any material item of deduction, for any period (or portion thereof) after the Closing Date (determined with and without regard to the transactions contemplated by this Agreement) as a result of: (i) an installment sale transaction occurring on or before the Closing Date governed by Code Section 453 (or any similar provision of state, local or non-U.S. Laws); (ii) a disposition occurring on or before the Closing Date reported as an open transaction for U.S. federal income Tax purposes (or any similar doctrine under state, local, or non-U.S. Laws); (iii) any prepaid amounts received on or prior to the Closing Date or deferred revenue realized, accrued or received on or prior to the Closing Date; (iv) a change in method of accounting with respect to a Pre-Closing Tax Period that occurs or was requested on or prior to the Closing Date (or as a result of an impermissible method used in a Pre-Closing Tax Period); (v) an agreement entered into with any Governmental Entity (including a “closing agreement” under Code Section 7121) on or prior to the Closing Date; (vi) an election (including a protective election) pursuant to Code Section 108(i) (or any similar provision of state, local, or non-U.S. Laws); or (vii) intercompany transaction occurring or any excess loss account existing on or prior to the Closing Date, in each case described in Treasury Regulations under Section 1502 of the Code (or any similar provision of state, local, or non-U.S. Laws). No Utz Company uses the cash method of accounting for income Tax purposes or will be or has been required to make any payment after the date of the Latest Balance Sheet as a result of an election under Section 965 of the Code (or any similar provision of state, local, or non-U.S. Laws). No Utz Company has any “long-term contracts” that are subject to a method of accounting provided for in Code Section 460 or has any deferred income pursuant to IRS Revenue Procedure 2004-34, Treasury Regulation Section 1.451-5, Section 455 of the Code, or Section 456 of the Code (or any corresponding provision of state or local Law). No Utz Company owns or has owned in the last two (2) years an interest in any Flow-Thru Entity (other than an interest in Rice Investments, LP).

(h)          There is no Lien for Taxes on any of the assets of any Utz Company, other than Liens for Taxes not yet due and payable.

(i)           No Utz Company has any liability for Taxes of any other Person (other than any Utz Company) as a result of Treasury Regulations Section 1.1502-6 (or any similar provision of state, local, or non-U.S. Laws), successor liability, transferee liability, joint or several liability, by contract, by operation of Law, or otherwise (other than pursuant to an Ordinary Course Tax Sharing Agreement). No Utz Company is party to or bound by any Tax Sharing Agreement, except for any Ordinary Course Tax Sharing Agreement (and except that the Company’s LLCA provides for the payment of Tax Distributions). All amounts payable by any Utz Company with respect to (or reference to) Taxes pursuant to any Ordinary Course Tax Sharing Agreement have been timely paid in accordance with the terms of such contracts.

(j)           The unpaid Taxes of the Utz Companies (i) did not, as of the date of the Latest Balance Sheet, materially exceed the reserves for Tax liabilities (excluding any reserve for deferred Taxes established to reflect timing differences between book and Tax income) included in the Latest Balance Sheet and (ii) do not materially exceed such reserves as adjusted for the passage of time through the Closing Date in accordance with the past practices of the Utz Companies in filing their Tax Returns.

(k)          No Utz Company is organized in any jurisdiction outside of the United States. No Utz Company (i) has or has had in the last five (5) years an office, permanent establishment, branch or taxable presence outside the United States or (ii) is or has been in the last five (5) years a resident for Tax purposes in any jurisdiction outside the United States.

(l)           Neither Seller is a foreign person within the meaning of Code Section 1445 or Code Section 1446(f).

(m)          No Utz Company has distributed stock of another Person, or has had its stock distributed by another Person, in a transaction that was governed, or intended or reported to be governed, in whole or in part by Section 355 or Section 361 of the Code in the past two (2) years or that could otherwise constitute part of a “plan” or “series of related transactions” (within the meaning of Code Section 355(e)) that includes the transactions contemplated by this Agreement.

(n)          No election has been made under Treasury Regulation Section 301.9100-22 (or any similar provision of state, local, or non-U.S. Laws) with respect to any Utz Company.

(o)          For U.S. federal income Tax purposes, each step of the Restructuring qualifies for the intended tax treatment indicated for such step on Section 3.19 of the Company and Sellers’ Disclosure Letter (the “Restructuring Intended Tax Treatment”).

(p)          Each of the Company and Sellers have a valid election under Section 754 of the Code (and any similar provision of state, local or non-U.S. Law) in effect, and such elections will remain in effect for any taxable period that includes the Closing Date.

(q)          Neither Seller is a related person (within the meaning of Code Section 197(f)(9)(C) and Treasury Regulations Section 1.197-2(h)(6)) to the Buyer. No Section 197 intangible (within the meaning of Section 197 of the Code) of any of the Utz Companies will be subject to the anti-churning rules of Section 197(f)(9) of the Code or Treasury Regulations Section 1.197-2(h) as a result of the transactions contemplated by this Agreement.

Section 3.9          Contracts.

(a)          Except as set forth on Section 3.9(a) of the Company and Sellers’ Disclosure Letter, no Utz Company is a party to, or bound by, any (other than any Contracts that are no longer in effect and under which no Utz Company has any continuing material Liability):

(i)          collective bargaining agreement;

(ii)         Contract with any Material Customer or Material Supplier;

(iii)        Material Lease;

(iv)        (x) Contract for the employment or engagement of any directors, officers, employees or individual independent contractors (other than IO Contracts) providing for an annual base compensation in excess of $200,000 (other than “at-will” Contracts that may be terminated upon thirty (30) days’ or less notice without the payment of severance, other than severance or termination payments required by Law), (y) Contract providing for severance payments in excess of $200,000, in the aggregate, or (z) Contract requiring the payment of any compensation by any Utz Company that is triggered (in whole or in part) as a result of the consummation of the transactions contemplated by this Agreement and the Ancillary Agreements;

(v)         Contract (other than IO Contracts) under which any Utz Company has created, incurred, assumed or borrowed any money or issued any note, indenture or other evidence of Indebtedness or guaranteed Indebtedness of others, in each case having an outstanding principal amount in excess of $7,500,000 (other than borrowings under the existing credit facilities of the Utz Companies);

(vi)        written license or royalty Contract licensing-in to any Utz Company any Intellectual Property, other than Contracts (w) relating to or concerning commercially available Software, software-as-a-service services, platform-as-a-service services, and/or infrastructure-as-a-service services licensed for less than $750,000 in annual fees; (x) that are immaterial to the business of the Utz Companies; (y) that include a license in of any Intellectual Property pursuant to stock, boilerplate, or other generally non-negotiable terms, such as, for example, website and mobile application terms and conditions or terms of use, stock photography licenses, and similar Contracts; or (z) whereby Intellectual Property is implicitly licensed;

(vii)       written license or royalty Contract licensing out any Owned Intellectual Property to any Person (other than another Utz Company), other than Contracts (w) that are immaterial to the business of the Utz Companies; (x) that include a license out of any Intellectual Property pursuant to stock, boilerplate, or other generally non-negotiable terms, such as, for example, website and mobile application terms and conditions or terms of use, stock photography licenses, and similar Contracts; (y) whereby Intellectual Property is implicitly licensed or licensed to service providers, subcontractors, or suppliers of any Utz Company; or (x) entered into in the Ordinary Course of Business;

(viii)      Contract that the Company reasonably expects will require aggregate future payments to or from any Utz Company in excess of $10,000,000 in the 12-month period following Closing, other than those that can be terminated without material penalty by such Utz Company upon ninety (90) days’ notice or less and can be replaced with a similar Contract on materially equivalent terms in the Ordinary Course of Business; provided that the listing of a Contract on Section 3.9(a)(viii) of the Company and Sellers’ Disclosure Letter is not a representation or warranty that such Contract will actually require aggregate future payments in such period in excess of $10,000,000;

(ix)         joint venture, partnership or similar Contract;

(x)         other than this Agreement, Contract for the sale or disposition of any material assets or Equity Interests of any Utz Company with an aggregate fair market value greater than $5,000,000 (other than those providing for sales or dispositions of (x) assets and inventory in the Ordinary Course of Business, (y) assets no longer used in the businesses of the Utz Companies, and (z) non-exclusive licenses or sublicenses of Intellectual Property in the Ordinary Course of Business), in each case, under which there are material outstanding obligations of the applicable Utz Company (including any sale or disposition agreement that has been executed, but has not closed);

(xi)         Contract (other than IO Contracts) that limits or restricts, or purports to limit or restrict, any Utz Company (or after the Closing, the Buyer or any Utz Company) from (x) engaging or competing in any line of business or material business activity in any jurisdiction or (y) acquiring any product or asset or receiving services from any Person or selling any product or asset for any Person;

(xii)        Contract that provides for any Utz Company to be an exclusive provider of any material product to any Person;

(xiii)       Contract that contains (x) a “most favored nation” provision with respect to any Person; (y) a provision providing for the sharing of any revenue or cost-savings with any other Person; or (z) “minimum purchase” requirements in which the Company reasonably expects will require aggregate future payments from any Utz Company in excess of $1,000,000 in the 12-month period following Closing;

(xiv)      Contract involving the payment of any earn-out or similar contingent payment;

(xv)       Contract involving the settlement, conciliation or similar agreement of any Proceeding or threatened Proceeding (y) involving payments (exclusive of attorney’s fees) in excess of $2,000,000 in any single instance or in excess of $5,000,000 in the aggregate, or (z) that by its terms limits or restricts any Utz Company from engaging or competing in any line of business in any jurisdiction;

(xvi)      Contract requiring any capital commitment or capital expenditure (or series of capital commitments or expenditures) by any Utz Company in an amount in excess of $5,000,000 annually or $10,000,000 over the life of the Contract;

(xvii)     Contract that relates to the future acquisition of material assets or properties by any Utz Company (including the acquisition of any business, stock or material assets of any Person or any real property and whether by merger, sale of stock, sale of assets or otherwise), except for (x) any agreement related to the transactions contemplated by this Agreement, (y) any non-disclosure, indications or interest, term sheets, letters of intent or similar agreements entered into in connection with such acquisitions, and (z) any agreement for the purchase of inventory or other assets in the Ordinary Course of Business;

(xviii)    Contract (other than IO Contracts) requiring any Utz Company to guarantee the Liabilities of any Person (other than any other Utz Company) or pursuant to which any Person (other than an Utz Company) has guaranteed the Liabilities of an Utz Company;

(xix)       material interest rate, currency, or other hedging Contracts;

(xx)        Contract for the acquisition of any material business of a third party (whether by merger, acquisition of Equity Securities or acquisition of all or substantially all its assets) pursuant to which the Company has material continuing obligations following the Effective Date; or

(xxi)      Contract set forth on Section 3.24(a) of the Company and Sellers’ Disclosure Letter.

(b)          Except as set forth on Section 3.9(b) of the Company and Sellers’ Disclosure Letter, each Contract listed on Section 3.9(a) of the Company and Sellers’ Disclosure Letter (each, a “Material Contract”) is in full force and effect and is valid, binding and enforceable against the applicable Utz Company party thereto and, to the Knowledge of the Company, against each other party thereto, except as such may be limited by bankruptcy, insolvency, reorganization or other Laws affecting creditors’ rights generally and by general equitable principles. The Company has made available to the Buyer a copy of each Material Contract. With respect to all Material Contracts, none of the Utz Companies or, to the Knowledge of the Company, any other party to any such Material Contract is in breach or default thereunder, which breach or default would have a Material Adverse Effect (or is alleged in writing to be in breach or default thereunder, which breach or default would have a Material Adverse Effect), and there does not exist under any Material Contract any event or circumstance which, with the giving of notice or the lapse of time (or both), would constitute such a breach or default by any Utz Company thereunder (which breach or default would have a Material Adverse Effect) or any other party to such Material Contract (which breach or default would have a Material Adverse Effect). During the last twelve (12) months, no Utz Company or any Seller has received any written, or to the Knowledge of the Company, oral claim or notice of breach of or default under any such Material Contract (which breach or default would have a Material Adverse Effect).

(c)          Set forth on Section 3.9(c) of the Company and Sellers’ Disclosure Letter is a list of the top ten (10) dollar volume customers of the Utz Companies (on a combined basis) for the fiscal year ended December 29, 2019 (each, a “Material Customer”). Since December 30, 2019, no such Material Customer has canceled, terminated or materially and adversely altered its relationship with any Utz Company (in each case, which would have a Material Adverse Effect) or, to the Knowledge of the Company, threatened in writing to cancel, terminate or materially and adversely alter its relationship with any Utz Company (in each case, which would have a Material Adverse Effect). There have been no disputes between any Utz Company and any Material Customer since the Lookback Date which would have a Material Adverse Effect. None of the Material Customers has notified any Utz Company in writing of any intention or plan to remove any of the Utz Companies’ products from its shelf in store(s) or listings online which would have a Material Adverse Effect, reduce any shelf space currently allocated to the Utz Companies’ products which would have a Material Adverse Effect or otherwise reduce the number or types of Utz Companies’ products that such Material Customer will carry which would have a Material Adverse Effect.

(d)          Set forth on Section 3.9(d) of the Company and Sellers’ Disclosure Letter is a list of the Material Suppliers. Since December 30, 2019, no such Material Supplier has canceled, terminated or materially and adversely altered its relationship with any Utz Company (in each case, which would have a Material Adverse Effect) or, to the Knowledge of the Company, threatened to cancel, terminate or materially and adversely alter its relationship with any Utz Company (in each case, which would have a Material Adverse Effect). There have been no disputes between any Utz Company and any Material Supplier since the Lookback Date which would have a Material Adverse Effect.

(e)          No Utz Company is subject to any obligation (contingent or otherwise) to repurchase or otherwise acquire or retire any Equity Interests of another Person which is not an Utz Company.

Section 3.10        Intellectual Property.

(a)          Except as set forth on Schedule 3.10(a)(i) of the Company and Sellers’ Disclosure Letter, since the Lookback Date, the former and current products and operation of the business of the Utz Companies, in each case as advertised, marketed, offered for sale, sold, or performed (as applicable) in the United States, have not, in any material respect, infringed, misappropriated or otherwise violated, and do not currently, in any material respect, infringe, misappropriate or otherwise violate, any Intellectual Property rights of any Person, and, since the Lookback Date, no Utz Company has received any written charge, complaint, claim, demand, or notice alleging any such material infringement, misappropriation or other violation (including any claim that such Utz Company must license or refrain from using any material Intellectual Property rights of any Person) or challenging the ownership, registration, validity or enforcement of any Owned Intellectual Property. To the Knowledge of the Company, except as set forth on Schedule 3.10(a)(ii) of the Company and Sellers’ Disclosure Letter, no Person is, in any material respect, infringing upon, misappropriating or otherwise violating any Owned Intellectual Property.

(b)          Except as set forth on Schedule 3.10(b)(i) of the Company and Sellers’ Disclosure Letter, each Utz Company owns, or has the valid right to use, all Intellectual Property that is used in and material to the business of such Utz Company as currently conducted. Set forth on Schedule 3.10(b)(ii) of the Company and Sellers’ Disclosure Letter is a listing of each active and subsisting patent issuance, Trademark registration, Internet domain name, and copyright registration, and all active and subsisting applications for patents, Trademarks, and copyrights filed with a Governmental Entity, in each case which is owned by an Utz Company or, with respect to Internet domain names, is registered in the name of an Utz Company. Except as set forth on Section 3.10(b)(iii) of the Company and Sellers’ Disclosure Letter, all the Intellectual Property required to be disclosed on Section 3.10(b)(ii) of the Company and Sellers’ Disclosure Letter is, to the Knowledge of the Company, valid and enforceable, except as such may be limited by bankruptcy, insolvency, reorganization or other Laws affecting creditors’ rights generally and by general equitable principles. Except as set forth on Section 3.10(b)(iv) of the Company and Sellers’ Disclosure Letter, the Owned Intellectual Property is not subject to any outstanding Order restricting the use or licensing thereof by such Utz Company or the business of the Utz Companies. All the Owned Intellectual Property required to be disclosed on Section 3.10(b)(ii) of the Company and Sellers’ Disclosure Letter that is an issued patent, patent application, registration, or application for registration has been maintained effective, subject to any expiration of term under applicable Law, by the filing of all necessary filings, maintenance and renewals and timely payment of requisite fees, except in the event the Utz Companies have decided in the exercise of good business judgment not to maintain such application, registration, or issuance.

(c)          Each Utz Company has taken commercially reasonable measures to protect the confidentiality of all trade secrets and any other material confidential information owned by such Utz Company (and any confidential information owned by any Person to whom any of the Utz Companies has a confidentiality obligation). Except as required by Law or as part of any audit or examination by a regulatory authority or self-regulatory authority, no such trade secret or confidential information has been disclosed by any Utz Company to any Person other than to Persons subject to a duty of confidentiality or pursuant to a written agreement restricting the disclosure and use of such trade secrets or any other confidential information by such Person.

(d)          The IT Assets are sufficient in all material respects for the current business operations of the Utz Companies. The Utz Companies have in place disaster recovery and security plans and procedures and have taken reasonable steps to safeguard the availability, security and integrity of the IT Assets owned by the Utz Companies and all confidential or sensitive data and information stored thereon, including from unauthorized access and infection by Unauthorized Code. The Utz Companies have maintained in the Ordinary Course of Business all required licenses and service contracts, including the purchase of a sufficient number of license seats, for all Software material to the operation of the Utz Companies as currently conducted.

(e)          Except as set forth on Section 3.10(e) of the Company and Sellers’ Disclosure Letter, each item of Intellectual Property owned or used by the Utz Companies immediately prior to the Closing will be owned or available for use by the Utz Companies immediately subsequent to the Closing on substantially identical terms and conditions as owned or used by the Utz Companies immediately prior to the Closing.

(f)          Except as set forth on Section 3.10(f) of the Company and Sellers’ Disclosure Letter, the Utz Companies have not experienced any Security Breaches or material Security Incidents since the Lookback Date, and no Utz Company has received any written notices or complaints from any Person regarding such a Security Breach or material Security Incident. No Utz Company has received any written complaint, claim, demand, inquiry or other notice, including a notice of investigation, from any Person (including any Governmental Entity or self-regulatory authority or entity) regarding any of the Utz Companies’ Processing of Personal Information or compliance with applicable Privacy and Security Requirements.

(g)          Except as set forth on Section 3.10(g) of the Company and Sellers’ Disclosure Letter, each Utz Company is, and since the Lookback Date has been, in compliance in all material respects with all applicable Privacy and Security Requirements. The Utz Companies have a valid and legal right (whether contractually, by Law or otherwise) to access or use all Personal Information that is Processed by or on behalf of the Utz Companies in connection with the use and/or operation of its products and business, in the manner such Personal Information is accessed and used by the Utz Companies. The execution, delivery, or performance of this Agreement and the consummation of the transactions contemplated by this Agreement will not violate any applicable Privacy and Security Requirements or result in or give rise to any right of termination or other right to impair or limit the Utz Companies’ right to own or process any Personal Information used in or necessary for the conduct of the business of the Utz Companies.

(h)          The Utz Companies have implemented reasonable physical, technical and administrative safeguards designed to protect Personal Information in their possession or control from unauthorized access by any Person.

Section 3.11        Information Supplied.The information supplied by the Company with respect to the Utz Companies for inclusion in the Form S-4, any other document submitted to any other Governmental Entity or any announcement or public statement regarding the transactions contemplated by this Agreement (including the Signing Press Release and the Closing Press Release), which information with respect to the Utz Companies shall be provided by the Company, shall not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances in which they are made, not misleading at (a) the time such information is filed, submitted or made publicly available, and with respect to information supplied by the Company for inclusion in the Form S-4, such information is not revised by any subsequently filed amendment prior to the time that the Form S-4 is declared effective by the SEC, to the extent such initially included information does not result in Liabilities to the Buyer under the Securities Act or the Securities Exchange Act, (b) the time the Form S-4 is declared effective by the SEC, (c) the time the Form S-4 (or any amendment thereof or supplement thereto) is first mailed to the Buyer Shareholders, or (d) the time of the Buyer Shareholder Meeting (in each case, subject to the qualifications and limitations set forth in the materials provided by the Company or that are included in such filings and/or mailings), except that no warranty or representation is made by the Company with respect to statements made or incorporated by reference therein based on information supplied by Buyer or its Affiliates for inclusion therein.

Section 3.12        Litigation. Except as set forth on Section 3.12(a) of the Company and Sellers’ Disclosure Letter, there are no Proceedings (or to the Knowledge of the Company, investigations) in which the reasonably expected damages are in excess of $3,000,000 pending or, to the Knowledge of the Company, threatened against any Utz Company or any director or officer of an Utz Company (in their capacity as such), and since the Lookback Date the Utz Companies have not been subject to or bound by any material outstanding Orders. Except as set forth on Section 3.12(b) of the Company and Sellers’ Disclosure Letter, there are no Proceedings in which the reasonably expected damages are in excess of $3,000,000 pending or threatened by any Utz Company against any other Person. There are no material internal investigations by any Utz Company with respect to any employee of an Utz Company.

Section 3.13        Brokerage. Except as set forth on Section 3.13 of the Company and Sellers’ Disclosure Letter, no Utz Company has any Liability in connection with this Agreement or the Ancillary Agreements, or the transactions contemplated hereby or thereby, that would result in the obligation of any Utz Company or the Buyer to pay any finder’s fee, brokerage or agent’s commissions or other like payments.

Section 3.14        Labor Matters.

(a)          Schedule 3.14(a) sets forth a complete list of all employees of the Utz Companies as of May 29, 2020 and, as applicable, their classification as exempt or non-exempt under the Fair Labor Standards Act, title and/or job description, job location and compensation (base compensation and any bonuses paid with respect to the fiscal year ended December 29, 2019 and the fiscal quarter ended March 29, 2020). All employees of the Utz Companies are legally permitted to be employed by the Utz Companies in the jurisdiction in which such employees are employed in their current job capacities.

(b)          Except as set forth on Section 3.14(b)(i) of the Company and Sellers’ Disclosure Letter, no Utz Company is a party to any collective bargaining agreement with respect to employees of any Utz Company. There are no strikes, work stoppages, slowdowns or other material labor disputes pending or, to the Knowledge of the Company, threatened against any Utz Company, and no such strikes, work stoppages, slowdowns or other material disputes have occurred since the Lookback Date. Except as set forth on Section 3.14(b)(ii) of the Company and Sellers’ Disclosure Letter, since the Lookback Date, (i) no labor union or other labor organization, or group of employees of any Utz Company has made a demand for recognition or certification, and there are no representation or certification proceedings presently pending or, to the Knowledge of the Company, threatened to be brought or filed with the National Labor Relations Board or any other labor relations tribunal or authority, (ii) there have been no pending or, to the Knowledge of the Company, threatened union organizing activities with respect to employees of any Utz Company, (iii) there has been no actual or, to the Knowledge of the Company, threatened, material unfair labor practice charges, material grievances or other material labor disputes arising under a collective bargaining agreement of any Utz Company. With respect to the transactions contemplated by this Agreement, the Utz Companies have, or prior to the Closing will have, satisfied, in all material respects all notice and bargaining obligations they owe to any unions representing their employees under applicable Law or any collective bargaining agreement of any Utz Company.

(c)          Except as set forth on Section 3.14(c)(i) of the Company and Sellers’ Disclosure Letter and except as would not reasonably be expected to result in material Liabilities to the Utz Companies, the Utz Companies, as well as each third party that is a single employer or joint employer with the Utz Companies with respect to any employees, are, and since the Lookback Date have been, in compliance, in all material respects, with all applicable Laws relating to the employment of labor, including provisions thereof relating to wages and hours, classification (including employee-independent contractor classification and the proper classification of employees as exempt employees and nonexempt employees under the Fair Labor Standards Act and applicable state and local Laws), equal opportunity, employment harassment, discrimination or retaliation, disability rights or benefits, workers’ compensation, affirmative action, collective bargaining, workplace health and safety, immigration (including the completion of Forms I-9 for all employees and the proper confirmation of employee visas), whistleblowing, plant closures and layoffs (including the WARN Act), employee trainings and notices, workers’ compensation, labor relations, employee leave issues, affirmative action, unemployment insurance and the payment of social security and other Taxes. Except as set forth on Section 3.14(c)(ii) of the Company and Sellers’ Disclosure Letter, (i) there are no material Proceedings pending or, to the Knowledge of the Company, threatened against any Utz Company by any current or former employee or individual independent contractor of any Utz Company and (ii) since the Lookback Date, none of the Utz Companies has implemented any plant closing or layoff of employees triggering notice requirements under the WARN Act, nor is there presently any outstanding liability under the WARN Act, and no such plant closings or employee layoffs are currently planned or announced.

(d)          Since the Lookback Date, except as would not reasonably be expected to result in material Liabilities to the Utz Companies, no Utz Company has been party to any Proceeding, Order or other dispute involving, or had any Liability with respect to, any single employer, joint employer or co-employer claims or causes of action by any individual who was employed or engaged by a third party and providing services to any Utz Company and each third party providing individuals to any Utz Company on a temporary, seasonal or leased basis are in compliance in all material respects with all applicable labor and employment Laws. The Utz Companies do not have reason to believe they are a single employer, joint employer or co-employer of any individuals with any third party.

(e)          Except as would not reasonably be expected to result in material Liabilities to the Utz Company, since the Lookback Date, (i) each of the Utz Companies has withheld all amounts required by Law or by agreement to be withheld from the wages, salaries, and other payments to employees; (ii) no Utz Company has been liable for any arrears of wages, compensation or related Taxes, penalties or other sums; (iii) each of the Utz Companies has paid in full to all employees and individual independent contractors all wages, salaries, commissions, bonuses, benefits and other compensation due and payable to or on behalf of such employees and such individual independent contractors; and (iv) to the Knowledge of the Company, each individual who since the Lookback Date has provided or is providing services to any Utz Company, and has been classified as (y) an independent contractor, consultant, leased employee, or other non-employee service provider, or (z) an exempt employee, has been properly classified as such under all applicable Laws including relating to wage and hour and Tax. None of the Utz Companies has any material Liability under any applicable Laws arising out of improperly treating any such individual as a consultant, independent contractor or temporary employee, as applicable, since the Lookback Date, and, to the Knowledge of the Company, no such individual is entitled to any compensation or benefits that such Person has not been afforded under any applicable Laws or benefit plan or program of any Utz Company. None of the Utz Companies has any material liability for any delinquent payment to any trust or other fund or to any Governmental Entity with respect to unemployment compensation benefits, social security or other benefits or obligations for any Utz Company employees (other than routine payments to be made in the Ordinary Course of Business and consistent with past practice).

(f)          To the Knowledge of the Company, no employee or individual independent contractor of any Utz Company is, with respect to his or her employment by or relationship with any Utz Company, in material breach of the terms of any employment agreement, nondisclosure agreement, common law nondisclosure obligation, fiduciary duty, noncompetition agreement, nonsolicitation agreement, restrictive covenant or other obligation (i) owed to the Utz Companies; or (ii) owed to any third party with respect to such Person’s employment or engagement by the Utz Companies. No senior executive has provided oral or written notice, and no key employee of any Utz Company has provided written notice, of any present intention to terminate his or her relationship with any Utz Company within the first twelve (12) months following the Closing.

(g)          The Utz Companies are not, and have not been since the Lookback Date: (i) a “contractor” or “subcontractor” (as defined by Executive Order 11246), (ii) required to comply with Executive Order 11246, (iii) required to maintain an affirmative action plan or (iv) party to, or bound by, any foreign, federal, state or local government contracts requiring the payment of prevailing wage rates and/or benefits to workers.

(h)          Since the Lookback Date, the Utz Companies have promptly, thoroughly and impartially investigated all sexual harassment, or other discrimination, retaliation or policy violation allegations which have been reported to the appropriate individuals in accordance with the policies and procedures established by the Utz Companies. With respect to each such allegation with potential merit, the Utz Companies have taken prompt corrective action that is reasonably calculated to prevent further improper conduct as was reported to the appropriate individual in accordance with the policies and procedures established by the Utz Companies. The Utz Companies do not reasonably expect any material Liabilities with respect to any such allegations.

Section 3.15        Employee Benefit Plans.

(a)          Section 3.15(a) of the Company and Sellers’ Disclosure Letter sets forth a list of each material Company Employee Benefit Plan. With respect to each Company Employee Benefit Plan, Sellers have made available to the Buyer correct and complete copies of, as applicable, (i) the current plan document (and all amendments thereto), (ii) the most recent summary plan description (with all summaries of material modifications thereto), (iii) the most recent determination, advisory or opinion letter received from the Internal Revenue Service (the “IRS”), (iv) the most recently filed Form 5500 annual report with all schedules and attachments as filed, and (v) all related insurance Contracts, trust agreements or other funding arrangements.

(b)          Except as set forth on Section 3.15(b) of the Company and Sellers’ Disclosure Letter, (i) no Company Employee Benefit Plan provides, and no Utz Company has any current or potential obligation to provide, retiree or post-employment health or life insurance or any other retiree or post-employment welfare-type benefits to any Person other than as required under Section 4980B of the Code or any similar state Law and for which the covered Person pays the full cost of coverage, (ii) no Company Employee Benefit Plan is, and no Utz Company sponsors, maintains or contributes to (or is required to contribute to), or has any Liability under or with respect to a “defined benefit plan” (as defined in Section 3(35) of ERISA) or a plan that is or was subject to Title IV of ERISA or Section 412 or 430 of the Code and (iii) no Utz Company contributes to or has any obligation to contribute to, or has any Liability under or with respect to, any “multiemployer plan,” as defined in Section 3(37) of ERISA. No Company Employee Benefit Plan is (x) a “multiple employer plan” within the meaning of Section 413(c) of the Code or Section 210 of ERISA, or (y) a “multiple employer welfare arrangement” (as defined in Section 3(40) of ERISA). No Utz Company has any, or is reasonably expected to have any, Liability under Title IV of ERISA or on account of being considered a single employer under Section 414 of the Code with any other Person.

(c)          Each Company Employee Benefit Plan that is intended to be qualified within the meaning of Section 401(a) of the Code has timely received, or may rely upon, a current favorable determination, advisory or opinion letter from the IRS, and nothing has occurred that would reasonably be expected to cause the loss of the tax-qualified status or to materially adversely affect the qualification of such Company Employee Benefit Plan. Each Company Employee Benefit Plan has been established, operated, maintained, funded and administered in accordance in all material respects with its respective terms and in compliance in all material respects with all applicable Laws, including ERISA and the Code. There have been no material “prohibited transactions” within the meaning of Section 4975 of the Code or Sections 406 or 407 of ERISA that are not otherwise exempt under Section 408 of ERISA and no material breaches of fiduciary duty (as determined under ERISA) with respect to any Company Employee Benefit Plan since the Lookback Date. There is no Proceeding (other than routine and uncontested claims for benefits) pending or, to the Knowledge of the Company, threatened, with respect to any Company Employee Benefit Plan or against the assets of any Company Employee Benefit Plan. The Utz Companies have complied in all material respects with the requirements of the Patient Protection and Affordable Care Act, including the Health Care and Education Reconciliation Act of 2010 (the “ACA”), and none of the Utz Companies have incurred (whether or not assessed), nor is reasonably expected to incur, any penalty or Tax under the ACA (including with respect to the reporting requirements under Sections 6055 and 6056 of the Code, as applicable) or under Section 4980H, 4980B or 4980D of the Code. With respect to each Company Employee Benefit Plan, all contributions, distributions, reimbursements and premium payments that are due have been timely made in all material respects in accordance with the terms of the Company Employee Benefit Plan and in all material respects in compliance with the requirements of applicable Law, and all contributions, distributions, reimbursements and premium payments for any period ending on or before the Closing Date that are not yet due have been made or properly accrued. Except as set forth on Section 3.15(c) of the Company and Sellers’ Disclosure Letter, each participating employer in each of the Company Employee Benefit Plans has properly adopted such Company Employee Benefit Plan in accordance with its terms and applicable Law, and each participating employer in each of the Company Employee Benefit Plans is (and at all relevant times has been) properly treated as a single employer with the plan sponsor and all other participating employers under Section 414 of the Code.

(d)          Except as set forth on Section 3.15(d) of the Company and Sellers’ Disclosure Letter, the consummation of the transactions contemplated by this Agreement, alone or together with any other event will not (i) result in any material payment or benefit becoming due or payable, to any current or former officer, employee, director or individual independent contractor under a Company Employee Benefit Plan or otherwise, (ii) increase the amount or value of any benefit or compensation otherwise payable or required to be provided to any current or former officer, employee, director or individual independent contractor under a Company Employee Benefit Plan or otherwise, (iii) result in the acceleration of the time of payment, vesting or funding, or forfeiture, of any such benefit or compensation under a Company Employee Benefit Plan or otherwise, (iv) result in the forgiveness in whole or in part of any outstanding loans made by the Utz Companies to any current or former officer, employee, director or individual independent contractor, or (v) limit or restrict the Utz Companies’, the Sellers’ or Buyer’s ability to merge, amend or terminate any Company Employee Benefit Plan.

(e)          No Company Employee Benefit Plan covers employees primarily working outside of the United States.

(f)           Each Company Employee Benefit Plan that is, in any part, a nonqualified deferred compensation plan within the meaning of Section 409A of the Code has been operated and maintained in all material respects in compliance with Section 409A of the Code and applicable guidance thereunder. Except as set forth on Section 3.15(f) of the Company and Sellers’ Disclosure Letter, no Person has any right against the Utz Companies to be grossed up for, reimbursed or otherwise indemnified for any Tax or interest imposed under Section 409A of the Code.

(g)          Neither the execution or delivery of this Agreement nor the consummation of the transactions contemplated by this Agreement could, either alone or in conjunction with any other event, result in the payment of any amount that could, individually or in combination with any other payment, constitute a “parachute payment” (as defined in Section 280G(b)(2) of the Code). Except as set forth on Section 3.15(g) of the Company and Sellers’ Disclosure Letter, no Utz Company has agreed to pay, gross up, reimburse or otherwise indemnify any Person for any Tax imposed under Section 4999 of the Code.

(h)          Section 3.15(h) of the Company and Sellers’ Disclosure Letter sets forth, with respect to each Phantom Unit, the “Account Value” and “Gross-Up Payment” amounts (if applicable), as such terms are defined in award agreements under the LTIP, in each case, calculated as of June 30, 2020 as if such date constitutes the date of a “Change in Control” within the meaning of the LTIP.

Section 3.16        Insurance. The Utz Companies have in effect policies of insurance in amounts and scope of coverage as set forth on Section 3.16 of the Company and Sellers’ Disclosure Letter (the “Insurance Policies”). Each such Insurance Policy is valid, binding and enforceable on the applicable Utz Company in accordance with its terms, except as such may be limited by bankruptcy, insolvency, reorganization or other Laws affecting creditors’ rights generally and by general equitable principles. All premiums due under such Insurance Policies have been paid in accordance with the terms of such Insurance Policy. All Insurance Policies maintained for the benefit of the Utz Companies are maintained by the Utz Companies. The amount and scope of coverage of the Insurance Policies are customary, adequate and suitable for companies of a similar nature and size operating in the industries that the Utz Companies operate in and such Insurance Policies are sufficient for the current needs of the business of the Utz Companies. No Utz Company is in material breach or material default under, nor has it taken any action or failed to take any action which, with notice or the lapse of time, or both, would constitute a material breach or material default under, or permit a material increase in premium, cancellation, material reduction in coverage, material denial or non-renewal with respect to any Insurance Policy. During the twelve (12) months prior to the Effective Date, no Utz Company has received any written notice of material increase in premium (other than customary annual increases), cancellation, material reduction in coverage, material denial or nonrenewal of any Insurance Policy. Except as set forth on Section 3.16 of the Company and Sellers’ Disclosure Letter, during the twelve (12) months prior to the Effective Date, there have been no material claims by or with respect to the Utz Companies under any Insurance Policy as to which coverage has been denied or disputed in any material respect by the underwriters of such Insurance Policy. Since the date of the Latest Balance Sheet, no Utz Company has (a) failed to maintain in full force and effect any material Insurance Policy or (b) suffered any damage, destruction, theft or casualty loss to its tangible assets in excess of three hundred thousand dollars ($300,000) that is not covered by insurance. Except as set forth on Section 3.16 of the Company and Sellers’ Disclosure Letter, none of the Utz Companies has any self-insurance or co-insurance programs.

Section 3.17        Compliance with Laws; Permits.

(a)          Except as set forth on Section 3.17(a) of the Company and Sellers’ Disclosure Letter, each Utz Company is and, since the Lookback Date has been, in compliance in all material respects with all Laws applicable to the conduct of the business of the Utz Companies and, since the Lookback Date, no uncured written notices have been received by any Utz Company from any Governmental Entity or any other Person alleging a material violation of any such Laws.

(b)          Each Utz Company holds all material permits, licenses, registrations (excluding Intellectual Property registrations and certifications), approvals, consents, accreditations, waivers, exemptions and authorizations of any Governmental Entity and all material food-related quality and safety certifications, required for the ownership and use of its assets and properties or the conduct of their businesses (including for the occupation and use of the Leased Real Property) as currently conducted (collectively, “Permits”) and are in compliance in all material respects with all material terms and conditions of such Permits. All of such Permits are valid and in full force and effect and none of such Permits will be terminated as a result of, or in connection with, the consummation of the transactions contemplated by this Agreement. No Utz Company is in material default under any such Permit and no condition exists that, with the giving of notice or lapse of time or both, would constitute a material default under such Permit, and no Proceeding is pending or, to the Knowledge of the Company, threatened, to suspend, revoke, withdraw, modify or limit any such Permit in a manner that has had or would reasonably be expected to have a material adverse effect on the ability of the applicable Utz Company to use such Permit or conduct its business.

Section 3.18        Environmental Matters. Except as set forth on Section 3.18 of the Company and Sellers’ Disclosure Letter, (a) each Utz Company is, and since the Lookback Date has been, in compliance in all material respects with all Environmental Laws; (b) since the Lookback Date, each Utz Company has timely obtained and maintained, and is, and since the Lookback Date has been, in compliance in all material respects with, all permits, licenses, certificates or other authorizations required by Environmental Laws for the occupation of its properties and facilities and the conduct of its business (collectively, the “Environmental Permits”), except where the failure to have such Environmental Permits would not be material, (c) all such Environmental Permits are in full force and effect and there is no pending Proceeding to revoke or materially modify any Environmental Permit; (d) no Utz Company has received any written notice regarding any actual or alleged material violation by any Utz Company of, or material Liabilities of any Utz Company under, any Environmental Laws, the subject of which remains unresolved or under which there are continuing unsatisfied obligations; (e) no Utz Company has used, generated, manufactured, distributed, sold, treated, stored, disposed of, arranged for or permitted the disposal of, transported, handled or released, or exposed any Person to any Hazardous Materials, or owned, leased or operated any property or facility contaminated by, any Hazardous Materials, in each case, that would result in material Liability to any Utz Company; (f) there are no material Proceedings pending or, to the Knowledge of the Company, threatened against any Utz Company under any Environmental Laws; (g) no Utz Company is subject to any material outstanding Order of any Governmental Entity under Environmental Laws; (h) no consent, approval or authorization of or registration or filing with any Governmental Entity is required by Environmental Laws (including the New Jersey Industrial Site Recovery Act, N.J.S.A. 13:1K-6, et seq. and the Connecticut Transfer Act, Conn. Gen. Stat. Sections 22a-134 et seq.) or Environmental Permits in connection with the execution, delivery and performance of this Agreement or the consummation of the transactions contemplated by this Agreement; and (i) no Utz Company has assumed, undertaken, or provided an unexpired indemnity with respect to any material Liability, in each case under Environmental Laws. The Utz Companies have made available to the Buyer correct and complete copies of all Phase I environmental reports, Phase II environmental reports, environmental health and safety audits or inspections (in the case of such audits or inspections, conducted since the Lookback Date or earlier to the extent any finding contained therein is currently unresolved and material), and material documents related to any Proceeding or unresolved material Liability arising under Environmental Laws relating to any Utz Company or their current or former properties, facilities or operations, that in each case, are in the Utz Companies’ or Sellers’ possession or reasonable control.

Section 3.19        Title to and Sufficiency of Assets; No Bankruptcy. Each Utz Company has good and marketable title to, or, in the case of leased or subleased assets, a valid and binding leasehold interest in, or, in the case of licensed assets, a valid license in, all of its tangible assets, properties and rights free and clear of all Liens other than Permitted Liens (collectively, the “Assets”). The Assets constitute all of the material tangible assets, properties and rights necessary to conduct the business of the Utz Companies after the Closing, in all material respects, as it has been operated for the six (6) months prior to the Effective Date. As of December 30, 2019, the Restructuring has been consummated in the order set forth on, and otherwise in accordance with the terms of, Section 3.19 of the Company and Sellers’ Disclosure Letter. None of the Utz Companies is the subject of any bankruptcy, dissolution, liquidation, reorganization or similar Proceeding.

Section 3.20        Food Law Compliance. Except as set forth on Section 3.20 of the Company and Sellers’ Disclosure Letter,

(a)          Since the Lookback Date, no Utz Company (i) has introduced into commerce any product that is adulterated or misbranded, as those terms are defined in the Food Laws, (ii) has in its inventory products that are adulterated or misbranded, (iii) has caused any product in commerce to become adulterated or misbranded, or (iv) has committed a “prohibited act,” as that term is used under Food Laws.

(b)          The food products manufactured or distributed by or for the Utz Companies are, and since the Lookback Date have been, produced, manufactured, labeled, packaged, held, transported, imported, exported, distributed, marketed, and sold by or for the Utz Companies in compliance in all material respects with all applicable Food Laws including the FDA’s regulations for Current Good Manufacturing Practices, Hazard Analysis and Risk Based Preventive Controls for Food for Humans and Animals, Foreign Supplier Verification Programs, Sanitary Transportation of Food, Mitigation Strategies to Protect Food Against Intentional Adulteration, food additives, and food labeling and claims. Prior to leaving the possession and control of the Utz Companies, all food products manufactured or held by or for any Utz Company are, and since the Lookback Date have been, to the extent applicable and required by Law, manufactured and held in a facility registered at all times with the FDA, operating under a grant of inspection from USDA’s Food Safety and Inspection Service, and otherwise appropriately licensed with all comparable Governmental Entities with jurisdiction such as state and local health authorities.

(c)          The Utz Companies possess a reasonable basis (as that term is defined by the FDA and the FTC) for all claims made about the food products marketed by the Utz Companies currently and since the Lookback Date, including competent and reliable scientific evidence for any health benefit claims for such products.

(d)          Since the Lookback Date, the Utz Companies have not received any written statement, warning, notice, inspection report, complaint or any other document from a Governmental Entity providing notice that any Utz Company may be in violation of any Food Law, and to the Knowledge of the Company, no Governmental Entity is currently investigating any Utz Company with regard to any noncompliance with any Food Law.

Section 3.21        Product Recalls, Liabilities and Warranties. Except as set forth on Section 3.21(a) of the Company and Sellers’ Disclosure Letter (i) there are no open, pending, or to the Knowledge of the Company, threatened recalls or withdrawals of any product manufactured, co-manufactured, licensed, sold or delivered by the Utz Companies, other than product returns in the Ordinary Course of Business, (ii) to the Knowledge of the Company, there are no facts or circumstances that would cause any Governmental Entity to request or require a product recall, withdrawal, recovery, or other action to quarantine or remove any product manufactured or sold by the Company from the marketplace, and (iii) there are no pending or, to the Knowledge of the Company, threatened, and since the Lookback Date have not been any, material claims not in the Ordinary Course of Business under or pursuant to any warranty, whether expressed or implied, regarding any product manufactured, co-manufactured, licensed, sold or delivered prior to the Closing Date by any Utz Company that are not reserved for in accordance with GAAP in the Latest Balance Sheet. Except as set forth on Section 3.21(b) of the Company and Sellers’ Disclosure Letter, all of the products manufactured, co-manufactured, licensed, sold or delivered by the Utz Companies, have been manufactured, co-manufactured, licensed, sold or delivered in all material respects in conformity with all applicable express warranties and, in all material respects, with all applicable contractual commitments while in their possession or control, and no Utz Company has any material pending warranty claims asserted against it, except for claims which would not have a Material Adverse Effect.

Section 3.22        Accounts Receivable and Payable.

(a)          Sellers have made available to the Buyer a correct and complete list and the aging of all accounts receivable of the Utz Companies as of the Effective Date (“Accounts Receivable”). The Accounts Receivable represent valid obligations and bona fide transactions arising from or relating to sales actually made by the Utz Companies and the Accounts Receivable are, subject to applicable reserves, not subject to any known refunds or adjustments or any defenses or rights of set off or other Liens (other than Permitted Liens). All such Accounts Receivable relate solely to the sale of goods to customers of the Utz Companies, none of whom are Affiliates of any Utz Company. Except to the extent paid prior to the Closing Date, to the Knowledge of the Company the Accounts Receivable are, or will be as of the Closing Date, collectible net of the respective reserve shown in the corresponding line items on the Financial Statements or on the accounting records of Utz Companies as of the Closing Date (which reserves are adequate and calculated consistent with past practice). To the Knowledge of the Company, no Utz Company has received written notice from or on behalf of any obligor of any material Accounts Receivable that such obligor is unwilling or unable to pay a material portion of such Accounts Receivable.

(b)          All accounts payable of the Utz Companies, whether reflected on the Latest Balance Sheet or subsequently created, are valid payables that have arisen from bona fide transactions in the Ordinary Course of Business of the Utz Companies. Since the date of the Latest Balance Sheet, the Utz Companies have paid their accounts payable in the Ordinary Course of Business, except for those which are being disputed in good faith.

Section 3.23        Trade & Anti-Corruption Compliance.

(a)          Since the Extended Lookback Date, in connection with or relating to the business of the Utz Companies, no Utz Company nor any of its directors, officers, managers, or to the Knowledge of the Company, its employees, agents or third-party representatives (i) has made, authorized, solicited or received any unlawful bribe, rebate, payoff, influence payment or kickback, (ii) has used or is using any corporate funds for any illegal contributions, gifts, entertainment, hospitality, travel or other unlawful expenses, or (iii) has, directly or indirectly, made, offered, authorized, facilitated, received or promised to make or receive, any payment, contribution, gift, entertainment, bribe, rebate, kickback, financial or other advantage, or anything else of value, regardless of form or amount, to or from any officer of a Governmental Entity or other Person in violation of applicable Anti-Corruption Laws. To the Knowledge of the Company, there are no legal, regulatory, or administrative Proceedings, filings, Orders, or governmental investigations alleging (i) any such payments, contributions, gifts, entertainment, bribes, rebates, kickbacks, financial or other advantages or (ii) any other violation of any Anti-Corruption Law.

(b)          The transactions of the Utz Companies are accurately reflected on their respective books and records in compliance in all material respects with applicable Anti-Corruption Laws.

Section 3.24        Affiliate Transactions.

(a)          Except as set forth on Section 3.24(a) of the Company and Sellers’ Disclosure Letter, (x) there are no Contracts (except for the Governing Documents) between any of the Utz Companies, on the one hand, and any Interested Party (other than another Utz Company) on the other hand and (y) no Interested Party (other than another Utz Company) (i) owes any amount to any Utz Company, (ii) owns any material assets, tangible or intangible, necessary for the conduct of the business of any Utz Company or (iii) owns any interest in, or is a director, officer, or owner of, or lender to or borrower from, or has the right to participate in the profits of, any Person which is a competitor, supplier, customer or landlord of any Utz Company (other than in connection with ownership of less than five percent (5%) of the stock of a publicly traded company) (such Contracts or arrangements described in clauses (x) and (y), “Affiliated Transactions”).

(b)          Except as set forth on Section 3.24(b) of the Company and Sellers’ Disclosure Letter, there have been no Prohibited Affiliate Transactions since December 30, 2019.

Section 3.25        Compliance with Applicable Sanctions and Embargo Laws.

(a)          Since the Extended Lookback Date, no Utz Company, nor any of their directors, officers, managers, nor, to the Knowledge of the Company, its employees, agents or third-party representatives is (i) a person or entity named on the List of Specially Designated Nationals and Blocked Persons administered by OFAC, the OFAC Consolidated Sanctions List or in any Executive Order issued by the President of the United States and administered by OFAC, or a person or entity prohibited by any OFAC sanctions program or a person or entity whose property and interests in property subject to U.S. jurisdiction are otherwise blocked under any U.S. Laws, Executive orders or regulations; (ii) an entity owned, directly or indirectly, individually or in the aggregate, fifty (50%) percent or more by one (1) or more persons described in clause (i); (iii) a person or entity listed on the Sectoral Sanctions Identifications List (“SSI List”) maintained by OFAC or otherwise determined by OFAC to be subject to one (1) or more of the Directives issued under Executive Order 13662 of March 20, 2014, at the time that it is or was in effect, or an entity owned, directly or indirectly, individually or in the aggregate, fifty percent (50%) or more by one (1) or more persons or entities that are subject to the SSI List restrictions; or (iv) a person or entity named on the U.S. Department of Commerce, Bureau of Industry and Security Denied Persons List, Entity List, or Unverified List.

(b)          No Utz Company nor, any of their directors, officers, managers, nor, to the Knowledge of the Company, its employees, agents or third-party representatives, is or since the Extended Lookback Date, has been: (i) a Sanctioned Person; (ii) operating in, organized in, conducting business with, or otherwise engaging in dealings with or for the benefit of any Sanctioned Person or in any Sanctioned Country in material violation of applicable Sanctions in connection with the business of any Utz Company; or (iii) in material violation of any applicable Sanctions or applicable Export Control Laws or U.S. anti-boycott requirements (the “Trade Control Laws”), in connection with the business of any Utz Company.

(c)          The Utz Companies have not, since the Extended Lookback Date, violated in any material respect the Trade Control Laws.

(d)          To the Knowledge of the Company, there are no legal, regulatory, or administrative Proceedings, filings, Orders, or governmental investigations alleging any violations of the Trade Control Laws.

Section 3.26        Inventory. Except for any inventory that is subject to a reserve for obsolete or unmarketable inventory shown on the Latest Balance Sheet and except for inventory that has become obsolete or unmarketable in the Ordinary Course of Business since the date of the Last Balance Sheet: (a) all inventory of the Utz Companies shown on the Latest Balance Sheet is saleable, usable and merchantable in the Ordinary Course of Business of the Utz Companies and conforms in all material respects with any applicable contractual commitments and requirements of any Governmental Entity and (b) all such inventory is of a quality adequate to satisfy existing Contracts, purchase orders and bookings of the Utz Companies.

Section 3.27        Inspections; Buyer’s Representations.The Company has undertaken such investigation and has been provided with and has evaluated such documents and information as it has deemed necessary to enable it to make an informed and intelligent decision with respect to the execution, delivery and performance of this Agreement. The Company agrees to engage in the transactions contemplated by this Agreement based upon its own inspection and examination of Buyer and on the accuracy of the representations and warranties set forth in Article V and any certificate delivered by Buyer pursuant to this Agreement and hereby disclaims reliance upon any express or implied representations or warranties of any nature made by Buyer or its Affiliates or representatives, except for those set forth in Article V and in any certificate delivered by Buyer pursuant to this Agreement. The Company specifically acknowledges and agrees to Buyer’s disclaimer of any representations or warranties other than those set forth in Article V and in any certificate delivered by Buyer pursuant to this Agreement, whether made by either Buyer or any of its Affiliates or representatives, and of all Liability and responsibility for any representation, warranty, projection, forecast, statement, or information made, communicated, or furnished (orally or in writing) to the Company, Sellers, their Affiliates or representatives (including any opinion, information, projection, or advice that may have been or may be provided to the Company, Sellers, their Affiliates or representatives by Buyer or any of its Affiliates or representatives), other than those set forth in Article V and in any certificate delivered by Buyer pursuant to this Agreement. The Company specifically acknowledges and agrees that, without limiting the generality of this Section 3.27, neither Buyer nor any of its Affiliates or representatives has made any representation or warranty with respect to any projections or other future forecasts. The Company specifically acknowledges and agrees that except for the representations and warranties set forth in Article V and in any certificate delivered by Buyer pursuant to this Agreement, Buyer has not made any other express or implied representation or warranty with respect to Buyer, its assets or Liabilities, the businesses of Buyer or the transactions contemplated by this Agreement or the Ancillary Agreements.

Article IV
REPRESENTATIONS AND WARRANTIES OF SELLERS

As an inducement to the Buyer to enter into this Agreement and consummate the transactions contemplated by this Agreement, except as set forth in the applicable section of the Company and Sellers’ Disclosure Letter, Sellers hereby jointly and severally represent and warrant to the Buyer as follows:

Section 4.1          Organization; Authority; Enforceability.Such Seller is a series of UM Partners, LLC, a limited liability company duly formed, validly existing, and in good standing under the Laws of the State of Delaware. Such Seller is qualified to do business and is in good standing as a foreign entity in each jurisdiction in which the character of its properties, or in which the transaction of its business, makes such qualification necessary, except where the failure to be so qualified and in good standing (or equivalent) would not, individually or in the aggregate, reasonably be expected to have a material adverse effect on such Seller. Such Seller has the limited liability company power and authority to execute and deliver this Agreement and the Ancillary Agreements to which such Seller is a party and to consummate the transactions contemplated hereby and thereby. The board of managers of such Seller has duly approved this Agreement and the Ancillary Agreements to which such Seller is a party and the transactions contemplated hereby and thereby. No other limited liability company proceedings on the part of such Seller are necessary to approve and authorize the execution, delivery and performance of this Agreement and the Ancillary Agreements to which such Seller is a party and the consummation of the transactions contemplated hereby and hereby. This Agreement has been duly executed and delivered by such Seller and constitutes the valid and binding agreement of such Seller, enforceable against such Seller in accordance with its terms, except as such may be limited by bankruptcy, insolvency, reorganization or other Laws affecting creditors’ rights generally and by general equitable principles. Correct and complete copies of the Governing Documents of each Seller, as in effect on the date hereof, have been made available to the Buyer. Such Seller is not the subject of any bankruptcy, dissolution, liquidation, reorganization or similar proceeding.

Section 4.2          Capitalization. Such Seller has good and valid title to the Company Interests as of the Effective Date and, as of the Closing, such Seller will have good and valid title to the Company Units owned by such Seller free and clear of all Liens, in each case other than Securities Liens and other than as set forth in the Company’s LLCA. Except as set forth on Section 4.2 of the Company and Sellers’ Disclosure Letter, such Seller is not a party to (i) any option, warrant, purchase right or other Contract (other than this Agreement) that would reasonably require such Seller to sell, transfer or otherwise dispose of any of the Company Units owned by such Seller or (ii) any voting trust, proxy, or other Contract with respect to the voting of the Company Units owned by such Seller. Other than the Company Units owned by such Seller, such Seller does not own or have the right to acquire any other Equity Interests of any Utz Company. Other than the BSOF Common Units and BSOF Preferred Units, no Person holds any Equity Interest in Sellers other than Family Members and Affiliates of Family Members.

Section 4.3          Noncontravention.Except as set forth on Section 4.3 of the Company and Sellers’ Disclosure Letter or the filings pursuant to Section 7.8, the consummation by such Seller of the transactions contemplated by this Agreement and the Ancillary Agreements to which such Seller is a party do not (a) conflict with or result in any breach of any of the material terms, conditions or provisions of, (b) constitute a material default under (whether with or without the giving of notice, the passage of time or both), (c) result in a material violation of, (d) give any third party the right to terminate or accelerate, or cause any termination or acceleration of, any material right or material obligation under, (e) result in the creation of any Lien upon the Company Units under, (f) require any approval under, from or pursuant to, or (g) require any filing with, (x) any material Contract to which such Seller is a party, (y) any Governing Document of such Seller or (z) any Governmental Entity under or pursuant to any Law or Order to which such Seller is bound or subject, with respect to clauses (x) and (z) that are or would reasonably be expected to be material to such Seller. Such Seller is not in violation of any of the Governing Documents of such Seller.

Section 4.4          Information Supplied. The information supplied or to be supplied by the Sellers with respect to the Sellers for inclusion in the Form S-4, any other document submitted to any other Governmental Entity or any announcement or public statement regarding the transactions contemplated by this Agreement (including the Signing Press Release and the Closing Press Release) shall not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances in which they are made, not misleading at (a) the time such information is filed, submitted or made publicly available, and with respect to information supplied by the Sellers for inclusion in the Form S-4, such information is not revised by any subsequently filed amendment prior to the time that the Form S-4 is declared effective by the SEC, to the extent such initially included information does not result in Liabilities to the Buyer under the Securities Act or the Securities Exchange Act, (b) the time the Form S-4 is declared effective by the SEC, (c) the time the Form S-4 (or any amendment thereof or supplement thereto) is first mailed to the Buyer Shareholders, or (d) the time of the Buyer Shareholder Meeting (in each case, subject to the qualifications and limitations set forth in the materials provided by the Sellers or that are included in such filings and/or mailings), except that no warranty or representation is made by either Seller with respect to statements made or incorporated by reference therein based on information supplied by Buyer or its Affiliates for inclusion therein.

Section 4.5          Litigation. Except as set forth on Section 4.5 of the Company and Sellers’ Disclosure Letter, there are no material Proceedings (or to the Knowledge of the Sellers, investigations) pending or, to the Knowledge of the Sellers, threatened against such Seller or to the Knowledge of the Sellers, any director, officer or employee of such Seller (in their capacity as such), and during the past two (2) years there have not been any such Proceedings and such Seller is not subject to or bound by any material outstanding Orders. There are no material Proceedings pending or threatened by either Seller against any other Person.

Section 4.6          Brokerage. Except as set forth on Section 4.6 of the Company and Sellers’ Disclosure Letter, such Seller has not incurred any Liability in connection with this Agreement or the Ancillary Agreements, or the transactions contemplated hereby or thereby, that would result in the obligation of any Utz Company or the Buyer to pay any finder’s fee, brokerage or agent’s commissions or other like payments.

Section 4.7          Investment Intent.

(a)          Such Seller understands and acknowledges that the acquisition of the Buyer Class V Voting Stock (and the Buyer Class A Common Stock into which the Buyer Class V Voting Stock, the Retained Company Units and the Retained Restricted Company Units may exchange into pursuant to the Company A&R LLCA) involves substantial risk. Such Seller can bear the economic risk of its investment (which such Seller acknowledges may be for an indefinite period) and has such knowledge and experience in financial or business matters that such Seller is capable of evaluating the merits and risks of its investment in the Buyer Class V Voting Stock (and the Buyer Class A Common Stock into which the Buyer Class V Voting Stock, the Retained Company Units and the Retained Restricted Company Units may exchange into pursuant to the Company A&R LLCA).

(b)          Such Seller is acquiring the Buyer Class V Voting Stock (and the Buyer Class A Common Stock into which the Buyer Class V Voting Stock, the Retained Company Units and the Retained Restricted Company Units may exchange into pursuant to the Company A&R LLCA) for its own account, for investment purposes only and not with a view toward, or for sale in connection with, any distribution thereof, or with any present intention of distributing or selling any Buyer Class V Voting Stock (and the Buyer Class A Common Stock into which the Buyer Class V Voting Stock, the Retained Company Units and the Retained Restricted Company Units may exchange into pursuant to the Company A&R LLCA), in each case, in violation of the federal securities Laws, any applicable foreign or state securities Laws or any other applicable Law.

(c)          Such Seller qualifies as an “accredited investor,” as such term is defined in Rule 501(a) promulgated pursuant to the Securities Act.

(d)          Such Seller understands and acknowledges that the issuance, sale or resale of the Buyer Class V Voting Stock has not been registered under the Securities Act, any United States state securities Laws or any other applicable foreign Law. Such Seller acknowledges that such securities may not be transferred, sold, offered for sale, pledged, hypothecated or otherwise disposed of without registration under the Securities Act and any other provision of applicable United States federal, United States state, or other Law or pursuant to an applicable exemption therefrom. Such Seller acknowledges that there is no public market for the Buyer Class V Voting Stock and that there can be no assurance that a public market will develop.

Section 4.8          Compliance with Laws. Each Seller is, and has been since January 1, 2018, in compliance in all material respects with all Laws applicable to the conduct of the business of the Sellers, and no uncured written notices have been received by any Seller from any Governmental Entity or any other Person alleging a material violation of any such Laws.

Section 4.9          Inspections; Buyer’s Representations. Each Seller is an informed and sophisticated purchaser, and has engaged advisors, experienced in the evaluation and investment in businesses such as the Buyer. Each Seller has undertaken such investigation and has been provided with and has evaluated such documents and information as it has deemed necessary to enable it to make an informed and intelligent decision with respect to the execution, delivery and performance of this Agreement. Each Seller agrees to engage in the transactions contemplated by this Agreement based upon its own inspection and examination of the Buyer and on the accuracy of the representations and warranties set forth in Article V and any certificate delivered by Buyer pursuant to this Agreement and hereby disclaims reliance upon any express or implied representations or warranties of any nature made by Buyer or its Affiliates or representatives, except for those set forth in Article V and in any certificate delivered by Buyer pursuant to this Agreement. Each Seller specifically acknowledges and agrees to Buyer’s disclaimer of any representations or warranties other than those set forth in Article V and in any certificate delivered by Buyer pursuant to this Agreement, whether made by either Buyer or any of its Affiliates or representatives, and of all Liability and responsibility for any representation, warranty, projection, forecast, statement, or information made, communicated, or furnished (orally or in writing) to the Company, Sellers, their Affiliates or representatives (including any opinion, information, projection, or advice that may have been or may be provided to the Company, Sellers, their Affiliates or representatives by Buyer or any of its Affiliates or representatives), other than those set forth in Article V and in any certificate delivered by Buyer pursuant to this Agreement. Each Seller specifically acknowledges and agrees that, without limiting the generality of this Section 4.9, neither Buyer nor any of its Affiliates or representatives has made any representation or warranty with respect to any projections or other future forecasts. Each Seller specifically acknowledges and agrees that except for the representations and warranties set forth in Article V and in any certificate delivered by Buyer pursuant to this Agreement, Buyer has not made any other express or implied representation or warranty with respect to Buyer, its assets or Liabilities, the businesses of Buyer or the transactions contemplated by this Agreement or the Ancillary Agreements.

Article V
REPRESENTATIONS AND WARRANTIES OF THE BUYER

As an inducement to Sellers and the Company to enter into this Agreement and consummate the transactions contemplated by this Agreement, except (a) for all representations and warranties of the Buyer, as set forth in the applicable section of the Buyer Disclosure Letter, or (b) for all representations and warranties of the Buyer other than those set forth in Sections 5.1, 5.2(a), 5.2(b), 5.2(c), 5.2(e), 5.3, 5.8, 5.9, 5.12 and 5.15, as disclosed in any report, schedule, form statement or other document filed with, or furnished to, the SEC by the Buyer and publicly available prior to the Effective Date, the Buyer hereby represents and warrants to each of the Sellers and the Company as follows:

Section 5.1          Organization; Authority; Enforceability. Until the occurrence of the Domestication, the Buyer is an exempted company with limited liability duly incorporated, validly existing and in good standing under the Laws of the Cayman Islands and upon the occurrence of the Domestication, the Buyer will be a Delaware corporation duly formed, validly existing and in good standing under the Laws of the State of Delaware. The Buyer is qualified to do business and is in good standing as a foreign entity in each jurisdiction in which the character of its properties, or in which the transaction of its business, makes such qualification necessary, except where the failure to be so qualified and in good standing (or equivalent) would not have a Buyer Material Adverse Effect. The Buyer has the requisite power and authority to execute and deliver this Agreement and the Ancillary Agreements to which it is a party and to consummate the transactions contemplated hereby and thereby. The execution, delivery and performance of this Agreement, the Ancillary Agreements to which the Buyer is a party and the transactions contemplated hereby and thereby have been duly approved and authorized by all requisite Board action on the part of the Buyer. No other proceedings on the part of the Buyer (including any action by the Buyer Board or the Buyer Shareholders), except for the receipt of the Required Vote, are necessary to approve and authorize the execution, delivery or performance of this Agreement and the Ancillary Agreements to which the Buyer is a party and the consummation of the transactions contemplated hereby and thereby. This Agreement has been, and the Ancillary Agreements to be executed and delivered by the Buyer at Closing will be, duly executed and delivered by Buyer and constitute valid and binding agreement of the Buyer, enforceable against the Buyer in accordance with their respective terms, except as such may be limited by bankruptcy, insolvency, reorganization or other Laws affecting creditors’ rights generally and by general equitable principles. Correct and complete copies of the Second Amended and Restated Memorandum and Articles of Association of the Buyer, as in effect on the Effective Date, are filed as Exhibit 3.1 to the Form 8-K filed with the SEC on October 10, 2018. The Buyer is not the subject of any bankruptcy, dissolution, liquidation, reorganization or similar proceeding.

Section 5.2          Capitalization.

(a)          Prior to the Domestication, the authorized share capital of the Buyer consists of (i) four hundred million (400,000,000) Buyer Class A Ordinary Shares, (ii) fifty million (50,000,000) Buyer Class B Ordinary Shares, and (iii) one million (1,000,000) preferred shares, par value one ten-thousandth of one dollar ($0.0001) per share (“Buyer Preferred Shares”). After the Domestication, the authorized capital stock of the Buyer will be as set forth in the Buyer Certificate of Incorporation. Prior to the Domestication (without giving effect to the Forward Purchase Securities, the Buyer Share Redemptions, the conversion of Buyer Class B Ordinary Shares into Buyer Class B Common Stock pursuant to the Sponsor Side Letter, the conversion of Buyer Class B Ordinary Shares into Buyer Class A Ordinary Shares pursuant to the applicable Buyer Governing Documents, or the Permitted Equity Financing), (A) forty-four million (44,000,000) Buyer Class A Ordinary Shares were issued and outstanding, (B) eleven million eight hundred seventy-five thousand (11,875,000) Buyer Class B Ordinary Shares were issued and outstanding, (C) no Buyer Preferred Shares were issued and outstanding, and (D) twenty-one million, eight hundred sixty-six thousand, six hundred sixty-six (21,866,666) warrants were issued and outstanding, in such amounts, type, exercise price and with such expiration date as set forth on Section 5.2(a)(D) of the Buyer Disclosure Letter (the “Buyer Warrants”) entitling the holder thereof to purchase one (1) Buyer Class A Ordinary Share at an exercise price of eleven dollars and fifty cents ($11.50) per Buyer Warrant. After the Domestication (without giving effect to the Forward Purchase Securities, the Buyer Share Redemptions, the conversion of Buyer Class B Ordinary Shares into Buyer Class B Common Stock pursuant to the Sponsor Side Letter, the conversion of Buyer Class B Ordinary Shares into Buyer Class A Ordinary Shares or Buyer Class A Common Stock pursuant to the applicable Buyer Governing Documents, or the Permitted Equity Financing), (A) forty-four million (44,000,000) shares of Buyer Class A Common Stock will be issued and outstanding, (B) no Buyer Preferred Shares will be issued and outstanding, and (C) twenty-one million, eight hundred sixty-six thousand, six hundred sixty-six (21,866,666) Buyer Warrants will be issued and outstanding, entitling the holder thereof to purchase one (1) share of Buyer Class A Common Stock at an exercise price of eleven dollars and fifty cents ($11.50) per Buyer Warrant. The exercise price of each Buyer Warrant has not been reduced to an amount less than $11.50 per Buyer Warrant. The Equity Interests set forth in this Section 5.2(a) comprise all of the Equity Interests of the Buyer that are issued and outstanding (without giving effect to the Forward Purchase Securities, the Buyer Share Redemptions, the conversion of Buyer Class B Ordinary Shares into Buyer Class B Common Stock pursuant to the Sponsor Side Letter, the conversion of Buyer Class B Ordinary Shares into Buyer Class A Ordinary Shares or Buyer Class A Common Stock pursuant to the applicable Buyer Governing Documents, or the Permitted Equity Financing).

(b)          Except as (x) set forth on Section 5.2(b) of the Buyer Disclosure Letter, or (y) set forth in this Agreement (including as set forth in Section 5.2(a)), the Ancillary Agreements or the Governing Documents of the Buyer:

(i)          there are no outstanding options, warrants, Contracts, calls, puts, rights to subscribe, conversion rights or other similar rights to which the Buyer is a party or which are binding upon Buyer providing for the offer, issuance, redemption, exchange, conversion, voting, transfer, disposition or acquisition of any of its Equity Interests;

(ii)         Buyer is not subject to any obligation (contingent or otherwise) to repurchase or otherwise acquire or retire any of its Equity Interests;

(iii)        Buyer is not a party to any voting trust, proxy or other agreement or understanding with respect to the voting of any of its Equity Interests;

(iv)        there are no contractual equityholder preemptive or similar rights, rights of first refusal, rights of first offer or registration rights in respect of Equity Interests of Buyer to which Buyer is party; and

(v)         Buyer has not violated in any material respect any applicable securities Laws or any preemptive or similar rights created by Law, Governing Document or Contract to which Buyer is a party in connection with the offer, sale or issuance of any of its Equity Interests.

(c)          All of the issued and outstanding Equity Interests of the Buyer, have been duly authorized, validly issued, fully paid and non-assessable and free of any preemptive rights in respect thereto, and were not issued in violation of any preemptive rights, call options, rights of first refusal or similar rights of any Person or applicable Law, other than in each case Securities Liens.

(d)          Except as set forth on Section 5.2(d) of the Buyer Disclosure Letter, the Buyer does not own, directly or indirectly, any Equity Interests, participation or voting right or other investment (whether debt, equity or otherwise) in any Person (including any Contract in the nature of a voting trust or similar agreement or understanding) or any other equity equivalents in or issued by any other Person.

(e)          Upon issuance and delivery of the Buyer Class V Voting Stock to the Sellers at the Closing, such Buyer Class V Voting Stock will (i) be duly authorized and validly issued, and fully paid and nonassessable, (ii) be issued in compliance in all material respects with applicable Law, (iii) not be issued in breach or violation of any preemptive rights or any Contract, (iv) be issued to Sellers with good and valid title, free and clear of any Liens other than Securities Liens, and (v) represent all of the Buyer Class V Voting Stock issued or outstanding.

(f)          Other than up to $2,000,000 of working capital loans that may be incurred during the Pre-Closing Period, the Buyer has no Liability with respect to indebtedness for borrowed money.

Section 5.3          Brokerage.Except as set forth on Section 5.3 of the Buyer Disclosure Letter, the Buyer has not incurred any Liability in connection with this Agreement or the Ancillary Agreements, or the transactions contemplated hereby or thereby, that would result in the obligation of the Sellers, any Utz Company or Buyer to pay a finder’s fee, brokerage or agent’s commissions or other like payments.

Section 5.4          Trust Account. As of the Effective Date, the Buyer has at least four hundred fifty one million dollars ($451,000,000) (the “Trust Amount”) in the Trust Account, with such funds invested in United States government securities or in money market funds meeting certain conditions under Rule 2a-7 promulgated under the Investment Company Act of 1940, and held in trust by the Trustee pursuant to the Trust Agreement. The Trust Agreement is in full force and effect and is a legal, valid and binding obligation of the Buyer, enforceable in accordance with its terms. The Trust Agreement has not been terminated, repudiated, rescinded, amended, supplemented or modified, in any respect by the Buyer or the Trustee, and no such termination, repudiation, rescission, amendment, supplement or modification is contemplated by the Buyer. The Buyer is not a party to or bound by any side letters with respect to the Trust Agreement or (except for the Trust Agreement) any Contracts, arrangements or understandings, whether written or oral, with the Trustee or any other Person that would (i) cause the description of the Trust Agreement in the Buyer SEC Documents to be inaccurate in any material respect or (ii) explicitly by their terms, entitle any Person (other than (x) the Buyer Shareholders who shall have exercised their rights to participate in the Buyer Share Redemptions, (y) the underwriters of the Buyer’s initial public offering, who are entitled to the Deferred Discount (as such term is defined in the Trust Agreement) and (z) the Buyer with respect to income earned on the proceeds in the Trust Account to cover any of its Tax obligations and up to $100,000 of interest on such proceeds to pay dissolution expenses) to any portion of the proceeds in the Trust Account. There are no Proceedings (or to the Knowledge of the Buyer, investigations) pending or, to the Knowledge of the Buyer, threatened with respect to the Trust Account.

Section 5.5          Buyer SEC Documents; Controls.

(a)          The Buyer has timely filed or furnished all material forms, reports, schedules, statements and other documents required to be filed by it with the SEC since the consummation of the initial public offering of the Buyer’s securities, together with any material amendments, restatements or supplements thereto, and all such forms, reports, schedules, statements and other documents required to be filed or furnished under the Securities Act or the Securities Exchange Act (excluding Section 16 under the Securities Exchange Act) (all such forms, reports, schedules, statements and other documents filed with the SEC, the “Buyer SEC Documents”). As of their respective dates, each of the Buyer SEC Documents, as amended (including all financial statements included therein, exhibits and schedules thereto and documents incorporated by reference therein), compiled in all material respects with the applicable requirements of the Securities Act, or the Securities Exchange Act, as the case may be, and the rules and regulations of the SEC thereunder applicable to such Buyer SEC Documents. None of the Buyer SEC Documents contained, when filed or, if amended prior to the Effective Date, as of the date of such amendment with respect to those disclosures that are amended, any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.

(b)          Each of the financial statements of the Buyer included in the Buyer SEC Documents, including all notes and schedules thereto, complied in all material respects, when filed or if amended prior to the Effective Date, as of the date of such amendment, with the rules and regulations of the SEC with respect thereto, were prepared in accordance with GAAP applied on a consistent basis during the periods involved (except as may be indicated in the notes thereto or, in the case of the unaudited statements, as permitted by Rule 10-01 of Regulation S-X of the SEC) and fairly present in all material respects in accordance with applicable requirements of GAAP (subject, in the case of the unaudited statements, to normal year-end audit adjustments) the financial position of the Buyer, as of their respective dates and the results of operations and the cash flows of the Buyer, for the periods presented therein. Each of the financial statements of the Buyer included in the Buyer SEC Documents were derived from the books and records of the Buyer, which books and records are, in all material respects, correct and complete and have been maintained in all material respects in accordance with commercially reasonable business practices.

(c)          No notice of any SEC review or investigation of the Buyer or Buyer SEC Documents has been received by the Buyer. Since the consummation of its initial public offering, all comment letters received by the Buyer from the SEC or the staff thereof and all responses to such comment letters filed by or on behalf of the Buyer are publicly available on the SEC’s EDGAR website.

(d)          Since the consummation of the initial public offering of the Buyer’s securities, the Buyer has timely filed all certifications and statements required by (x) Rule 13a-14 or Rule 15d-14 under the Exchange Act or (y) 18 U.S.C. Section 1350 (Section 906 of the Sarbanes-Oxley Act of 2002) with respect to any Buyer SEC Report. Each such certification is correct and complete. The Buyer maintains disclosure controls and procedures required by Rule 13a-15 or Rule 15d-15 under the Exchange Act; such controls and procedures are reasonably designed to ensure that all material information concerning the Buyer is made known on a timely basis to the individuals responsible for the preparation of the Buyer’s SEC filings. As used in this Section 5.5(d), the term “file” shall be broadly construed to include any manner in which a document or information is furnished, supplied or otherwise made available to the SEC.

(e)          The Buyer has designed and maintains a system of internal controls over financial reporting, as defined in Rules 13a-15(f) and 15d-15(f) of the Exchange Act, sufficient to provide reasonable assurances regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with GAAP. The Buyer maintains a system of internal accounting controls sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorizations, (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain asset accountability and (iii) access to assets is permitted only in accordance with management’s general or specific authorization.

Section 5.6          Information Supplied; Form S-4. The information supplied or to be supplied by the Buyer for inclusion in the Form S-4, the Additional Buyer Filings, any other Buyer SEC Filing, any document submitted to any other Governmental Entity or any announcement or public statement regarding the transactions contemplated by this Agreement (including the Signing Press Release and the Closing Press Release) shall not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances in which they are made, not misleading at (i) the time such information is filed, submitted or made publicly available, (ii) the time the Form S-4 is declared effective by the SEC, (iii) the time the Form S-4 (or any amendment thereof or supplement thereto) is first mailed to the Buyer Shareholders, or (iv) the time of the Buyer Shareholder Meeting (subject to the qualifications and limitations set forth in the materials provided by the Buyer or that are included in such filings and/or mailings), except that no warranty or representation is made by the Buyer with respect to statements made or incorporated by reference therein based on information supplied by the Utz Companies, the Sellers or their Affiliates for inclusion therein. The Form S-4 will comply in all material respects with the applicable requirements of the Securities Act, the Securities Exchange Act and the rules and regulations of the SEC thereunder applicable to the Form S-4.

Section 5.7          Litigation. There are no material Proceedings (or to the Knowledge of the Buyer, investigations) pending or, to the Knowledge of the Buyer, threatened against the Buyer or, to the Knowledge of the Buyer, any director, officer or employee of the Buyer (in their capacity as such) and during the past two (2) years there have not been any such Proceedings and the Buyer is not subject to or bound by any material outstanding Orders . There are no material Proceedings pending or threatened by the Buyer against any other Person.

Section 5.8          Listing. Prior to the Domestication, the issued and outstanding Buyer Class A Ordinary Shares and the Buyer Warrants (the foregoing, collectively, the “Buyer Public Securities”) are registered pursuant to Section 12(b) of the Securities Exchange Act and are listed for trading on the Stock Exchange. There is no Proceeding or investigation pending or, to the Knowledge of the Buyer, threatened against the Buyer by the Stock Exchange or the SEC with respect to any intention by such entity to deregister the Buyer Public Securities or prohibit or terminate the listing of the Buyer Public Securities on the Stock Exchange. The Buyer has taken no action that is designed to terminate the registration of the Buyer Public Securities under the Securities Exchange Act. The Buyer has not received any written or, to the Knowledge of the Buyer, oral deficiency notice from the Stock Exchange relating to the continued listing requirements of the Buyer Public Securities.

Section 5.9          Investment Company. The Buyer is not an “investment company” within the meaning of the Investment Company Act of 1940.

Section 5.10        Noncontravention. Except for the filings pursuant to Section 7.8, the consummation by the Buyer of the transactions contemplated by this Agreement and the Ancillary Agreements do not (i) conflict with or result in any breach of any of the material terms, conditions or provisions of, (ii) constitute a material default under (whether with or without the giving of notice, the passage of time or both), (iii) result in a material violation of, (iv) give any third party the right to terminate or accelerate, or cause any termination or acceleration of, any material right or material obligation under, (v) result in the creation of any Lien upon its Equity Interests under, (vi) require any approval under, from or pursuant to, or (vii)  require any filing with, (x) any Contract or lease to which the Buyer is a party, (y) any Governing Document of the Buyer, or (z) any Governmental Entity under or pursuant to any Law or Order to which the Buyer is bound or subject, with respect to clauses (x) and (z) that are or would reasonably be expected to be material to Buyer. The Buyer is not in violation of any of its Governing Documents.

Section 5.11        Business Activities.

(a)          Since its organization, other than as described in the Buyer SEC Reports, the Buyer has not conducted any material business activities other than activities directed toward the accomplishment of a Business Combination. Except as set forth in the Buyer Governing Documents, there is no Contract, commitment, or Order binding upon the Buyer or to which the Buyer is a party which has or would reasonably be expected to have the effect of prohibiting or impairing any business practice of the Buyer or any acquisition of property by the Buyer or the conduct of business by the Buyer after the Closing, other than such effects, individually or in the aggregate, which are not, and would not reasonably be expected to be, material to the Buyer.

(b)          Except for this Agreement and the transactions contemplated by this Agreement, the Buyer has no interests, rights, obligations or Liabilities with respect to, and the Buyer is not party to, bound by or has its assets or property subject to, in each case whether directly or indirectly, any Contract or transaction which is, or could reasonably be interpreted as constituting, a Business Combination.

(c)          The Buyer has no material Liabilities that are required to be disclosed on a balance sheet in accordance with GAAP, other than (i) Liabilities set forth in or reserved against in the balance sheet of the Buyer as of December 31, 2019 (the “Buyer Balance Sheet”); (ii) Liabilities which have arisen after the date of the Buyer Balance Sheet in the Ordinary Course of Business (none of which results from, arises out of, or was caused by any breach of warranty, breach of Contract or infringement or violation of Law); (iii) Liabilities arising under this Agreement, the Ancillary Agreements and/or the performance by the Buyer of its obligations hereunder or thereunder; or (iv) for fees, costs and expenses for advisors and Affiliates of the Buyer or the Sponsor, including with respect to legal, accounting or other advisors incurred by the Buyer in connection with the transactions contemplated by this Agreement.

Section 5.12          Investment Intent.

(a)          The Buyer understands and acknowledges that the acquisition of the Acquired Company Units and Acquired Restricted Company Units involves substantial risk. The Buyer can bear the economic risk of its investment (which the Buyer acknowledges may be for an indefinite period) and has such knowledge and experience in financial or business matters that the Buyer is capable of evaluating the merits and risks of its investment in the Acquired Company Units and Acquired Restricted Company Units.

(b)          The Buyer is acquiring the Acquired Company Units and Acquired Restricted Company Units for its own account, for investment purposes only and not with a view toward, or for sale in connection with, any distribution thereof, or with any present intention of distributing or selling any Acquired Company Units or Acquired Restricted Company Units, in each case, in violation of the federal securities Laws, any applicable foreign or state securities Laws or any other applicable Law.

(c)          The Buyer qualifies as an “accredited investor,” as such term is defined in Rule 501(a) promulgated pursuant to the Securities Act.

(d)          The Buyer understands and acknowledges that the Acquired Company Units and Acquired Restricted Company Units have not been registered under the Securities Act, any United States state securities Laws or any other applicable foreign Law. The Buyer acknowledges that such securities may not be transferred, sold, offered for sale, pledged, hypothecated or otherwise disposed of without registration under the Securities Act and any other provision of applicable United States federal, United States state, or other Law or pursuant to an applicable exemption therefrom. The Buyer acknowledges that there is no public market for the Acquired Company Units and Acquired Restricted Company Units and that there can be no assurance that a public market will develop.

Section 5.13        Tax Matters.

(a)          The Buyer has timely filed all income and other material Tax Returns required to be filed by it pursuant to applicable Laws (taking into account any validly obtained extension of time within which to file). All such Tax Returns are correct and complete in all material respects and have been prepared in material compliance with all applicable Laws. The Buyer has timely paid all material amounts of Taxes due and payable by it for which the applicable statute of limitations remains open (whether or not shown as due and payable on any Tax Return). The Buyer has timely and properly withheld and paid to the applicable Taxing Authority all material amounts of Taxes required to have been withheld and paid by it in connection with any amounts paid or owing to any employee, individual independent contractor, creditor, equityholder or other third party and all material sales, use, ad valorem and value added Taxes and has otherwise complied in all material respects with all applicable Laws relating to such withholding and payment of Taxes.

(b)          No written claim has been made by a Taxing Authority in a jurisdiction where the Buyer does not file a particular type of Tax Return, or pay a particular type of Tax, that the Buyer is or may be subject to taxation of that type by, or required to file that type of Tax Return in, that jurisdiction that has not been settled or resolved. The income Tax Returns of the Buyer made available to the Sellers, if any, reflect all of the jurisdictions in which the Buyer is required to remit material income Tax.

(c)          There is no Tax audit or examination or any Proceeding now being conducted, pending or threatened in writing (or, to the Knowledge of the Buyer, otherwise threatened) with respect to any Taxes or Tax Returns of or with respect to the Buyer. All material deficiencies for Taxes asserted or assessed in writing against the Buyer have been fully and timely (taking into account applicable extensions) paid, settled or withdrawn, and, to the Knowledge of the Buyer, no such deficiency has been threatened or proposed against the Buyer.

(d)          The Buyer has not agreed to (nor has directed any Person to agree on its behalf) any extension or waiver of the statute of limitations applicable to any Tax or Tax Return, or any extension of time with respect to a period of Tax collection, assessment or deficiency, which period (after giving effect to such extension or waiver) has not yet expired, and no request for any such waiver or extension is currently pending.

(e)          There is no Lien for Taxes on any of the assets of the Buyer, other than Liens for Taxes, assessments or governmental charges or levies imposed with respect to property which are not yet due and payable.

(f)          The Buyer does not have any liability for Taxes of any other Person as a result of Treasury Regulations Section 1.1502-6 (or any similar provision of state, local, or non-U.S. Laws), successor liability, transferee liability, joint or several liability, by contract, by operation of Law, or otherwise (other than pursuant to this Agreement or any of the Ancillary Agreements, if any).

(g)          The unpaid Taxes of the Buyer (i) did not, as of December 31, 2019, materially exceed the reserves for Tax liabilities (excluding any reserve for deferred Taxes established to reflect timing differences between book and Tax income) included in the Buyer Balance Sheet and (ii) do not materially exceed such reserves as adjusted for the passage of time through the Closing Date in accordance with the past practices of the Buyer in filing its Tax Returns.

(h)          The Buyer does not have, and since its incorporation has never had, any material Liability for any United States federal, state or local Taxes.

(i)           The Domestication will qualify as a reorganization within the meaning of Section 368(a)(1)(F) of the Code (and any analogous provisions of applicable U.S. state and local Tax Law).

Section 5.14        Compliance with Laws. Buyer is, and has been since April 30, 2018, in compliance in all material respects with all Laws applicable to the conduct of the business of the Buyer, and no uncured written notices have been received by Buyer from any Governmental Entity or any other Person alleging a material violation of any such Laws.

Section 5.15        Inspections; Company and Sellers’ Representations. Buyer is an informed and sophisticated purchaser, and has engaged advisors, experienced in the evaluation and investment in businesses such as the Utz Companies. Buyer has undertaken such investigation and has been provided with and has evaluated such documents and information as it has deemed necessary to enable it to make an informed and intelligent decision with respect to the execution, delivery and performance of this Agreement. Buyer agrees to engage in the transactions contemplated by this Agreement based upon its own inspection and examination of the Utz Companies and on the accuracy of the representations and warranties set forth in Article III, Article IV and any certificate delivered by Sellers pursuant to this Agreement and hereby disclaims reliance upon any express or implied representations or warranties of any nature made by Sellers, the Company or their respective Affiliates or representatives, except for those set forth in Article III, Article IV and in any certificate delivered by Sellers pursuant to this Agreement. Buyer specifically acknowledges and agrees to Sellers’ disclaimer of any representations or warranties other than those set forth in Article III, Article IV and in any certificate delivered by Sellers pursuant to this Agreement, whether made by either Seller, the Company or any of their respective Affiliates or representatives, and of all Liability and responsibility for any representation, warranty, projection, forecast, statement, or information made, communicated, or furnished (orally or in writing) to Buyer, the Sponsor, their Affiliates or representatives (including any opinion, information, projection, or advice that may have been or may be provided to Buyer, the Sponsor, their Affiliates or representatives by either Seller, any Utz Company or any of their respective Affiliates or representatives), other than those set forth in Article III, Article IV and in any certificate delivered by Sellers pursuant to this Agreement. Buyer specifically acknowledges and agrees that, without limiting the generality of this Section 5.15, no Seller or Utz Company nor any of their respective Affiliates or representatives has made any representation or warranty with respect to any projections or other future forecasts. Buyer specifically acknowledges and agrees that except for the representations and warranties set forth in Article III, Article IV and in any certificate delivered by Sellers pursuant to this Agreement, neither the Company nor any Seller makes, nor has the Company or any Seller made, any other express or implied representation or warranty with respect to Sellers, the Utz Companies, their assets or Liabilities, the businesses of Sellers or the Utz Companies or the transactions contemplated by this Agreement or the Ancillary Agreements.

Article VI
INTERIM OPERATING COVENANTS

Section 6.1          Interim Operating Covenants.

(a)          From the Effective Date until the earlier of: (1) the date this Agreement is terminated in accordance with Article XI and (2) the Closing Date (such period, the “Pre-Closing Period”), unless the Buyer shall otherwise give prior consent (which consent shall not be unreasonably withheld, conditioned or delayed) in writing (including via electronic mail as provided in the Company and Sellers’ Disclosure Letter) and except as contemplated by this Agreement or the Ancillary Agreements or as set forth on Section 6.1(a) of the Company and Sellers’ Disclosure Letter, the Company shall, and Sellers shall cause the Utz Companies to, conduct and operate their business in all material respects in the Ordinary Course of Business and use its commercially reasonable efforts to preserve their existing relationships with material customers, suppliers and distributors, and the Company shall not, and Sellers shall cause the Utz Companies not to:

(i)          amend or otherwise modify any of the Governing Documents of any Utz Company;

(ii)         make any material changes to its accounting policies, methods or practices, other than as required by GAAP or applicable Law;

(iii)        sell, issue, redeem, assign, transfer, pledge (other than in connection with existing credit facilities), convey or otherwise dispose of (w) any Equity Interests of any Utz Company or (x) any options, warrants, rights of conversion or other rights or agreements, arrangements or commitments obligating any Utz Company to issue, deliver or sell any Equity Interests of any Utz Company;

(iv)        declare, make or pay any dividend, other distribution or return of capital (whether in cash or in kind) to any equityholder of the Company, other than (x) to another Utz Company, and (y) Tax Distributions;

(v)         adjust, split, combine or reclassify any of its Equity Interests;

(vi)        (x) incur, assume, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any Indebtedness (other than (A) additional Indebtedness under existing credit facilities, (B) with respect to IO Contracts, (C) capital leases not to exceed $7,500,000 in the aggregate, and (D) other Indebtedness not to exceed $5,000,000 in the aggregate), (y) make any advances or capital contributions to, or investments in, any Person, other than IO Contracts, an Utz Company or in the Ordinary Course of Business, or (z) amend or modify in any material respect any Indebtedness (other than IO Contracts);

(vii)       commit to or authorize any capital expenditure (or series of commitments or capital expenditures), other than capital expenditures (x) contemplated by the capital expenditure schedule set forth on Section 6.1(a)(vii) of the Company and Sellers’ Disclosure Letter (the “CapEx Schedule”), or (y) in an amount not to exceed $3,000,000 in the aggregate in excess of the amount set forth on the CapEx Schedule;

(viii)      enter into any material amendment or termination (other than an expiration in accordance with the terms thereof) of any material term of any Material Contract or Material Lease or enter into any Contract that if entered into prior to the Effective Date would be a Material Contract or Material Lease, in each case other than in the Ordinary Course of Business;

(ix)        other than inventory and other assets acquired in the Ordinary Course of Business, acquire the business, properties or assets, including Equity Interests of another Person (except, in each case, for acquisitions whose consideration in an aggregate amount (for all such acquisitions) is not greater than $10,000,000, the consideration for which is payable only in cash, so long as, based upon the advice of the Company’s accountants, such acquisition, individually or in the aggregate, would not require any additional disclosure pursuant to the rules and regulations adopted by PCAOB, whether through merger, consolidation, share exchange, business combination or otherwise; provided that in the event of any such acquisition for consideration not greater than $10,000,000 (A) Sellers and the Company shall not, and shall cause the other Utz Companies not to, engage in discussions or negotiations with potential debt or equity financing sources without notice to Buyer and (B) the Buyer shall be notified prior to entering into, consummation or agreeing to consummate any such acquisition and provided with copies of any related material documentation subject to the Buyer and the Sponsor first executing a joinder to any confidentiality agreement entered into by any Utz Company in connection with such acquisition;

(x)         propose, adopt or effect any plan of complete or partial liquidation, dissolution, recapitalization or reorganization, or voluntarily subject to any material Lien, any of the material rights or assets owned by, or leased or licensed to, any Utz Company, except for (x) Permitted Liens, (y) Liens under existing credit facilities or other Indebtedness permitted pursuant to Section 6.1(a)(vi), and (z) internal liquidations, dissolutions, recapitalizations or reorganizations to the extent not adversely impacting the transactions contemplated by this Agreement;

(xi)        compromise, commence or settle any pending or threatened Proceeding (w) involving payments (exclusive of attorney’s fees) by an Utz Company not covered by insurance in excess of $1,000,000 in any single instance or in excess of $2,000,000 in the aggregate, (x) granting material injunctive or other equitable remedy against an Utz Company, (y) which imposes any material restrictions on the operations of businesses of the Utz Companies or (z) by the equityholders of the Company or any other Person which relates to the transactions contemplated by this Agreement;

(xii)       make, increase, accelerate (with respect to payment or vesting) or grant any compensation or benefits (including severance) to any employee of an Utz Company, other than base salary increases made in the Ordinary Course of Business (without taking into account clause (b) of the definition thereof), for new hires or as required pursuant to a Company Employee Benefit Plan in effect on the Effective Date, other than, in each case, one-time cash bonuses or other cash payments which do not exceed $1,750,000 in the aggregate for all employees, provided, that, no more than $750,000 of such amount may be attributable to change-in-control or other transaction bonuses related to the transactions contemplated by this Agreement;

(xiii)      establish or adopt, or materially amend (other than as required by applicable Law or as part of an annual renewal for health and/or welfare benefits), or terminate any Company Employee Benefit Plan;

(xiv)      grant, accelerate (with respect to payment or vesting) or announce the grant or award of any equity or equity-based incentive awards;

(xv)       hire or terminate (other than for cause) any individual with annual base compensation in excess of $370,000;

(xvi)      sell, assign, transfer, convey, exclusively license or otherwise dispose of any rights or assets owned by, or leased or licensed to, any Utz Company, other than (x) inventory or products in the Ordinary Course of Business, and (y) assets with an aggregate fair market value less than $5,000,000; or

(xvii)     agree or commit to do any of the foregoing.

(b)          During the Pre-Closing Period, unless the Buyer shall otherwise give prior consent (which consent shall not be unreasonably withheld, conditioned or delayed) in writing (including via electronic mail as provided in the Company and Sellers’ Disclosure Letter) and except as contemplated by this Agreement or the Ancillary Agreements or as set forth on Section 6.1(b) of the Company and Sellers’ Disclosure Letter, the Company shall not, and Sellers shall cause the Utz Companies not to:

(i)          enter into, renew or modify any Affiliated Transaction;

(ii)         incur or enter into any Prohibited Affiliate Transaction; or

(iii)        except to the extent required by applicable Law, (1) make, change or revoke any material election relating to Taxes outside the Ordinary Course of Business consistent with past practice (subject to changes in applicable Law), (2) enter into any agreement, settlement or compromise with any Taxing Authority relating to a material amount of Taxes, (3) consent to any extension or waiver of the statutory period of limitations applicable to any material Tax matter not disclosed in Section 3.8 of the Company and Sellers’ Disclosure Letter, (4) abandon or fail to diligently conduct any material Tax Proceeding, (5) file any amended material Tax Return, (6) fail to timely file (taking into account valid extensions) any material Tax Return required to be filed, (7) file any material Tax Return in a manner materially inconsistent with the past practices of the Utz Companies (subject to changes in applicable Law), (8) fail to pay any material amount of Tax as it becomes due, (9) enter into any Tax Sharing Agreement (other than an Ordinary Course Tax Sharing Agreement), (10) adopt or change a material method of accounting with respect to a material amount of Taxes or change a material accounting period with respect to a material amount of Taxes outside the Ordinary Course of Business consistent with past practice not disclosed in Section 3.8 of the Company and Sellers’ Disclosure Schedule, (11) surrender any right to claim any refund of a material amount of Taxes, or (12) take any action that would reasonably be expected to prevent, impair or impede the Intended Tax Treatment or the representations and warranties in Sections 3.8(f) and 3.8(n) from being true, correct and complete.

(c)          Nothing contained in this Agreement shall be deemed to give the Buyer, directly or indirectly, the right to control or direct the Company or any operations of any Utz Company prior to the Closing. Prior to the Closing, the Utz Companies shall exercise, consistent with the terms and conditions of this Agreement, control over their respective businesses and operations.

Section 6.2          Interim Operating Covenants (Buyer).

(a)          During the Pre-Closing Period, unless Sellers shall otherwise give prior consent (which consent shall not be unreasonably withheld, conditioned or delayed) in writing (including via electronic mail as provided in the Buyer Disclosure Letter) and except as contemplated by this Agreement or the Ancillary Agreements or as set forth on Section 6.2(a) of the Buyer Disclosure Letter, the Buyer shall not:

(i)          amend or otherwise modify the Trust Agreement, the Buyer Governing Documents or the Forward Purchase Agreements in any material respect;

(ii)         withdraw any of the Trust Amount, other than as permitted by the Buyer Governing Documents or the Trust Agreement;

(iii)        make any material changes to its accounting policies, methods or practices, other than as required by GAAP or applicable Law;

(iv)        except to the extent required by applicable Law, (1) make, change or revoke any material election relating to Taxes outside the Ordinary Course of Business consistent with past practice (subject to changes in applicable Law), (2) enter into any agreement, settlement or compromise with any Taxing Authority relating to a material amount of Taxes, (3) consent to any extension or waiver of the statutory period of limitations applicable to any material Tax matter, (4) abandon or fail to diligently conduct any material Tax Proceeding, (5) file any amended material Tax Return, (6) fail to timely file (taking into account valid extensions) any material Tax Return required to be filed, (7) file any material Tax Return in a manner materially inconsistent with the past practices of the Buyer (subject to changes in applicable Law), (8) fail to pay any material amount of Tax as it becomes due, (9) enter into any tax sharing agreement (other than an Ordinary Course Tax Sharing Agreement), (10) adopt or change a material method of accounting with respect to a material amount of Taxes or change a material accounting period with respect to a material amount of Taxes outside the Ordinary Course of Business consistent with past practice, (11) surrender any right to claim any refund of a material amount of Taxes, or (12) take any action that would reasonably be expected to prevent, impair or impede the Intended Tax Treatment or the representations and warranties in Section 5.13(j) from being true, correct and complete;

(v)         other than in connection with the Required Vote, a Buyer Share Redemption, the Forward Purchase Agreements or a Permitted Equity Financing, sell, issue, redeem, assign, transfer, convey or otherwise dispose of (w) any of its Equity Interests, or (x) any options, warrants, rights of conversion or other rights or agreements, arrangements or commitments obligating Buyer or Sponsor to issue, deliver or sell any Equity Interests of Buyer;

(vi)        other than in connection with a Buyer Share Redemption, declare, make or pay any dividend, other distribution or return of capital (whether in cash or in kind) to the equityholders of the Buyer;

(vii)       adjust, split, combine or reclassify (other than a reclassification pursuant to the Domestication, pursuant to the Sponsor Side Letter, or a conversion of Buyer Class B Ordinary Shares into Buyer Class A Ordinary Shares pursuant to the Buyer Governing Documents) any of its Equity Interests;

(viii)      reduce the exercise price of any Buyer Warrant;

(ix)           incur, assume, guarantee or otherwise become liable for (whether directly, contingently or otherwise) any Indebtedness, other than Indebtedness incurred in order to finance working capital needs (and the proceeds of which are used to pay amounts which would be treated as a Transaction Expense if unpaid as of the Closing Date, including any ordinary course operating expenses) in an amount not to exceed $2,000,000, so long as each lender of such working capital loans waives its right, if any, to convert such Indebtedness into, or use such Indebtedness to purchase, warrants or other Equity Securities of the Buyer;

(x)            make any working capital loan that permits or allows all or any portion of such loan to be converted into warrants or other Equity Securities of the Buyer;

(xi)           enter into any transaction or Contract with the Sponsor or any of its Affiliates for the payment of finder’s fees, consulting fees, monies in respect of any payment of a loan or other compensation paid by Buyer to the Sponsor, Buyer’s officers or directors, or any Affiliate of the Sponsor or Buyer’s officers, for services rendered prior to, or for any services rendered in connection with, the consummation of the transactions contemplated by this Agreement;

(xii)          compromise, commence or settle any pending or threatened Proceeding (w) involving payments (exclusive of attorney’s fees) by Buyer not covered by insurance in excess of $1,000,000 or in excess of $2,000,000 in the aggregate, (x) granting material injunctive or other equitable remedy against the Buyer (y) which imposes any material restrictions on the operations of businesses of the Buyer or (z) by the public stockholders or any other Person which relates to the transactions contemplated by this Agreement; or

(xiii)         agree or commit to do any of the foregoing.

(b)           Nothing contained in this Agreement shall be deemed to give the Sellers or the Company, directly or indirectly, the right to control or direct the Buyer prior to the Closing. Prior to the Closing, the Buyer shall exercise, consistent with the terms and conditions of this Agreement, control over its business.

Article VII
PRE-CLOSING AGREEMENTS

Section 7.1         Commercially Reasonable Efforts; Further Assurances. Subject to the terms and conditions set forth in this Agreement, and to applicable Laws, during the Pre-Closing Period, the Parties shall cooperate and use their respective commercially reasonable efforts to take, or cause to be taken, all appropriate action (including executing and delivering any documents, certificates, instruments and other papers that are necessary for the consummation of the transactions contemplated by this Agreement), and do, or cause to be done, and assist and cooperate with the other Parties in doing, all things necessary to consummate and make effective, in the most expeditious manner practicable, the transactions contemplated by this Agreement. Each Seller shall use its commercially reasonable efforts, and the Buyer shall cooperate in all reasonable respects with Sellers, to solicit and obtain the consents of the Persons who are parties to the Contracts listed on Section 7.1 of the Company and Sellers’ Disclosure Letter prior to the Closing; provided, however, that no Party nor any of their Affiliates shall be required to pay or commit to pay any amount to (or incur any obligation in favor of) any Person from whom any such consent may be required (unless such payment is required in accordance with the terms of the relevant Contract requiring such consent). Any payment pursuant to the foregoing proviso shall be a Transaction Expense.

Section 7.2        Trust & Closing Funding; Forward Purchase Securities. Subject to the satisfaction or waiver of the conditions set forth in Section 2.5 (other than those conditions that by their nature are to be satisfied at Closing, but subject to the satisfaction or waiver of those conditions) and provision of notice thereof to the Trustee (which notice the Buyer shall provide to the Trustee in accordance with the terms of the Trust Agreement), in accordance with the Trust Agreement and the Buyer Governing Documents, at the Closing, the Buyer shall (a) (i) cause the documents, opinions and notices required to be delivered to the Trustee pursuant to the Trust Agreement to be so delivered; and (ii) cause the Trustee to pay as and when due (x) all amounts payable to Buyer Shareholders who shall have validly elected to redeem their Buyer Class A Ordinary Shares pursuant to the Buyer Memorandum and Articles and use its best efforts to cause the Trustee to pay as and when due the Deferred Discount (as defined in the Trust Agreement) pursuant to the terms of the Trust Agreement, except to the extent that such Deferred Discount is waived, and (y) pay all amounts payable pursuant to Section 2.2, and (b) (i) cause the documents and notices required to be delivered to the Sponsor and the Buyer’s independent directors pursuant to the Forward Purchase Agreements in order to cause the purchase of the Forward Purchase Securities in connection with the Closing to be so delivered, and (ii) use its best efforts to cause the Sponsor and the Buyer’s independent directors to pay into escrow as and when due pursuant to the Forward Purchase Agreements the aggregate purchase price for the Forward Purchase Securities.

Section 7.3        Listing. Subject to Section 7.19, during the Pre-Closing Period prior to the Domestication, the Buyer shall remain listed as a public company on, and for the Buyer Class A Ordinary Shares to be listed on, the Stock Exchange. The Buyer shall cause the Buyer Class A Common Stock to be listed on the Stock Exchange.

Section 7.4        EIP. Prior to the Closing Date, the Buyer shall approve and, subject to the approval of the Buyer Shareholders, adopt, an omnibus incentive equity plan, in the form attached hereto as Exhibit M to be effective from and after the Closing (the “EIP”). Nothing contained in this Section 7.4 (whether express or implied) shall confer any rights, remedies or benefits whatsoever (including any third-party beneficiary rights) on any Person other than the Parties to this Agreement.

Section 7.5        Confidential Information. During the Pre-Closing Period, each Party shall be bound by and comply with the provisions set forth in the Confidentiality Agreement as if such provisions were set forth herein, and such provisions are hereby incorporated herein by reference. Each Party acknowledges and agrees that each is aware, and each of their respective Affiliates and representatives is aware (or upon receipt of any material nonpublic information of the other Party, will be advised), of the restrictions imposed by the United States federal securities Laws and other applicable foreign and domestic Laws on Persons possessing material nonpublic information about a public company. Each Party hereby agrees, that during the Pre-Closing Period, except in connection with or support of the transactions contemplated by this Agreement (including any communications with BSOF or potential Equity Financing Sources) or at the request of the Buyer or any of its Affiliates or its or their representatives, while any of them are in possession of such material nonpublic information, none of such Persons shall, directly or indirectly (through its Affiliates or otherwise), acquire, offer or propose to acquire, agree to acquire, sell or transfer or offer or propose to sell or transfer any securities of the Buyer, communicate such information to any other Person or cause or encourage any Person to do any of the foregoing.

Section 7.6        Access to Information.

(a)          During the Pre-Closing Period, upon reasonable prior written notice, Sellers shall, and shall cause the Utz Companies to, afford the representatives of the Buyer reasonable access, during normal business hours, to the properties, books and records of the Utz Companies and furnish to the representatives of the Buyer such additional financial and operating data and other information regarding the business of the Utz Companies as the Buyer or its representatives may from time to time reasonably request for purposes of consummating the transactions contemplated by this Agreement, but only to the extent that Sellers and the Utz Companies may do so without violating any obligations to any third party and to the extent that Sellers and the Utz Companies have the authority to grant such access without breaching any restrictions binding on them (and provided that Buyer shall abide by the terms of the Confidentiality Agreement). Buyer agrees to be responsible for the reasonable and documented out-of-pocket expenses incurred by the Utz Companies as a result of providing such access (which shall be treated as Transaction Expenses hereunder).

(b)          Buyer shall coordinate its access rights with the Sellers to reasonably minimize any inconvenience to or interruption of the conduct of the business of the Utz Companies.

(c)          Notwithstanding anything to the contrary in this Section 7.6, Sellers shall not be required to disclose any information to Buyer during the Pre-Closing Period if such disclosure would (i) jeopardize any attorney-client or other applicable legal privilege, or (ii) contravene any applicable Contracts or Laws. Prior to the Closing, without the prior written consent of Sellers, which may be withheld for any reason, Buyer shall not contact any suppliers to, or customers of, any Utz Company in relation to the transactions contemplated by this Agreement and Buyer shall have no right to perform invasive or subsurface investigations of any of the Leased Real Property.

Section 7.7        Notification of Certain Matters.

(a)          During the Pre-Closing Period, each of Sellers and the Company shall disclose to the Buyer in writing any development, fact or circumstance of which Sellers or the Company has Knowledge, arising before or after the Effective Date, that would cause or would reasonably be expected to result in the failure of the conditions set forth in Section 2.5(a) or Section 2.5(b) to be satisfied.

(b)          During the Pre-Closing Period, Buyer shall disclose to Sellers in writing any development, fact or circumstance of which Buyer has Knowledge, arising before or after the Effective Date, that would cause or would reasonably be expected to result in the failure of the conditions set forth in Section 2.5(a) or Section 2.5(c) to be satisfied.

Section 7.8        Antitrust Laws.

(a)          The Parties will (i) cause the Notification and Report Forms required pursuant to the HSR Act with respect to the transactions contemplated by this Agreement to be filed no later than thirty (30) days prior to the Closing, (ii) request early termination of the waiting period relating to such HSR Act filings, if early termination is being granted at the time of such filing, (iii) supply as promptly as practicable any additional information and documentary material that may be requested by a Governmental Entity pursuant to the HSR Act and (iv) otherwise use its commercially reasonable efforts to cause the expiration or termination of the applicable waiting periods under the HSR Act with respect to the transactions contemplated by this Agreement as soon as practicable. The Parties shall use commercially reasonable efforts to promptly obtain, and to cooperate with each other to promptly obtain, all authorizations, approvals, clearances, consents, actions or non-actions of any Governmental Entity in connection with the above filings, applications or notifications. Each Party shall promptly inform the other Parties of any material communication between itself (including its representatives) and any Governmental Entity regarding any of the transactions contemplated by this Agreement. If a Party or any of its Affiliates receives any formal or informal request for supplemental information or documentary material from any Governmental Entity with respect to the transactions contemplated by this Agreement, then the Party, to the extent necessary and advisable, shall provide a reasonable response to such request as promptly as reasonably practicable. All fees or other payments required by applicable Law to any Governmental Entity in order to obtain any such approvals, consents, or Orders shall be Transaction Expenses.

(b)          The Parties shall keep each other apprised of the status of matters relating to the completion of the transactions contemplated by this Agreement and, to the extent permissible, promptly furnish the other with copies of notices or other communications between any Party (including their respective Affiliates and representatives), as the case may be, and any third party and/or Governmental Entity with respect to such transactions. Each Party shall give the other Party and its counsel a reasonable opportunity to review in advance, to the extent permissible, and consider in good faith the views and input of the other Party in connection with, any proposed material written communication to any Governmental Entity relating to the transactions contemplated by this Agreement. Each Party agrees not to participate in any substantive meeting, conference or discussion, either in person or by telephone, with any Governmental Entity in connection with the transactions contemplated by this Agreement unless it consults with the other Party in advance and, to the extent not prohibited by such Governmental Entity, gives the other Party the opportunity to attend and participate.

(c)          Each Party shall use its commercially reasonable efforts to resolve objections, if any, as may be asserted by any Governmental Entity with respect to the transactions contemplated by this Agreement under the HSR Act, the Sherman Act, the Clayton Act, the Federal Trade Commission Act, and any other United States federal or state or foreign statutes, rules, regulations, Orders, decrees, administrative or judicial doctrines or other Laws that are designed to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade or constituting anticompetitive conduct (collectively, the “Antitrust Laws”). Subject to the other terms of this Section 7.8(c), each Party shall use its commercially reasonable efforts to take such action as may be required to cause the expiration of the notice periods under the HSR Act or other Antitrust Laws with respect to such transactions as promptly as possible after the execution of this Agreement.

(d)          The Buyer shall not take any action that would reasonably be expected to materially delay or prevent the consummation of the transactions contemplated by this Agreement as a result of the application of any Antitrust Law.

(e)          Notwithstanding anything in this Agreement to the contrary, but subject to compliance with Section 7.5, nothing in this Section 7.8 shall require Buyer, Sponsor or any of their respective Affiliates to take any action with respect to any of Buyer’s or Sponsor’s Affiliates (other than Buyer and Buyer’s Subsidiaries and the Utz Companies), any of their respective affiliated investment funds or any portfolio company (as such term is commonly understood in the private equity industry) or investment of Buyer, Sponsor or their respective Affiliates (other than the Utz Companies), or any interests therein, including selling, divesting or otherwise disposing of, licensing, holding separate, or otherwise restricting or limiting its freedom to operate with respect to, any business, products, rights, services, licenses, investments, or assets, of Buyer, Sponsor or their respective Affiliates (other than the Utz Companies), any of their respective affiliated investment funds or any portfolio company (as such term is commonly understood in the private equity industry) or investment of Buyer, Sponsor or their respective Affiliates (other than the Utz Companies), or any interests therein.

Section 7.9        R&W Insurance Policy.

(a)          The Buyer has entered into a binding agreement (the “Binder Agreement”), which conditionally bounds a buyer-side representation and warranty insurance policy (collectively, the “R&W Insurance Policy”), attached hereto as Exhibit L. Each Party shall use its commercially reasonable efforts to satisfy the conditions set forth in the Binder Agreement to ensure that the R&W Insurance Policy is in full force and effect at the Closing. The Buyer shall instruct the insurer under the R&W Insurance Policy that any proceeds owing or payable by the insurer under the R&W Insurance Policy shall be paid, or to the extent such proceeds are received by the Buyer, the Buyer shall pay, (i) to an Utz Company to the extent constituting a Whole Company Loss and (ii) to the Buyer to the extent constituting a Buyer Loss. If the Sellers collectively own more than 52% of the Common Units immediately following the Closing, (A) the R&W Insurance Policy will convert to a pro rata policy, (B) the Buyer shall cause the limit of liability in the R&W Insurance Policy to be reduced by a percentage equal to the percentage of Common Units collectively owned by Sellers immediately following the Closing, with the premium and retention in the R&W Insurance Policy to be adjusted accordingly, (C) the indemnification provisions in Article X will continue in full force and effect in accordance with their terms, and (D) any proceeds owing or payable by the insurer under the R&W Insurance Policy shall be paid (i) to the Buyer, to the extent constituting a Buyer Loss, (ii) to the Buyer, to the extent constituting a Whole Company Loss for which the Sellers do not have an obligation to indemnify under Section 10.2(a)(ii) or Section 10.2(a)(iii), (iii) to an Utz Company, to the extent constituting a Whole Company Loss for which the Sellers have an obligation to indemnify under Section 10.2(a)(ii) or Section 10.2(a)(iii) and for which the Sellers have paid the amount of such Loss required to be paid under Section 10.2(a)(ii) or Section 10.2(a)(iii) to an Utz Company (or will simultaneously pay to the Utz Companies with such insurance proceeds) the full amount of such Loss less the portion paid or payable by the insurer (such difference, the “Net Loss”) or (iv) to the extent constituting a Whole Company Loss for which the Sellers have an obligation to indemnify under Section 10.2(a)(ii) or Section 10.2(a)(iii) and for which the Sellers dispute the payment of the full amount of such Net Loss (x) to the Buyer, that amount of the insurance proceeds multiplied by the proportion of the Net Loss that the Sellers have not paid (or will not simultaneously pay to the Utz Companies with such insurance proceeds), and further multiplied by the Buyer’s percentage ownership interest in the Company as of the date of payment of such insurance proceeds and (y) to any Utz Company, the balance of such insurance proceeds; provided, that, in the case of this clause (iv), to the extent the Sellers pay, at any time or from time to time thereafter, additional amounts of the Net Loss, then the Buyer shall pay to an Utz Company, within three (3) Business Days of the Sellers’ payment, the additional insurance proceeds in respect of such Loss to which the Utz Companies would have been entitled had such additional amount of Net Loss been initially paid by Sellers in calculating the amount owed to the Buyer pursuant to clause (iv), or if the Sellers pay the entire Net Loss, then Buyer shall pay to an Utz Company the balance of the insurance proceeds received from the insurer. Buyer agrees that it cannot use any proceeds received from the insurer under the R&W Insurance Policy to purchase Equity Securities of the Company.

(b)          The cost of obtaining the R&W Insurance Policy, including all premiums and any related brokers fees, shall be a Transaction Expense.

Section 7.10      Communications; Press Release; SEC Filings.

(a)          Any press or other public release or public announcement concerning the transactions contemplated by this Agreement shall not be issued without the prior written consent of each of the Buyer and Sellers, which consent shall not be unreasonably withheld, conditioned or delayed; provided, however, that each Party may make any public announcement which is required by applicable Law; and, provided, further, that each Party may make, and the Company may cause Utz Quality Foods, LLC, to make, announcements regarding this Agreement and the transactions contemplated hereby consisting solely of information contained in and otherwise consistent with any such press release or public announcement and the Buyer SEC Documents to their employees, customers, suppliers and other interested parties without the consent of the other Parties.

(b)          As promptly as practicable following the Effective Date, the Buyer shall prepare and file a Current Report on Form 8-K pursuant to the Securities Exchange Act to report the execution of this Agreement (the “Signing Form 8-K”) and the Parties shall issue a mutually agreeable press release announcing the execution of this Agreement (the “Signing Press Release”). Buyer shall provide Sellers with a reasonable opportunity to review and comment on the Signing Form 8-K prior to its filing and shall consider such comments in good faith.

(c)          As promptly as reasonably practicable after the Effective Date, (i) the Buyer and the Company shall prepare and the Buyer shall file with the SEC materials that include the proxy statements/prospectus to be filed with the SEC as part of Form S-4 and sent to Buyer Shareholders related to the Buyer Shareholder Meeting (such proxy statement/prospectus, together with any amendment or supplements thereto, the “Proxy Statement”) and (ii) the Buyer shall prepare (with the Company’s reasonable cooperation) and file with the SEC the Form S-4, in which the Proxy Statement will be included as a prospectus, in connection with the registration under the Securities Act of the Buyer Class A Common Stock to be issued in connection with the Domestication and the other transactions contemplated by this Agreement. The Buyer shall file the definitive Form S-4 with the SEC and cause the Proxy Statement to be mailed to the Buyer Shareholders of record, as of the record date to be established by the Buyer Board that is in existence at such time, at such time as reasonably agreed by Buyer and the Company promptly following (i) in the event the preliminary Form S-4 is not reviewed by the SEC, the expiration of the waiting period in Rule 14a-6(a) under the Securities Exchange Act or (ii) in the event the preliminary Form S-4 is reviewed by the SEC, receipt of oral or written notification of the completion of the review by the SEC.

(d)          Prior to filing with the SEC, the Buyer will make available to Sellers drafts of the Form S-4 and any other documents to be filed with the SEC, both preliminary and final, and drafts of any amendment or supplement to the Form S-4 or such other document and will provide Sellers with a reasonable opportunity to comment on such drafts and shall consider such comments in good faith. The Buyer will advise Sellers promptly after it receives notice thereof, of (i) the time when the Form S-4 has been filed, (ii) in the event the preliminary Form S-4 is not reviewed by the SEC, the expiration of the waiting period in Rule 14a-6(a) under the Securities Exchange Act, (iii) in the event the preliminary Form S-4 is reviewed by the SEC, receipt of oral or written notification of the completion of the review by the SEC, (iv) the filing of any supplement or amendment to the Form S-4, (v) any request by the SEC for amendment of the Form S-4, (vi) any comments, written or oral, from the SEC relating to the Form S-4 and responses thereto and (vii) requests by the SEC for additional information in connection with the Form S-4. The Parties shall cooperate to promptly respond to any comments of the SEC on the Form S-4, and the Parties shall use their respective commercially reasonable efforts to have the Form S-4 cleared by the SEC under the Securities Act and Securities Exchange Act as soon after filing as practicable.

(e)          If at any time prior to the Buyer Shareholders Meeting any Party discovers or becomes aware of any information that should be set forth in an amendment or supplement to the Form S-4 so that the Form S-4 would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, such Party shall inform the other Parties hereto and the Buyer shall promptly transmit to the Buyer Shareholders an amendment or supplement to the Form S-4 containing such information. The Buyer will also inform the Company, promptly after the Buyer receives written notice thereof, of the time of the issuance of any stop order or the suspension of the qualification of the Buyer Class A Common Stock for offering or sale in any jurisdiction, or of the initiation or written threat of any Proceeding for any such purpose.

(f)          The Parties acknowledge that a substantial portion of the Form S-4 and certain other forms, reports and other filings required to be made by the Buyer under the Securities Act and Securities Exchange Act in connection with the transactions contemplated by this Agreement (collectively, “Additional Buyer Filings”) shall include disclosure regarding the Utz Companies and the business of the Utz Companies and the Utz Companies management, operations and financial condition. Accordingly, Sellers and the Company agree to, and agree to cause the Utz Companies to, as promptly as reasonably practicable, provide the Buyer with all information concerning Sellers, the Company and the Utz Companies, and their respective business, management, operations and financial condition, in each case, that is reasonably required to be included in the Form S-4, Additional Buyer Filings or any other Buyer SEC Filing. Sellers and the Company shall make, and shall cause Utz Companies to, make, and shall cause their Affiliates, directors, officers, managers and employees to make, available to the Buyer and its counsel, auditors and other representatives in connection with the drafting of the Form S-4, Additional Buyer Filings and any other Buyer SEC Filing and responding in a timely manner to comments thereto from the SEC all information concerning Sellers and the Utz Companies, their respective businesses, management, operations and financial condition, in each case, that is reasonably required to be included in the Form S-4, such Additional Buyer Filing or other Buyer SEC Filing. If, at any time prior to the Closing, the Parties discover or become aware of any event, fact or circumstance relating to Sellers, the Company or the Utz Companies or their respective businesses, or any of their respective Affiliates, directors, officers, managers or employees or their respective management, operations or financial condition, which should be set forth in an amendment or a supplement to the Form S-4 (or any Additional Buyer Filing or other Buyer SEC Filing) so that such documents would not contain any untrue statement of a material fact or failure to state a material fact necessary to make the statements therein, in light of the circumstances in which they are made, not misleading, such Person shall promptly inform the other Parties, and the Parties shall cooperate reasonably in connection with preparing and disseminating any such required amendment or supplement. The Buyer shall make all necessary filings with respect to the transactions contemplated by this Agreement under the Securities Act, the Securities Exchange Act and applicable blue sky Laws and the rules and regulations thereunder, and the Sellers and the Company shall reasonably cooperate in connection therewith.

(g)          At least five (5) days prior to Closing, the Buyer shall begin preparing a draft Current Report on Form 8-K in connection with and announcing the Closing, together with, or incorporating by reference, such information that is or may be required to be disclosed with respect to the transactions contemplated by this Agreement pursuant to Form 8-K (the “Closing Form 8-K”). Buyer shall provide Sellers with a reasonable opportunity to review and comment on the Closing Form 8-K prior to its filing and shall consider such comments in good faith. Prior to the Closing, the Parties shall prepare a mutually agreeable press release announcing the consummation of the transactions contemplated by this Agreement (“Closing Press Release”). Concurrently with the Closing, the Buyer shall distribute the Closing Press Release, and within four (4) Business Days thereafter, file the Closing Form 8-K with the SEC.

(h)          The Company shall provide to the Buyer as promptly as practicable after the Effective Date (i) audited combined balance sheets of the Company and its Subsidiaries and certain Affiliates of the Company identified in the notes thereto as of December 29, 2019, December 30, 2018 and December 31, 2017, and related audited combined statements of operations, members’ equity and cash flows for the fiscal years ended on such dates, together with all related notes and schedules thereto, accompanied by the reports thereon of the Utz Companies’ independent auditors (which reports shall be unqualified) in each case audited in accordance with the standards of the PCAOB (the “PCAOB Financial Statements”), (ii) unaudited combined financial statements of the Company and its Subsidiaries and certain Affiliates of the Company identified in the notes thereto including combined balance sheets, statements of operations, statements of members’ equity and statements of cash flows as of and for the fiscal quarter ended March 29, 2020 together with all related notes and schedules thereto, prepared in accordance with GAAP applied on a consistent basis throughout the covered periods and Regulation S-X of the SEC and reviewed by the Utz Companies’ independent auditor in accordance with Statement on Auditing Standards No. 100 issued by the American Institute of Certified Public Accountants, (iii) all other audited and unaudited financial statements of the Utz Companies and any company or business units acquired by the Utz Companies, as applicable, required under the applicable rules and regulations and guidance of the SEC to be included in the Form S-4 and/or the Closing Form 8-K (including pro forma financial information), (iv) all selected financial data of the Utz Companies required by Item 301 of Regulation S-K, as necessary for inclusion in the Form S-4 and Closing Form 8-K and (v) management’s discussion and analysis of financial condition and results of operations prepared in accordance with Item 303 of Regulation S-K of the SEC (as if the Utz Companies were subject thereto) with respect to the periods described in clauses (i) and (ii), and (iii) above, as necessary for inclusion in the Form S-4 and Closing Form 8-K (including pro forma financial information).

(i)           Each Party covenants and agrees that the information supplied or to be supplied by such Party or its Affiliates for inclusion in the Form S-4, the Additional Buyer Filings, any other the Buyer SEC Filing, any document submitted to any other Governmental Entity or any announcement or public statement regarding the transactions contemplated by this Agreement (including the Signing Press Release and the Closing Press Release) shall not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances in which they are made, not misleading at (i) the time such information is filed, submitted or made publicly available, (ii) the time the Form S-4 is declared effective by the SEC, (iii) the time the Form S-4 (or any amendment thereof or supplement thereto) is first mailed to the Buyer Shareholders, (iv) the time of the Buyer Shareholder Meeting or (v) the Closing (subject to the qualifications and limitations set forth in the materials provided by such Party or that are included in such filings and/or mailings). Buyer further covenants and agrees that it shall timely file, including for such purposes any extensions permitted under Rule 12b-25 of the Securities Exchange Act or other relief granted by the SEC, with the SEC all Buyer SEC Documents required to be filed by it through the Closing Date.

Section 7.11      Expenses. Except as otherwise provided in this Agreement, each Party shall be solely liable for and pay all of its own costs and expenses (including attorneys’, accountants’ and investment bankers’ fees and other out-of-pocket expenses) incurred by such Party or its Affiliates in connection with the negotiation and execution of this Agreement and the Ancillary Agreements, the performance of such Party’s obligations hereunder and thereunder and the consummation of the transactions contemplated hereby and thereby. To the extent there are any Transaction Expenses, which become due and payable following the Closing, such Transaction Expenses shall be borne by the Company following the Closing.

Section 7.12      Releases.

(a)          Subject to the other provisions in this Section 7.12, effective upon the Closing, each Seller, on behalf of itself and its current and former Subsidiaries, Affiliates and their respective successors and assigns (collectively, the “Seller Releasing Parties”), hereby releases and discharges the Buyer, each Utz Company and their respective Affiliates and each of their respective current and former managers, directors, officers, employees, members, stockholders, partners, benefit plan fiduciaries and administrators and their respective successors and assigns (the “Seller Released Parties”) from and against any and all Liabilities, and causes of actions of such Seller, of any kind or nature whatsoever arising out of such Seller’s ownership of any Utz Company (whether directly or indirectly) as to facts, conditions, transactions, events or circumstances prior to the Closing (the “Seller Released Matters”), and each Seller shall not, and shall cause the other Seller Releasing Parties not to, seek to recover any amounts in connection with such Seller Released Matters from any Seller Released Party; provided, however, that nothing contained in this Section 7.12(a) shall waive, release or discharge any Seller Released Party from any Liability such Person may have to any Seller Releasing Party with respect to indemnification under the Governing Documents of the Utz Companies.

(b)          Subject to the other provisions in this Section 7.12, effective upon the Closing, Buyer, on behalf of itself and the Utz Companies, Buyer’s Affiliates and their respective successors and assigns (collectively, the “Buyer Releasing Parties”), hereby releases and discharges each Seller and its Affiliates and each of their respective current and former managers, directors, officers, employees, members, stockholders, partners, benefit plan fiduciaries and administrators and their respective successors and assigns (the “Buyer Released Parties”) from and against any and all Liabilities, and causes of actions of any Utz Company, of any kind or nature whatsoever arising out of such Seller’s ownership of any Utz Company (whether directly or indirectly), as to facts, conditions, transactions, events or circumstances prior to the Closing (the “Buyer Released Matters”), and Buyer shall not, and shall cause the other Buyer Releasing Parties not to, seek to recover any amounts in connection with such Buyer Released Matters from any Buyer Released Party.

(c)         Each Party acknowledges that it is aware of the California Civil Code Section 1542, which provides:

A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.

Being aware of this section, each Party hereby waives and relinquishes all rights and benefits which it may have under this section as well as any other statutes or common law principles of similar effect.

(d)         It is the intention of each Seller in executing the release contained in Section 7.12(a) and in giving and receiving the consideration called for in this Agreement, that this release shall be effective as a full and final accord and satisfaction and general release of and from all Seller Released Matters. Each Seller hereby jointly and severally represents to the Buyer that such Seller has not voluntarily or involuntarily assigned or transferred or purported to assign or transfer to any Person any Seller Released Matters and that, to the Knowledge of the Sellers, no Person other than Sellers has any interest in any Seller Released Matters by applicable Law or contract by virtue of any action or inaction by Sellers in a manner that would derogate from or otherwise prejudice the foregoing waiver.

(e)         It is the intention of Buyer in executing the release contained in Section 7.12(b) and in giving and receiving the consideration called for in this Agreement, that this release shall be effective as a full and final accord and satisfaction and general release of and from all Buyer Released Matters. Buyer represents to Sellers that Buyer has not voluntarily or involuntarily assigned or transferred or purported to assign or transfer to any Person any Buyer Released Matters and that, to the Knowledge of the Buyer, no Person other than Buyer has any interest in any Buyer Released Matters by applicable Law or contract by virtue of any action or inaction by Buyer in a manner that would derogate from or otherwise prejudice the foregoing waiver.

(f)          Notwithstanding anything to the contrary in this Section 7.12, nothing in this Section 7.12 shall waive, release, discharge, limit, modify, restrict, operate as a waiver with respect to or otherwise affect, any Liabilities or rights any Party may have (i) under this Agreement, any Ancillary Agreement or the transactions contemplated hereby and thereby, (ii) under the Confidentiality Agreement, (iii) arising out of actions or omissions occurring after the Closing or (iv) arising out of, or resulting from, Fraud of the released Person. The invalidity or unenforceability of any part of this Section 7.12 shall not affect the validity or enforceability of the remainder of this Section 7.12, which shall remain in full force and effect.

Section 7.13      Directors and Officers.

(a)          Beginning on the Closing Date and continuing until the sixth (6th) anniversary of the Closing Date, the Buyer (i) shall cause each Utz Company to maintain in effect all rights to indemnification, advancement of expenses, exculpation and other limitations on Liability to the extent provided in the Governing Documents of such Utz Company in effect as of the Effective Date (“D&O Provisions”) in favor of any current or former director, officer, or manager, or, to the extent authorized under the applicable D&O Provisions, any employee, agent or representative of any Utz Company (collectively, with such Person’s heirs, executors or administrators, the “Utz Indemnified Persons”), and (ii) shall not, and shall not permit any Utz Company to, amend, repeal or modify in a manner adverse to the beneficiary thereof any provision in the D&O Provisions  as it relates to any Utz Indemnified Person, in each case relating to a state of facts existing prior to Closing, without the written consent of such affected Utz Indemnified Person (it being agreed that each Utz Indemnified Person shall be a third party beneficiary of this Section 7.13). After the Closing, in the event that any Utz Company or its successors (i) consolidates with or merges into any other Person and is not the continuing or surviving company or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then in each such case, Buyer shall cause proper provision to be made so that the successors of the Utz Company shall succeed to and be bound by the obligations set forth in this Section 7.13.

(b)         Tail Policy.

(i)            For a period of six (6) years from and after the Closing Date, the Buyer shall purchase and maintain in effect policies of directors’ and officers’ liability insurance covering those Persons who are currently covered by such policies of the Utz Companies and the Buyer with respect to claims arising from facts or events that occurred on or before the Closing and with substantially the same coverage and amounts as, and contain terms and conditions no less advantageous than, in the aggregate, the coverage currently provided by such current policy.

(ii)            At or prior to the Closing Date, the Buyer shall purchase and maintain in effect for a period of six (6) years thereafter, “run-off” coverage as provided by any Utz Company’s and the Buyer’s fiduciary and employee benefit policies, in each case, covering those Persons who are covered on the Effective Date by such policies and with terms, conditions, retentions and limits of liability that are no less advantageous than the coverage provided under any Utz Company’s or the Buyer’s existing policies (the policies contemplated by the foregoing clauses (i) and (ii), collectively, the “Tail Policy”); provided that in no event shall the Buyer be required to expend on the premium thereof in excess of three hundred percent (300%) of the aggregate annual premiums currently payable by the Company and the Buyer with respect to such current policies (the “Premium Cap”); provided, further, that if such minimum coverage under any such Tail Policy is or becomes not available at the Premium Cap, then any such Tail Policy shall contain the maximum coverage available at the Premium Cap. No claims made under or in respect of such Tail Policy related to any fiduciary or employee of any Utz Company shall be settled without the prior written consent of Sellers.

Section 7.14      Employee Matters. On or prior, and as a condition, to the Closing, Sellers shall, or shall cause the Utz Companies to, take such actions regarding the Utz Quality Foods, LLC 2018 Long-Term Incentive Plan (as amended, the “LTIP”) as are set forth on Section 7.14 of the Company and Sellers’ Disclosure Letter. Nothing contained in this Section 7.14 (whether express or implied) shall confer any rights, remedies or benefits whatsoever (including any third-party beneficiary rights) on any Person other than the Parties to this Agreement.

Section 7.15      Equity Financing; Cooperation.

(a)          During the Pre-Closing Period, the Buyer may execute Subscription Agreements with Equity Investors that would constitute a Permitted Equity Financing; provided that, without the prior written consent of Sellers, (i) no such Subscription Agreement shall provide for a purchase price of Buyer Class A Ordinary Shares (before the Domestication) or Buyer Class A Common Stock (after the Domestication) at a price per share of less than ten dollars ($10) per share, (ii) all the Subscription Agreements shall not in the aggregate provide for the issuance of Buyer Class A Ordinary Shares (before the Domestication) or Buyer Class A Common Stock (after the Domestication) such that following such issuance, the number of shares of Buyer Class A Ordinary Shares (before the Domestication) or Buyer Class A Common Stock (after the Domestication) so issued is greater than the total number of shares of Buyer Class A Ordinary Shares (before the Domestication) or Buyer Class A Common Stock (after the Domestication) that are redeemed pursuant to Buyer Share Redemptions, or (iii) no such Subscription Agreement shall provide for the issuance of any Buyer Warrants or any other Equity Interests of the Buyer or the Company other than as provided in clause (ii).

(b)          Prior to the earlier of the Closing and the termination of this Agreement pursuant to Section 11.1, Sellers and each Utz Company agree, and shall cause the appropriate officers and employees thereof, to use commercially reasonable efforts to cooperate, at Buyer’s sole cost and expense (which expense shall be treated as a Transaction Expense hereunder), in connection with (x) the arrangement of any Permitted Equity Financing, (y) the consummation of the Forward Purchase Agreements and (z) the marketing of the transactions contemplated by this Agreement and the Ancillary Agreements in the public markets and with existing equityholders of the Buyer (including in the case of clauses (x) and (y) with respect to the satisfaction of the relevant conditions precedent), in each case as may be reasonably requested by the Buyer, including by (i) upon reasonable prior notice, participating in meetings, calls, drafting sessions, presentations, and due diligence sessions (including accounting due diligence sessions) and sessions with prospective investors at mutually agreeable times and locations and upon reasonable advance notice (including the participation in any relevant “roadshow”), (ii) assisting with the preparation of customary materials, (iii) providing the Financial Statements and such other financial information regarding the Utz Companies readily available to the Sellers or the Company as is reasonably requested in connection therewith, subject to confidentiality obligations acceptable to Sellers, (iv), taking all corporate actions that are necessary or customary to obtain Permitted Equity Financing, consummate the Forward Purchase Agreements and market the transactions contemplated by this Agreement, and (v) otherwise reasonably cooperating in the Buyer’s efforts to obtain Permitted Equity Financing, consummate the Forward Purchase Agreements and market the transactions contemplated by this Agreement; provided, that (A) none of (x) Sellers, any Utz Company or any of their respective Affiliates, representatives or agents, or (y) prior to the Closing, no Utz Company, shall be required to incur any Liability in respect of the Permitted Equity Financing, the Forward Purchase Agreements or otherwise or any assistance provided in connection therewith, unless and solely to the extent such Liability is treated as a Transaction Expense, (B) nothing in this Section 7.15 shall require such cooperation to the extent it could unreasonably interfere with the business of any Utz Company, or conflict with or violate any applicable Law or Contract, or require any Seller or Utz Company to breach, waive or amend any terms of this Agreement, and (C) no Seller or any of their respective Affiliates or representatives or agents shall have any obligation to approve, authorize or ratify the execution of any of the definitive documents in respect of the Permitted Equity Financing (except in their capacity as an officer, director or other representative of an Utz Company), the Forward Purchase Agreements or otherwise.

Section 7.16      Affiliate Obligations. On or before the Closing Date, except for this Agreement and any Ancillary Agreements, the Company and Sellers shall take all actions necessary to cause all Liabilities of the Utz Companies under any Affiliated Transaction, other than as set forth on Section 7.16 of the Company and Sellers’ Disclosure Letter, to be terminated without any further force and effect and without any cost to or other Liability to any Utz Company or the Buyer.

Section 7.17      Stock Transactions. During the Pre-Closing Period, except as otherwise contemplated by this Agreement, neither Seller nor the Company nor any of its Affiliates, directly or indirectly, shall engage in any transactions involving the securities of the Buyer without the prior written consent of the Buyer.

Section 7.18      280G. Prior to the Closing, the Company shall use its commercially reasonable efforts to (i) obtain an executed waiver from each Person who is a “disqualified individual” (as defined in Section 280G of the Code) of that portion of any payments or economic benefits received or payable to such Person that is reasonably expected to constitute “parachute payments” (as defined in Section 280G(b) of the Code) (the “Waived 280G Benefits”), if any, and (ii) solicit the approval of its shareholders of any Waived 280G Benefits, in a manner that complies with Sections 280G(b)(5)(A)(ii) and 280G(b)(5)(B) of the Code and the Treasury Regulations thereunder. Solely to the extent there are any Waived 280G Benefits, (A) the Company shall forward to the Buyer at least five (5) days prior to distribution to the intended recipients, copies of all documents prepared by the Company in connection with this Section 7.18 (including supporting analysis and calculations) for the Buyer’s review and comment, and the Company shall consider the comments received from the Buyer on such documents at least two (2) days prior to distribution to the intended recipients in good faith, and (B)  prior to Closing, the Company shall deliver to the Buyer evidence of the results of such vote. Such shareholder approval, if obtained, shall establish the disqualified individual’s right to receive or retain the Waived 280G Benefits, such that if such shareholder approval is not obtained, no portion of the Waived 280G Benefits shall be paid, payable, received or retained.

Section 7.19      Domestication. Subject to receipt of the Required Vote, prior to the Closing, the Buyer shall cause the Domestication to become effective, including by (a) filing with the Delaware Secretary of State a Certificate of Domestication with respect to the Domestication, in form and substance reasonably acceptable to the Buyer and the Sellers, together with the Buyer Certificate of Incorporation, in each case, in accordance with the provisions hereof and the DGCL, (b) completing and making and procuring all those filings required to be made with the Registrar of Companies of the Cayman Islands under Cayman Islands Companies Law (2020 Revision) in connection with the Domestication, and (c) obtaining a certificate of de-registration from the Registrar of Companies of the Cayman Islands, and the Buyer shall complete and make all filings required to be made with the SEC and the Stock Exchange to list the Buyer Class A Common Stock on the Stock Exchange. Immediately prior to the Closing, the Buyer shall adopt the Buyer Bylaws in the form attached hereto as Exhibit B as its bylaws until thereafter amended in accordance with the provisions thereof, the Buyer Certificate of Incorporation and the DGCL. In accordance with applicable Law, the Domestication shall provide that at the effective time of the Domestication, by virtue of the Domestication, and without any action on the part of any Buyer Shareholder, (i) each Buyer Class A Share outstanding immediately prior to the effective time of the Domestication shall be converted into one (1) share of Buyer Class A Common Stock and (ii) except as set forth in the Sponsor Side Letter, each Buyer Class B Share outstanding immediately prior to the effective time of the Domestication shall be converted into one (1) share of Buyer Class A Common Stock. Sellers and the Company will reasonably cooperate with the Buyer with respect to the Domestication.

Section 7.20      Name Change. In connection with the Domestication, the Buyer will complete the Name Change.

Section 7.21      Buyer Warrants. By virtue of the Domestication and without any action on the part of any holder of Buyer Warrants, each Buyer Warrant that is outstanding immediately prior to the consummation of the Domestication shall, pursuant to and in accordance with Section 4.4 of the Warrant Agreement, automatically and irrevocably be modified solely to provide that such Buyer Warrant shall entitle the holder thereof to acquire shares of Buyer Class A Common Stock rather than Buyer Class A Ordinary Shares (after giving effect to the Domestication).

Section 7.22      Exclusivity.

(a)          From the Effective Date, until the earlier of the Closing or the termination of this Agreement in accordance with Section 11.1, neither Seller nor the Company shall, directly or indirectly, (i) solicit, initiate or take any action to facilitate or encourage any inquiries or the making, submission or announcement of, any proposal or offer from any Person or group of Persons other than the Buyer and the Sponsor (and their respective representatives, acting in their capacity as such) (a “Competing Buyer”) that may constitute, or could reasonably be expected to lead to, a Competing Transaction; (ii) enter into, participate in, continue or otherwise engage in, any discussions or negotiations with any Competing Buyer regarding a Competing Transaction; (iii) furnish (including through any virtual data room) any information relating to any Utz Company or any of its assets or businesses, or afford access to the assets, business, properties, books or records of any Utz Company to a Competing Buyer, in all cases for the purpose of assisting with or facilitating, or that could otherwise reasonably be expected to lead to, a Competing Transaction; (iv) approve, endorse or recommend any Competing Transaction; or (v) enter into a Competing Transaction or any agreement, arrangement or understanding (including any letter of intent or term sheet) relating to a Competing Transaction or publicly announce an intention to do so; provided that none of the foregoing restrictions shall prohibit any Utz Company from taking the actions permitted by the exceptions set forth in Sections 6.1(a)(iii), 6.1(a)(ix), 6.1(a)(x) and 6.1(a)(xiv) of this Agreement or the related sections of the Company and Sellers’ Disclosure Letter, and any such action shall not be deemed a violation of this Section 7.22(a); provided further, that none of the foregoing restrictions shall prohibit any Utz Company from participating in, continuing or otherwise engaging in, any discussions or negotiations regarding any Competing Transaction referenced in clause (d) of the definition of Competing Transaction without regard to the consideration cap set forth in Section 6.1(a)(ix) of the Company and Sellers’ Disclosure Letter, so long as (A) such discussions do not include any discussions or negotiations with potential debt or equity financing sources for such Competing Transaction and (B) Buyer is notified of such discussions and provided with copies of any related material documentation, in each case, subject to Sponsor and Buyer first executing a joinder to any confidentiality agreement entered into by any Utz Company in connection with such Competing Transaction.

(b)          From the Effective Date, until the earlier of the Closing or the termination of this Agreement in accordance with Section 11.1, Buyer shall not directly or indirectly, enter into a Buyer Competing Transaction.

Article VIII
ADDITIONAL AGREEMENTS

Section 8.1        Access to Books and Records. From and after the Closing, the Buyer and its Affiliates shall make or cause to be made available to Sellers (including the right to copy at Sellers’ sole expense) all books, records and documents relating to periods prior to the Closing Date of any Utz Company (and the assistance of employees responsible for such books, records and documents) during regular business hours and upon reasonable prior written request as may be reasonably necessary for (a) investigating, settling, preparing for the defense or prosecution of, defending or prosecuting any Proceeding (other than an actual or potential Proceeding (i) brought or threatened to be brought by Sellers or their Affiliates arising under this Agreement or (ii) brought or threatened to be brought by the Buyer or their Affiliates against Sellers or their Affiliate relating to or arising under this Agreement), (b) preparing reports to Governmental Entities or (c) such other purposes (that do not involve an actual or potential Proceeding brought by Sellers or its Affiliates against the Buyer or by the Buyer or its Affiliates against Sellers arising under this Agreement) for which access to such documents is reasonably necessary. The Buyer shall (at the Company’s sole expense) cause each Utz Company to maintain and preserve all such books, records and other documents in the possession of the Utz Companies as of the Closing Date for the greater of (i) six (6) years after the Closing Date and (ii) any applicable statutory or regulatory retention period, as the same may be extended, and in each case, shall offer to transfer such records to Sellers, at the end of such period. Notwithstanding anything in this Agreement to the contrary, the Buyer shall not be required to provide any access or information to Sellers, their Affiliates or any of their respective representatives which constitutes information protected by attorney-client privilege or which would violate any obligation owed to a third party under Contract or Law. This Section 8.1 shall not apply to Taxes or Tax matters, which are the subject of Section 9.1.

Section 8.2        Use of Name. From and after the Closing, no Seller nor any of their respective Affiliates (as used in this Section 8.2, other than the Utz Companies) will have any right to use the Brand Names, and Sellers shall not, and shall not permit any of their respective Affiliates to, use the Brand Names. In furtherance thereof, as promptly as practicable, but no later than ninety (90) days after the Closing Date, Sellers shall, and shall cause their Affiliates to remove, strike over or otherwise eliminate all Brand Names from all materials owned by Sellers or any of their respective Affiliates and used or displayed publicly including any sales and marketing materials, displays, signs, promotional materials and other materials; provided, that Sellers and their Affiliates shall have no obligation to remove, strike over or otherwise eliminate any Brand Names in any materials (including financial, investment and/or tax records) in the possession, custody or control of Sellers or any of their Affiliates and may continue to retain such materials for archival purposes or as required by applicable Law.

Section 8.3        Foundation Transfer. In connection with any Foundation Transfer (as defined in the Company A&R LLCA), the Buyer hereby agrees that it will not elect to settle all or any portion of any Exchange (as defined in the Company A&R LLCA) that constitutes a Foundation Transfer in cash otherwise permitted pursuant to Section 4.6(a)(ii) or 4.6(f) of the Company A&R LLCA.

Article IX
TAX MATTERS

Section 9.1        Certain Tax Matters.

(a)         Tax Returns.

(i)            Sellers shall prepare and file, or cause to be prepared and filed, at the cost and expense of the Utz Companies, all Tax Returns of each Utz Company that are due on or prior to the Closing Date (taking into account applicable extensions) and all Tax Returns of each Utz Company for any taxable period ending on or prior to the Closing Date (collectively, the “Sellers Prepared Returns”). Each Sellers Prepared Return filed after the Closing Date shall be prepared in a manner consistent with the Utz Companies’ past practices except as otherwise required by applicable Law. Each Sellers Prepared Return that is an Income Tax Return or other material Tax Return filed after the Closing Date (taking into account applicable extensions) shall be submitted to the Buyer no later than thirty (30) days prior to the due date for filing such Tax Return (taking into account applicable extensions) for review. Sellers shall consider in good faith all reasonable comments received from the Buyer no later than ten (10) days prior to the due date for filing any such Tax Return (taking into account applicable extensions). Subject to Section 9.1(k), no filed Sellers Prepared Return may be amended after the Closing without the prior written consent of the Buyer, which consent shall not be unreasonably withheld, conditioned or delayed. The Buyer shall prepare and file, or cause to be prepared and filed, at the cost and expense of the Utz Companies, all Tax Returns of each Utz Company (other than Sellers Prepared Returns) for any Straddle Period that are due after the Closing Date (taking into account applicable extensions) (the “Buyer Prepared Returns”). Each Buyer Prepared Return shall be prepared in a manner consistent with the Utz Companies’ past practices except as otherwise required by applicable Law. Each Buyer Prepared Return that is an Income Tax Return or other material Tax Return shall be submitted to Sellers no later than thirty (30) days prior to the due date for filing such Tax Return (taking into account applicable extensions) for review and approval, which approval shall not be unreasonably withheld, conditioned or delayed. Notwithstanding the foregoing, each Tax Return described in this Section 9.1(a) for a taxable period that includes the Closing Date (x) for which the “interim closing method” under Section 706 of the Code (or any similar provision of state, local or non-U.S. Law) is available shall be prepared in accordance with such method, (y) for which an election under Section 754 of the Code (or any similar provision of state, local or non-U.S. Law) may be made shall make such election and (z) shall be prepared in a manner such that any and all deductions, losses, or credits of any of the Utz Companies resulting from, attributable to or accelerated by the payment of the Target Repaid Indebtedness and Transaction Expenses in connection with the transactions contemplated by this Agreement (which have not been paid on or before the Closing Date, or accrued or taken into account for or with respect to a Pre-Closing Tax Period) are allocated to the portion of the taxable period beginning after the Closing Date to the extent permitted by applicable Law. For the avoidance of doubt, all Tax Returns of each Utz Company (other than Sellers Prepared Returns and Buyer Prepared Returns) shall be prepared and filed in accordance with the terms of the Company A&R LLCA.

(ii)            Buyer shall cause the Utz Companies to pay or reimburse the Sellers for the costs and expenses for the preparation of all Tax Returns required to be filed by Sellers and SRS Leasing, LLC for taxable periods that end in 2019 (such Tax Returns, the “2019 Seller Returns”) to the extent such costs and expenses have not already been paid or reimbursed by the Utz Companies as of the Closing. Sellers shall be responsible for the costs and expenses for the preparation of all Tax Returns required to be filed by Sellers for taxable periods ending after December 31, 2019. Each 2019 Seller Return that is an Income Tax Return shall be submitted to the Buyer no later than twenty (20) days prior to the due date for filing such Tax Return (taking into account applicable extensions) for review. Sellers shall consider in good faith all reasonable comments received from the Buyer no later than ten (10) days after such Tax Returns are submitted to Buyer.

(iii)            After the Closing, without the prior written consent of the Sellers (which consent shall not be unreasonably withheld, conditioned or delayed), Buyer shall not (and shall neither cause nor permit any Utz Company) to take any of the following actions if such action would reasonably be expected to have a material adverse and disproportionate Tax effect on Sellers or any of their direct or indirect current or former owners under this Agreement or otherwise as compared to the Buyer: (w) file (except for Sellers Prepared Returns and Buyer Prepared Returns as permitted under Section 9.1(a)(i)), amend, re-file or otherwise modify any Tax Return relating in whole or part to any Utz Company with respect to any Pre-Closing Tax Period or Straddle Period, (x) enter into an agreement to extend the statute of limitations with respect to Tax Returns relating in whole or part to any Utz Company with respect to any Pre-Closing Tax Period or Straddle Period, (y) make any Tax election or take any position on any Tax Return with respect to any Utz Company that would have retroactive effect to a Pre-Closing Tax Period or Straddle Period, or (z) initiate discussion, voluntary disclosure or examination with any Taxing Authority regarding Taxes or Tax Returns with respect to any Utz Company for any Pre-Closing Tax Period or Straddle Period (except that the Buyer and the Utz Companies shall be permitted to continue to comply with any voluntary disclosure program that was initiated prior to the Closing Date).

(iv)            Notwithstanding the deadlines set forth in Sections 9.1(a)(i) and (ii) with respect to any Tax Return described therein, the Sellers and Buyer shall reasonably cooperate to set later deadlines if it is reasonably necessary in order to allow sufficient time for preparation and review of such Tax Return prior to the due date of such Tax Return (including applicable extensions) and, in the case of a 2019 Seller Return, to set a shorter time period for Buyer to review such Tax Return.

(b)          For purposes of determining whether the following Taxes are attributable to a Pre-Closing Tax Period:

(i)            in the case of property Taxes and other similar Taxes imposed for a Straddle Period, the amounts that are allocable to the Pre-Closing Tax Period shall be deemed to be the amount of such Tax for the entire taxable period multiplied by a fraction, the numerator of which is the number of days in the portion of the taxable period ending on and including the Closing Date and the denominator of which is the number of days in the entire Straddle Period;

(ii)            in the case of Taxes imposed on any Utz Company as a result of income of any Flow-Thru Entity realized on or prior to the Closing Date (such income being computed assuming the Flow-Thru Entity had a year that ends as of the end of the day on the Closing Date and closed its books), such Taxes shall be treated as Taxes of an Utz Company for a Pre-Closing Tax Period;

(iii)           in the case of all other Taxes for a Straddle Period (including Taxes based on or measured by income, receipts, payments, or payroll (to the extent not covered by clauses (i)-(ii) above)), the amount allocable to the Pre-Closing Tax Period shall be determined based on an interim closing of the books as of the end of the day on the Closing Date using a “closing of the books” methodology (including deductions under Section 168(k) of the Code); provided that for purposes of this clause (iii), any item determined on an annual or periodic basis (including amortization and depreciation deductions and the effects of graduated rates but not including deductions under Section 168(k) of the Code) shall be allocated to the portion of the Straddle Period ending on the Closing Date based on the mechanics set forth in clause (i) for periodic Taxes; and

(iv)          in the case of Taxes in the form of interest, penalties or additions, all such Taxes shall be treated as attributable to a Pre-Closing Tax Period to the extent relating to a Tax for a Pre-Closing Tax Period (determined in accordance with clauses (i)-(iii) above) whether such items are incurred, accrued, assessed or similarly charged on, before or after the Closing Date.

(c)          Notwithstanding anything in this Agreement to the contrary, Section 10.2(e) shall not apply to Taxes or Tax matters, which are covered by Section 9.1, and, in the event of any conflict between the Company A&R LLCA and Section 10.2(e), the Company A&R LLCA shall control.

(d)         Each Party shall reasonably cooperate (and cause its Affiliates to reasonably cooperate), as and to the extent reasonably requested by each other Party, in connection with the preparation and filing of Tax Returns required to be filed by the Sellers and Tax Returns pursuant to Section 9.1(a), including Buyer signing Sellers Prepared Returns that have been prepared in accordance with Section 9.1(a)(i) on behalf of an Utz Company, the preparation of the Allocation, determining the amount of “Tax Distributions” to be made pursuant to the Company’s LLCA (as defined therein) from and after the Effective Date and prior to the Closing (provided such cooperation shall not prevent the Company from making the determination of the amount of such “Tax Distributions” in accordance with and pursuant to the Company’s LLCA and the definition of Tax Distributions hereunder), updating Section 9.2(a) and Section 9.2(b) of the Company and Sellers’ Disclosure Letter to accurately reflect facts as of the Closing, determining any amount due and owing under Section 9.2, and any Tax Proceeding with respect to Taxes or Tax Returns of any Utz Company. Such cooperation shall include the provision of records and information which are reasonably relevant to any such Tax Return, Tax Proceeding or other Tax related matter and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. Following the Closing, the Buyer, the Sellers (to the extent the Sellers have any such books and records in their possession) and the Company shall (and the Company shall cause the Utz Companies to) retain all books and records with respect to Tax matters pertinent to the Utz Companies relating to any taxable period beginning before the Closing Date until the seven (7) year anniversary of the Closing Date, and to abide by all record retention agreements entered into with any Taxing Authority. Sellers shall (and shall cause their respective Affiliates (other than the Utz Companies after the Closing) to) provide any information reasonably requested to allow the Buyer or any Utz Company to comply with any information reporting or withholding requirements contained in the Code or other applicable Laws or to compute the amount of payroll or other employment Taxes due with respect to any payment made in connection with this Agreement.

(e)           Each Party shall promptly notify the other Parties in writing upon receipt by the applicable Party or its Affiliates of notice of any Tax Proceeding with respect to Taxes or Tax Returns of any Utz Company relating to any Pre-Closing Tax Period or Straddle Period; provided that the failure to so notify the other Parties shall not relieve an Indemnitor of its indemnification obligations under Section 10.2, except to the extent that an Indemnitor is materially prejudiced thereby. Such notification shall specify in reasonable detail the basis for such Tax Proceeding and shall include a copy of the relevant portion of any correspondence received from the Taxing Authority.

(i)            The Controlling Party shall have the right to control, at the cost and expense of the Utz Companies, any Tax Proceeding in respect of any Utz Company for any Pre-Closing Tax Period or Straddle Period; provided, however, that (A) the Non-Controlling Party shall have the right, at the cost and expense of the Utz Companies, to participate in any such Tax Proceeding, (B) the Controlling Party shall provide the Non-Controlling Party with a timely and reasonably detailed account of each stage of such Tax Proceeding, (C) the Controlling Party shall not settle, compromise or abandon any such Tax Proceeding without obtaining the prior written consent of the Non-Controlling Party, which consent shall not be unreasonably withheld, conditioned or delayed, and (D) the Controlling Party shall defend such Tax Proceeding diligently and in good faith and consult with the Non-Controlling Party in good faith concerning the appropriate strategy for contesting such Tax Proceeding; provided, further, that the Non-Controlling Party, at the cost and expense of the Utz Companies, may control and contest any such Tax Proceeding for which the Controlling Party would otherwise have the right to control under this Section 9.1(e)(i) if the Controlling Party declines or fails to diligently conduct such Tax Proceeding; provided, further, however, that if the Non-Controlling Party exercises its right to control any such Tax Proceeding under the preceding clause, the Controlling Party shall have the right, at the cost and expense of the Utz Companies, to participate in any such Tax Proceeding and the Non-Controlling Party shall (x) provide the Controlling Party with a timely and reasonably detailed account of each stage of such Tax Proceeding, (y) not settle, compromise or abandon any such Tax Proceeding without obtaining the prior written consent of the Controlling Party, which consent shall not be unreasonably withheld, conditioned or delayed, and (z) consult with the Controlling Party in good faith concerning the appropriate strategy for contesting such Tax Proceeding. With respect to any Tax Proceeding described in this Section 9.1(e)(i), “Controlling Party” means (1) the Sellers if the Sellers and their direct and indirect owners would reasonably be expected to bear more than fifty percent (50%) of the Tax liability in connection with such Tax Proceeding (either directly or through claims for indemnification under Article X), (2) the Buyer if the Buyer (directly) or the Utz Companies would reasonably be expected to bear more than fifty percent (50%) of the Tax liability in connection with such Tax Proceeding, in each case, assuming that the full amount of Tax at issue in such Tax Proceeding were imposed and taking into account claims for indemnification under Article X, or (3) otherwise, the Buyer; and “Non-Controlling Party” means whichever of the Sellers or the Buyer is not the Controlling Party with respect to such Tax Proceeding.

(ii)            Sellers shall have the right to control, at the cost and expense of the Sellers, any Tax Proceeding in respect of the Sellers for taxable periods that end in 2019; provided, however, that (A) Sellers shall provide the Buyer with a timely and reasonably detailed account of each stage of such Tax Proceeding and (B) Sellers shall consult with the Buyer in good faith concerning the appropriate strategy for contesting such Tax Proceeding.

(f)           All Transfer Taxes shall be borne by the Utz Companies. The Company shall prepare and file or shall cause the applicable Utz Company to prepare and file in a timely manner, all necessary Tax Returns and other documentation with respect to all Transfer Taxes, and, if required by applicable Law, the Sellers, the Company and the Buyer will, and will cause their respective Affiliates to, reasonably cooperate and join in the execution of any such Tax Returns and other documentation. The Parties shall reasonably cooperate to establish any available exemption from (or reduction in) any Transfer Tax. The Company shall provide the other Parties with evidence reasonably satisfactory to such other Party or Parties that such Transfer Taxes have been paid, or if the relevant transactions are exempt from Transfer Taxes, evidence of the filing of an appropriate certificate or other evidence of exemption.

(g)          The Parties acknowledge and agree that for U.S. federal and, as applicable, state and local income Tax purposes, they intend that (i) the transaction contemplated by Section 2.2(c) (A) be treated as a sale as of the Closing Date of the Assigned Company Units by Sellers to the Buyer and a purchase of the Assigned Company Units by the Buyer from Sellers (the “Sale”), in exchange for the Net Cash Consideration and certain rights under the Tax Receivable Agreement, and allocated as between the Sellers, as contemplated by Section 2.2(c) in a transaction described in Section 741 of the Code (and any similar applicable state or local provisions of Tax Law) and (B) give rise to an adjustment to the Buyer’s tax basis in the direct and indirect assets of the Company (including stock of the Utz C Corp Entities) pursuant to Section 743(b) of the Code (and, in each case, any equivalent adjustments for applicable state and local income Tax purposes), (ii) the Sale be governed by the first sentence of each of Treasury Regulations Section 1.197-2(h)(12)(i) and Section 1.197-2(h)(12)(v)(A), (iii) the payment and contribution of the Excess Cash contemplated by Section 2.2(b)(ii) and Section 2.2(b)(iii) be treated as a contribution of such Excess Cash by the Buyer to the Company governed by Section 721 of the Code (and any similar applicable state or local provisions of Tax Law), (iv) the Domestication qualify as a “reorganization” within the meaning of Section 368(a)(1)(F) of the Code, (v) this Agreement be, and hereby adopt this Agreement as, a “plan of reorganization” within the meaning of Section 368 of the Code, (vi) each step of the Restructuring qualify for the Restructuring Intended Tax Treatment, (vii) the BSOF Preferred Equity Purchase and the BSOF Common Equity Purchase (A) be treated as a sale as of the Closing Date of the BSOF Preferred Interests and the BSOF Common Interests by BSOF to the Buyer and a purchase of such interests by the Buyer from BSOF (the “BSOF Sale”), in exchange for the BSOF Consideration and allocated as set forth in the BSOF Purchase Agreement in a transaction described in Section 741 of the Code (and any similar applicable state or local provisions of Tax Law) and (B) give rise to an adjustment to the Buyer’s tax basis in the direct and indirect assets of the Sellers pursuant to Section 743(b) of the Code (and, in each case, any equivalent adjustments for applicable state and local income Tax purposes), and (viii) the Redemption be treated as a distribution pursuant to Sections 731 and 732 of the Code (and any similar applicable state or local provisions of Tax Law) (collectively, the “Intended Tax Treatment”).

(h)          As soon as reasonably practicable following the Closing, the Parties shall adjust the number of Exchanged Company Units, Assigned Company Units, and Issued Company Units, in each case, (1) that are Common Units (as defined in the Company A&R LLCA) such that (A) the aggregate number of Acquired Company Units received by the Buyer at the Closing remains the same and (B) the value and Capital Account (as defined in the Company A&R LLCA) associated with each Acquired Company Unit is equal in amount for U.S. federal income Tax purposes (assuming that such value and Capital Account associated with each Acquired Restricted Company Unit is zero), taking into account the amounts disbursed pursuant to Section 2.2 and the U.S. federal income Tax treatment thereof and (2) that are Restricted Common Units (as defined in the A&R LLCA) such that (A) the aggregate number of Acquired Restricted Company Units received by the Buyer at the Closing remains the same and (B) the fraction of Exchanged Company Units, Assigned Company Units, and Issued Company Units, respectively, that are Acquired Restricted Company Units is equal to a fraction, the numerator of which is the aggregate number of Acquired Restricted Company Units and the denominator of which is the sum of the Acquired Restricted Company Units plus the Acquired Company Units. Within one hundred eighty (180) days following the Closing Date, but in no event later than January 31, 2021, the Buyer will prepare, and deliver (or cause to be prepared and delivered) to Sellers, (i) an allocation statement allocating the Net Cash Consideration and any other amounts treated as consideration for U.S. federal income Tax purposes with respect to the Sale (the “Aggregate Consideration”) and the BSOF Consideration and any other amounts treated as consideration for U.S. federal income Tax purposes with respect to the BSOF Sale among the assets of the Company and the Company Subsidiaries that are classified as entities that are disregarded as separate from the Company for U.S. federal income Tax purposes, in each case, taking into account any adjustment required by Law pursuant to Section 734(b) of the Code as a result of the Redemption and in accordance with Section 1060 of the Code (and any other applicable section of the Code), the Treasury Regulations thereunder (and any similar provision of state or local Law) (the “Allocation”) and (ii) a balance sheet, as of the Closing Date, that sets out the Tax basis of the assets then owned by the Company and the Company Subsidiaries that are classified as entities that are disregarded as separate from the Company for U.S. federal income Tax purposes on the Closing Date and the amount of the liabilities of the Company and such Company Subsidiaries on the Closing Date (the “Tax Basis Balance Sheet”). The Allocation shall contain sufficient detail to permit the Parties to make the computations and adjustments required under Sections 734(b), 743(b), 751 and 755 of the Code and the Treasury Regulations thereunder. Within thirty (30) days after the receipt of the Tax Basis Balance Sheet and Allocation, the Sellers will propose any changes or will indicate its concurrence therewith. If the Buyer and Sellers do not agree with the Tax Basis Balance Sheet or Allocation, then the Buyer and Sellers shall attempt in good faith to reach agreement on the Tax Basis Balance Sheet or the Allocation, as applicable, in a manner consistent with applicable income Tax Law. If the Buyer and Sellers cannot reach agreement on the Tax Basis Balance Sheet or the Allocation within fifteen (15) days after receipt of the Sellers’ proposed changes, then the Buyer and Sellers shall submit the dispute to a nationally recognized accounting firm mutually acceptable to the Buyer and Sellers (the “Tax Accounting Firm”) for resolution, acting as an accounting expert (and not as an arbitrator). For this purpose, (x) the Tax Accounting Firm may not assign a value to any disputed item greater than the greatest value for such disputed item claimed by any party or less than the lowest value for such disputed item claimed by any party and (y) all fees and expenses relating to the work, if any, to be performed by the Tax Accounting Firm will be allocated between the Buyer, on the one hand, and Sellers, on the other hand, in the same proportion that the aggregate amount of the disputed items so submitted to the Tax Accounting Firm that is unsuccessfully disputed by each such Party (as finally determined by the Tax Accounting Firm) bears to the total amount of such disputed items so submitted. The Tax Basis Balance Sheet and the Allocation, as agreed to by the Buyer and Sellers or as finally determined by the Tax Accounting Firm, as the case may be, shall be binding on all Parties (the “Final Tax Basis Balance Sheet” and the “Final Allocation,” respectively).

(i)           The Parties shall, and shall cause each of their respective applicable Affiliates to: (1) prepare and file all Tax Returns consistent with the Final Tax Basis Balance Sheet, Final Allocation and Intended Tax Treatment (collectively, the “Tax Positions”); (2) take no position in any communication (whether written or unwritten) with any Governmental Entity or any other action inconsistent with the Tax Positions; (3) promptly inform each other of any challenge by any Governmental Entity to any portion of the Tax Positions; (4) consult with and keep one another informed with respect to the status of, and any discussion, proposal or submission with respect to, any such challenge to any portion of the Tax Positions; and (5) use their respective commercially reasonable efforts to defend the Tax Positions in any Tax Proceeding; provided that, to the extent permitted by applicable Law, the Parties shall cooperate to make appropriate adjustments to the Final Allocation (in a manner consistent with the principles used to create the Final Allocation) to reflect any adjustments to the Aggregate Consideration as a result of any indemnification payments pursuant to Section 10.2, in which case such adjustments as mutually agreed by the Parties shall be binding on all Parties and considered part of the Final Allocation for purposes of this Section 9.1(i).

(j)           Without the prior written consent of the Buyer, Sellers and the Company shall not, and shall cause their respective Affiliates not to, make or cause to be made any election under Treasury Regulation Section 301.9100-22 (or any similar provision of state, local, or non-U.S. Laws) with respect to any Utz Company. With respect to any Tax Proceeding of any Utz Company treated as a partnership for federal income Tax purposes for any Pre-Closing Tax Period or any Straddle Period and for which the election provided for in Section 6226 of the Code (or any similar provision of state, local, or non-U.S. Laws) is available, the Company shall (and Buyer shall cause the Company to), and shall cause their respective eligible Subsidiaries to, timely make all such available elections in accordance with applicable Laws (and Sellers expressly consent to, and shall reasonably cooperate to the extent requested by Buyer in, the making of all such available elections). Sellers and the Company shall, and shall cause their respective applicable Subsidiaries to, comply with all applicable Laws with respect to the making and implementation of any such election. Sellers shall consult in good faith with the Buyer prior to, and reasonably in advance of, effectuating any transaction whereby (i) each Seller would no longer be properly treated as a separate partnership (as opposed to Sellers together being treated as a single partnership) or either Seller would liquidate, in each case, for U.S. federal or any applicable state or local income Tax purposes and (ii) either Seller or any of their respective Affiliates could reasonably be expected to become a related person (within the meaning of Code Section 197(f)(9)(C) and Treasury Regulations Section 1.197-2(h)(6)) to the Buyer and following which any Section 197 intangible (within the meaning of Section 197 of the Code) of any of the Utz Companies could reasonably be expected to become subject to the anti-churning rules of Section 197(f)(9) of the Code or Treasury Regulations Section 1.197-2(h). Each of the Company and Sellers shall (and Buyer shall cause the Company to), and shall cause all of their respective eligible Subsidiaries, if any, to, make or cause to remain in effect, as applicable, a valid election under Section 754 of the Code (and any similar provision of state, local or non-U.S. Law) for any taxable period that includes the Closing Date (and, with respect to the Company and its eligible Subsidiaries, if any, for any taxable period that includes the date of any Exchange (as defined in the Company A&R LLCA)).

(k)          The Sellers shall be entitled to receive, without duplication, any refunds of Seller Taxes actually received by any of the Utz Companies, and any amounts in respect of Seller Taxes actually applied as a credit against any Taxes (other than Seller Taxes) of the Utz Companies otherwise payable in cash by any of the Utz Companies, after the Closing Date, for all Pre-Closing Tax Periods and any Straddle Period attributable to the period ending as of or before the Closing Date, except to the extent such refund or credit is (i) attributable to any loss, deduction or similar item arising in a taxable period (or portion of a Straddle Period) beginning after the Closing Date (including items governed by the Tax Receivable Agreement) applied (e.g., as a carryback) to a Pre-Closing Tax Period, (ii) reflected as an asset on the books and records of the Utz Companies as of the end of the day on the Closing Date, or (iii) required to be paid to a third party pursuant to a contract entered into at or before the Closing. The Company shall pay or cause to be paid to the Sellers the amount of any such refund or credit to which Sellers are entitled under this Section 9.1(k), net of any Taxes and out-of-pocket expenses incurred in connection with obtaining such refund or credit, within ten (10) days after such receipt of such refund or such application of such credit by the Utz Companies. To the extent that any of the Utz Companies is required to repay to the applicable Taxing Authority any refund or credit paid to the Sellers pursuant to this Section 9.1(k) (or any such refund or credit is otherwise disallowed or reduced by the applicable Taxing Authority), the Sellers shall repay to the Company (for the account of the applicable Utz Company) such refund or credit (plus any interest or penalties) imposed thereon by the relevant Taxing Authority) as promptly as reasonably practicable after a written request therefor. Upon the written request of the Sellers, Buyer shall cause the applicable Utz Companies to file a claim for refund or credit to which Sellers would be entitled under this Section 9.1(k), including through the filing of amended Tax Returns or otherwise, relating to an Utz Company (or its assets or operations) for any Pre-Closing Tax Period or Straddle Tax Period in such form as the Sellers may reasonably request.

Section 9.2        Post -Closing Adjustment to Tax Distributions for Pre-Closing Tax Periods.

(a)          To the extent a Seller’s or SRS Leasing LLC’s 2019 federal, state or local Income Tax Returns are not filed prior to the Closing, then after the Closing, the Company shall make (and the Buyer shall cause the Company to make) “Tax Distributions” to each Seller as provided in clauses (ii) and (iii) of the definition thereof in the Company’s LLCA in effect immediately prior to the Closing based on the final IRS Schedule K-1s (and any similar form prescribed for state or local income Tax purposes) of such Seller and SRS Leasing, LLC, as applicable, for its taxable year ending in 2019 (“2019 Tax Year”) as filed after the Closing, taking into account and reduced (but not below zero) by any “Tax Distributions” (as defined in and made pursuant to the Sellers’ LLCA, the Company’s LLCA, and SRS Leasing’s LLCA) previously made by such Seller or SRS Leasing, LLC, as applicable, to its members and, without duplication, by the Company to such Seller prior to the Closing, in each case with respect to its 2019 Tax Year (which distributions made prior to the Closing in respect of the 2019 Tax Year (the “2019 Pre-Closing Tax Distributions”) are set forth on Section 9.2(a) of the Company and Sellers’ Disclosure Letter as of the Effective Date, and which shall be updated in accordance with Section 9.1(d)). Such payment, if any, shall be made to such Seller within ten (10) days after the date such Tax Returns and final Schedule K-1s (and any similar form prescribed for applicable state or local income Tax purposes) of such Seller or SRS Leasing, LLC are filed. For purposes of this Section 9.2(a), any such “Tax Distributions” made after the Closing with respect to SRS Leasing, LLC shall be made to Series U.

(b)          After the Closing, the Company shall make (and the Buyer shall cause the Company to make) estimated “Tax Distributions” to the Sellers as provided in clauses (i) and (ii) of the definition thereof in the Company’s LLCA in effect immediately prior to the Closing for the taxable year of the Company that includes the Closing Date, but only with respect to taxable income of the Company allocated to the Sellers for the portion of such taxable year ending as of the end of the day on the Closing Date, based on an interim closing of the books of the Company (“2020 Pre-Closing Taxable Income”), taking into account and reduced (but not below zero) by any “Tax Distributions” (as defined in and made pursuant to the Company’s LLCA) previously made by the Company with respect to its 2020 taxable year prior to the Closing (which distributions made prior to the Closing in respect of such 2020 taxable year (the “2020 Pre-Closing Tax Distributions”) are set forth on Section 9.2(b) of the Company and Sellers’ Disclosure Letter as of the Effective Date, and which shall be updated in accordance with Section 9.1(d)). The Company shall pay (and the Buyer shall cause the Company to pay) such estimated tax payments, if any, to the Sellers on the quarterly estimated tax payment dates consistent with past practices. If, based on the final IRS Schedule K-1 (and any similar form prescribed for state or local income Tax purposes) with respect to the 2020 taxable year of the Company, the sum of (i) the 2020 Pre-Closing Tax Distributions, and (ii)  the estimated tax payments for the 2020 tax year made by the Company to the Sellers after the Closing pursuant to this Agreement is less than the amount that would have been computed based on such final tax information of 2020 Pre-Closing Taxable Income reflected on such final Tax Returns, calculated in accordance with such Company’s LLCA, then the Company shall pay (and the Buyer shall cause the Company to pay) such shortfall to the Sellers as soon as possible after such shortfall is determined by the Parties.

(c)          For U.S. federal and applicable state and local income Tax purposes, any payments by the Company pursuant to this Section 9.2 shall be treated as a distribution from the Company under Section 731 of the Code during the taxable year of the Company that includes the Closing Date for the portion of such taxable year prior to the Closing.

Article X
INDEMNIFICATION

Section 10.1      Survival Periods. None of the representations, warranties, covenants or agreements set forth in this Agreement or in any certificate delivered pursuant to this Agreement, including any rights arising out of any breach of such representations, warranties, covenants or agreements, shall survive the Closing (and there shall be no Liability after the Closing in respect thereof), in each case, except for (i) those covenants and agreements that by their terms are to be performed, in each case, in whole or in part after the Closing, and then only with respect to the period following the Closing (including any breaches occurring after the Closing), which shall survive until thirty (30) days following the date of the expiration, by its terms, of the obligation of the applicable Party under such covenant or agreement, including when such covenant or agreement has been fully performed, (ii) Section 3.24(b), which shall survive for fifteen (15) months after the Closing Date, (iii) Section 6.1(a), which shall survive for twelve (12) months after the Closing Date, and (iv) Section 10.2(a)(ii), which shall survive until thirty (30) days after the date of the expiration of the applicable statute of limitations with respect to the applicable Tax. Notwithstanding the foregoing, any representation, warranty, covenant or agreement in respect of which indemnity may be sought under Section 10.2, and the indemnity with respect thereto, shall survive the time at which it would otherwise terminate pursuant to this Section 10.1 if written notice of the breach or non-fulfillment thereof giving rise to such right or alleged right of indemnity shall have been given to the Party against whom such indemnity may be sought prior to such time, in which case it shall survive until the associated claim is finally resolved.

Section 10.2      General Indemnification.

(a)          Subject to the limitations set forth in this Section 10.2 and the other limitations set forth in this Agreement, Sellers shall jointly and severally indemnify the Buyer Indemnified Parties and save and hold each of them harmless from and against and pay on behalf of or reimburse such Buyer Indemnified Parties for any and all Losses which any such Buyer Indemnified Party may incur, be subject to or suffer as a result of, arising from or relating to:

(i)            any breach or non-fulfillment of Section 6.1(a) prior to the Closing, in each case other than to the extent accounted for on a dollar for dollar basis in the Closing Statement;

(ii)            any and all Pre-Closing Imputed Underpayments (including if paid by an Utz Company anytime from and after December 30, 2019, other than to the extent accounted for on a dollar for dollar basis in the Closing Statement) and any and all Seller Taxes that are not Pre-Closing Imputed Underpayments to the extent such Seller Taxes that are not Pre-Closing Imputed Underpayments exceed $1,000,000; and

(iii)           any inaccuracy or breach of the representation and warranty set forth in Section 3.24(b) (at the Effective Date or the Closing Date), in each case other than to the extent accounted for on a dollar for dollar basis in the Closing Statement.

(b)         Notwithstanding anything in this Agreement to the contrary, except in the case of Fraud by Sellers, Sellers’ aggregate Liability to the Buyer Indemnified Parties for any and all Losses which the Buyer Indemnified Parties may suffer as a result of, arising from or relating to this Agreement shall not exceed $490,000,000.

(c)         Notwithstanding anything in this Agreement to the contrary, Losses in respect of which an Indemnitee would otherwise be entitled to indemnification shall be reduced by any amounts or benefits received (whether in the form of cash, credit or some other beneficial arrangement) in respect of such Loss, including (i) any insurance proceeds, including pursuant to the R&W Insurance Policy (net of any reasonable and documented out-of-pocket expenses incurred in obtaining such recovery, including any deductible under any insurance policy or the retention under the terms of the R&W Insurance Policy) and (ii) an amount equal to the excess, if any, of (A) the reduction in Taxes of the applicable Indemnitee (which, if the Indemnitee is the Buyer, shall include reductions realized by the Buyer directly or indirectly through the Utz Companies, and if the Indemnitee is an Utz Company, shall include reductions realized by any of the Utz Companies), without duplication, by reason of a Tax deduction, credit or other Tax benefit realized as a result of such Losses with respect to the taxable period during which such Loss is incurred or the immediately succeeding taxable period over (B) the amount of any additional Tax cost incurred by such Indemnitee (which, if the Indemnitee is the Buyer, shall include additional Tax cost incurred by the Buyer directly or indirectly through the Utz Companies, and if the Indemnitee is an Utz Company, shall include additional Tax cost incurred by any of the Utz Companies) arising from such Loss or the receipt of such indemnification payments hereunder and treating the applicable Tax item as the last item to be used (collectively the “Third-Party Recovery Proceeds”).

(d)         To the extent required by applicable Law, each Indemnitee shall take commercially reasonable efforts to mitigate any Loss in respect of which such Indemnitee is entitled to indemnification upon becoming aware of any event, state of facts, circumstances or developments which would reasonably be expected to, or does, give rise thereto. Notwithstanding anything in this Agreement to the contrary, with respect to any indemnification obligation of Sellers pursuant to Section 10.2(a)(ii) or Section 10.2(a)(iii), to the extent coverage is or would reasonably be expected to be available for such Loss, the Buyer must first seek recovery under the R&W Insurance Policy before seeking indemnification from the Sellers under, and subject to the limitations in, this Article X, and Sellers shall only be under an obligation to indemnify all or part of such Loss in accordance with (and subject to the limitations in) this Section 10.2 to the extent such Loss was not covered or partially covered under the R&W Insurance Policy (including to the extent not covered or partially covered due to the retention thereunder). The Buyer shall not be prejudiced in any way for first seeking recovery under the R&W Insurance Policy so long as the Buyer gives timely written notice to the Sellers of its right to indemnity by not later than the end of the survival period for such claim set forth in Section 10.1. Further, to avoid losing any rights under Section 10.1, the Buyer shall be permitted to make a simultaneous claim (but shall not seek recovery from Sellers to the extent coverage is or would reasonably be expected to be available under the R&W Insurance Policy for such Loss in accordance with the second preceding sentence) against the Sellers under Section 10.2(a)(ii) or Section 10.2(a)(iii) for any portion of such Loss not covered under the terms of the R&W Insurance Policy (including the retention thereunder applicable to such Loss). With respect to any indemnity claims made pursuant to Section 10.2(a)(i), the Buyer shall not be required to first seek recovery under the R&W Insurance Policy before it can proceed against Sellers.

(e)         If any Buyer Indemnified Party desires to make a claim for indemnification under this Section 10.2 (an “Indemnitee”), the Indemnitee shall promptly notify the indemnifying party (an “Indemnitor”) of the claim in writing after receiving written notice of the claim or the commencement of any Proceeding by a third party (“Third Party Claim”), describing the nature of the claim, the amount thereof (if known and quantifiable) and the basis thereof; provided that the failure to so notify an Indemnitor shall not relieve an Indemnitor of its indemnification obligations under Section 10.2, except to the extent that an Indemnitor is materially prejudiced thereby. The Parties shall cooperate in good faith to resolve any disputed claim for indemnification. Any Indemnitor shall be entitled to participate in the defense of such Third Party Claim giving rise to an Indemnitee’s claim for indemnification at such Indemnitor’s expense, and at its option (subject to the limitations set forth below) shall be entitled to assume the control of the defense thereof by providing notice to the Indemnitee within thirty (30) days of receipt of the written notice described in the first sentence of this Section 10.2(e) and in connection therewith, by irrevocably agreeing to indemnify the Indemnitee for all Losses relating to such Third Party Claim, subject to the limitations in this Section 10.2. If the Indemnitor assumes the defense of such Third Party Claim, it shall appoint counsel that is reasonably acceptable to the Indemnitee (which the Parties hereby agree that Kirkland & Ellis LLP (“K&E”) is reasonably acceptable counsel for the Buyer and Cozen O’Connor is reasonably acceptable counsel for Sellers) to be the lead counsel in connection with such defense; provided that (i) the Indemnitee shall be entitled to participate in the defense of such Third Party Claim and to employ counsel of its choice for such purpose if the fees and expenses of such separate counsel are borne entirely by the Indemnitee; (ii) the Indemnitor shall not be entitled to assume control of such defense if (A) the claim for indemnification relates to or arises in connection with any criminal Proceeding, (B) the claim primarily seeks an injunction or other equitable relief, or (C) the claim presents, under applicable standards of professional conduct, a legal conflict on any significant issue for one counsel to represent both the Indemnitee and the Indemnitor; and (iii) if an Indemnitor shall control the defense of any such Third Party Claim, such Indemnitor shall obtain the prior written consent of the Indemnitee (which shall not be unreasonably withheld, conditioned or delayed) before entering into any settlement of a Third Party Claim; provided, however, subject to the limitations set forth in this Section 10.2, an Indemnitor may settle or consent to the entry of judgment in respect of such claim without the consent of the Indemnitee, if such settlement or judgment is for (x) money damages only, (y) includes a full and unconditional release of the Indemnitee from any further Liability in respect of such claim and (z) does not contain any admission of wrongdoing on the part of the Indemnitee. The Indemnitee may take any actions reasonably necessary to defend any Third Party Claim prior to the time it receives notice from the Indemnitor that it will assume the defense of such claim. If the Indemnitor makes any payments on any Third Party Claim pursuant to this Section 10.2, the Indemnitor shall be subrogated, to the extent of such payment, to all rights and remedies of the Indemnitee to any insurance benefits or other claims of the Indemnitee with respect to such claim, including any claims against third parties.

(f)          Except in the case of Fraud by Sellers, in the event the Closing occurs, the Buyer Indemnified Parties’ sole and exclusive source of recovery for any Losses due to an inaccuracy or breach of any representation or warranty (other than Section 3.24(b)) of Sellers or the Company in this Agreement or in any certificate delivered by Sellers or the Company pursuant to this Agreement shall be recovery from the insurance coverage provided by the R&W Insurance Policy (whether or not available thereunder), including if the R&W Insurance Policy converts to a pro rata policy, and in no event will any Buyer Indemnified Party make a claim for indemnification pursuant to this Agreement, including this Section 10.2, in respect of any Loss resulting from any inaccuracy or breach of any representation or warranty (other than Section 3.24(b)) of Sellers or the Company pursuant to this Agreement or any certificate delivered by Sellers or the Company pursuant to this Agreement (except to the extent such Loss is expressly subject to indemnification pursuant to the terms of Sections 10.2(a)(i) or 10.2(a)(ii) hereof, but subject to Section 10.2(d)). Subject to the limitations set forth in this Section 10.2, to the extent Sellers are liable to any Buyer Indemnified Party for any indemnifiable Loss pursuant to Section 10.2(a), then within three (3) Business Days after the final, binding determination of such indemnifiable Loss, Sellers must pay, or cause to be paid, at the election of Sellers in their sole discretion, (i) by wire transfer of immediately available funds to the Buyer Indemnified Party, the amount of such indemnifiable Loss (after taking into account any recovery under the R&W Insurance Policy, if applicable), or (ii) by the surrender by the Sellers and cancelation, for no additional consideration, of a number of Retained Company Units and the same number of shares of Buyer Class V Voting Stock equal to the quotient of (A) the amount of such indemnifiable Loss divided by (B) the Common Stock Price as of the date of such final and binding determination pursuant to this Agreement, or any combination of the foregoing clauses (i) and (ii) in a total amount equal to the amount of such indemnifiable Loss payable hereunder.

(g)         To the extent that any Third-Party Recovery Proceeds are recovered by an Indemnitee after the related indemnification payment has been made by the Indemnitor pursuant to this Section 10.2 for the same Loss, in order to prevent any recovery of a Loss more than once in respect of the same Losses suffered, such Indemnitee shall pay over to the Indemnitor, in cash, the amounts of such Third-Party Recovery Proceeds for which indemnification payments have previously been made by the Indemnitor, promptly after such Third-Party Recovery Proceeds are actually recovered, but not more than the amount of indemnification payment made by Indemnitor pursuant to this Section 10.2. If permitted by applicable Law, in lieu of the foregoing, such Buyer Indemnified Party may subrogate or assign its rights to recover under the R&W Insurance Policy to Sellers or their designee.

(h)         Notwithstanding anything in this Agreement to the contrary, for the purposes of this Section 10.2, for purposes of (i) determining whether an inaccuracy or breach of a representation or warranty has occurred pursuant to this Agreement and (ii) calculating the amount of Losses arising from an inaccuracy or breach of any representation and warranty for which an Indemnitee is entitled to indemnification under this Agreement, each representation and warranty in this Agreement (and the corresponding sections of the Disclosure Letter) shall be read without giving effect to the terms “material,” “in all material respects,” “Material Adverse Effect” or similar phrases or qualifiers contained in such representation or warranty (as if such words or phrases were deleted from such representation and warranty).

(i)          When determining the amount of Losses for which a claim under Section 10.2(a) has been made, to the extent the Buyer Indemnified Party seeking recovery or that receives payment for such Loss is not an Utz Company, the final amount of indemnifiable Losses payable under this Agreement to such Buyer Indemnified Party shall be reduced to reflect the Buyer’s percentage ownership interest in the Company as of the date of the final and binding determination of such Loss pursuant to this Agreement; provided that no such reduction shall be made if such Buyer Indemnified Party suffers such Loss directly.

(j)          In no event shall any Indemnitee be entitled to duplicate compensation with respect to the same Losses under more than one provision of this Agreement and the Ancillary Agreements.

(k)         Except in the case of Fraud, in the event the Closing occurs, the sole and exclusive remedy for any and all claims against any Party arising under, out of, related to or in connection with this Agreement, shall be the rights of indemnification set forth in this Section 10.2 and, with respect to any covenant or agreement, specific performance or other equitable remedies, and no Person will have any other entitlement, remedy or recourse, whether in Contract, tort or otherwise against any Party (other than specific performance, injunction or other equitable relief pursuant to the terms of Section 12.10), it being agreed by the Parties that all of such other remedies, entitlements and recourse are waived and released by the Parties to the fullest extent permitted by Law. The provisions of this Section 10.2 and the limited remedies provided in Section 10.2 were specifically bargained for by the Parties and were taken into account by them in arriving at the terms and conditions of this Agreement. No Party shall be entitled to a rescission of this Agreement or any further indemnification or rights or claims of any nature whatsoever, all of which are hereby waived by the Parties to the fullest extent permitted under applicable Law.

(l)          All indemnification payments under this Section 10.2 shall be deemed adjustments to the Aggregate Consideration for all purposes, including for income Tax purposes, to the extent permitted by applicable Law.

(m)        In connection with the Buyer making an indemnification claim against the Sellers pursuant to this Article X following the Closing, any determination to be made by the Buyer shall be made by the Audit Committee of the Buyer Board.

(n)         In the event of any indemnification claim by the Buyer against the Sellers under this Article X, the non-prevailing Party (Sellers or Buyer, as applicable) shall be required to reimburse the prevailing Party (Buyer or Sellers, as applicable) for its attorneys’ fees, costs and expenses in connection with such indemnification claim, to the extent not otherwise obligated to be reimbursed.

Article XI
TERMINATION

Section 11.1      Termination. This Agreement may be terminated and the transactions contemplated by this Agreement abandoned at any time prior to the Closing only as follows:

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

(b)          by either Sellers or the Buyer by written notice to the other Party or Parties if any applicable Law is in effect making the consummation of the transactions contemplated by this Agreement illegal or any final, non-appealable Order is in effect permanently preventing the consummation of the transactions contemplated by this Agreement; provided, however, that the right to terminate this Agreement pursuant to this Section 11.1(b) shall not be available to any Party whose breach of any representation, warranty, covenant or agreement of this Agreement results in or causes such final, non-appealable Order or other action (including, with respect to Sellers, any breach by the Company);

(c)          by either Sellers or the Buyer by written notice to the other Party or Parties if the consummation of the transactions contemplated by this Agreement shall not have occurred on or before October 11, 2020 (the “Outside Date”); provided that if the Buyer Shareholders approve an extension of the date required to consummate a Business Combination in accordance with the Buyer Memorandum and Articles, the Outside Date shall automatically be extended to the earlier of (i) such extension date, and (ii) the six month anniversary of the Effective Date; provided, further, that the right to terminate this Agreement under this Section 11.1(c) shall not be available to any Party then in material breach of its representations, warranties, covenants or agreements under this Agreement (including, with respect to Sellers, any breach by the Company);

(d)          by Sellers, if Buyer breaches in any material respect any of its representations or warranties contained in this Agreement or breaches or fails to perform in any material respect any of its covenants contained in this Agreement, which breach or failure to perform (i) would render a condition precedent to Sellers’ obligations to consummate the transactions set forth in Section 2.5(a) or Section 2.5(c) of this Agreement not capable of being satisfied, and (ii) after the giving of written notice of such breach or failure to perform to the Buyer by Sellers, cannot be cured or has not been cured by the later of the Outside Date and thirty (30) Business Days after receipt of such written notice (in which case the Outside Date shall automatically be extended until the end of such thirty (30) Business Day period, but in no event on more than one occasion) and Sellers or the Company have not waived in writing such breach or failure; provided, however, that the right to terminate this Agreement under this Section 11.1(d) shall not be available to Sellers if the Company or either Seller is then in material breach of any representation, warranty, covenant or agreement contained in this Agreement; and

(e)          by the Buyer, if the Company or either Seller breaches in any material respect any of their representations or warranties contained in this Agreement or the Company or either Seller breaches or fails to perform in any material respect any of its covenants contained in this Agreement, which breach or failure to perform (i) would render a condition precedent to the Buyer’s obligations to consummate the transactions set forth in Section 2.5(a) or Section 2.5(b) of this Agreement not capable of being satisfied, and (ii) after the giving of written notice of such breach or failure to perform to Sellers by the Buyer, cannot be cured or has not been cured by the later of the Outside Date and thirty (30) Business Days after the delivery of such written notice (in which case the Outside Date shall automatically be extended until the end of such thirty (30) Business Day period, but in no event on more than one occasion) and the Buyer has not waived in writing such breach or failure; provided, however, that the right to terminate this Agreement under this Section 11.1(e) shall not be available to the Buyer if the Buyer is then in material breach of any representation, warranty, covenant or agreement contained in this Agreement.

Section 11.2      Effect of Termination. In the event of the termination of this Agreement pursuant to Section 11.1, this Agreement shall immediately become null and void, without any Liability on the part of any Party or any other Person, and all rights and obligations of each Party shall cease; provided that (a) the Confidentiality Agreement and the agreements contained in Section 7.10(a), Section 7.11, this Section 11.2 and Article XII of this Agreement survive any termination of this Agreement and remain in full force and effect and (b) no such termination shall relieve any Party from any Liability arising out of or incurred as a result of its Fraud or its willful and material breach of this Agreement.

Article XII
MISCELLANEOUS

Section 12.1      Amendment and Waiver. No amendment of any provision of this Agreement shall be valid unless the same shall be in writing and signed by the Buyer, the Company, and Sellers. No waiver of any provision or condition of this Agreement shall be valid unless the same shall be in writing and signed by the Party against which such waiver is to be enforced. No waiver by any Party of any default, breach of representation or warranty or breach of covenant hereunder, whether intentional or not, shall be deemed to extend to any other, prior or subsequent default or breach or affect in any way any rights arising by virtue of any other, prior or subsequent such occurrence.

Section 12.2      Notices. All notices, demands and other communications to be given or delivered under this Agreement shall be in writing and shall be deemed to have been given (a) when personally delivered (or, if delivery is refused, upon presentment) or received by email (with confirmation of transmission) prior to 5:00 p.m. eastern time on a Business Day and, if otherwise, on the next Business Day, (b) one (1) Business Day following sending by reputable overnight express courier (charges prepaid) or (c) three (3) days following mailing by certified or registered mail, postage prepaid and return receipt requested. Unless another address is specified in writing pursuant to the provisions of this Section 12.2, notices, demands and other communications to the Company, the Buyer, and Sellers shall be sent to the addresses indicated below:

Section 12.3      Assignment. This Agreement and all of the provisions hereof (including the first paragraph of (a) Sections 6.1(a) and 6.1(b) of the Company and Sellers’ Disclosure Letter, and (b) Section 6.2(a) of the Buyer Disclosure Letter) shall be binding upon and inure to the benefit of the Parties and their respective successors and assigns; provided that neither this Agreement nor any of the rights, interests or obligations hereunder may be assigned or delegated by any Party (including by operation of Law) without the prior written consent of the other Parties. Any purported assignment or delegation not permitted under this Section 12.3 shall be null and void.

Section 12.4      Severability. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable Law, but if any provision of this Agreement or the application of any such provision to any Person or circumstance shall be held to be prohibited by or invalid, illegal or unenforceable under applicable Law in any respect by a court of competent jurisdiction, such provision shall be ineffective only to the extent of such prohibition or invalidity, illegality or unenforceability, without invalidating the remainder of such provision or the remaining provisions of this Agreement. Furthermore, in lieu of such illegal, invalid or unenforceable provision, there shall be added automatically as a part of this Agreement a legal, valid and enforceable provision as similar in terms to such illegal, invalid, or unenforceable provision as may be possible.

Section 12.5      Interpretation. The headings and captions used in this Agreement and the table of contents to this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. Any capitalized terms used in any Disclosure Letter, Schedule or Exhibit attached hereto or delivered at the same time and not otherwise defined therein shall have the meanings set forth in this Agreement. The use of the word “including” herein shall mean “including without limitation.” The words “hereof,” “herein,” and “hereunder” and words of similar import, when used in this Agreement, shall refer to this Agreement as a whole and not to any particular provision of this Agreement. References herein to a specific Section, Subsection, Clause, Recital, Section of a Disclosure Letter, Schedule or Exhibit shall refer, respectively, to Sections, Subsections, Clauses, Recitals, Sections of a Disclosure Letter, Schedules or Exhibits of this Agreement. Terms defined in the singular shall have a comparable meaning when used in the plural, and vice versa. References herein to any gender shall include each other gender. The word “or” shall not be exclusive unless the context clearly requires the selection of one (1) (but not more than one (1)) of a number of items. References to “written” or “in writing” include in electronic form. References herein to any Person shall include such Person’s heirs, executors, personal representatives, administrators, successors and permitted assigns; provided, however, that nothing contained in this Section 12.5 is intended to authorize any assignment or transfer not otherwise permitted by this Agreement. References herein to a Person in a particular capacity or capacities shall exclude such Person in any other capacity. Any reference to “days” shall mean calendar days unless Business Days are specified; provided that if any action is required to be done or taken on a day that is not a Business Day, then such action shall be required to be done or taken not on such day but on the first succeeding Business Day thereafter. References herein to any Contract (including this Agreement) mean such Contract as amended, restated, supplemented or modified from time to time in accordance with the terms thereof; provided that with respect to any Contract listed (or required to be listed) on the Disclosure Letters, all material amendments and modifications thereto (but excluding any purchase orders, work orders or statements of work) must also be listed on the appropriate section of the applicable Disclosure Letter. With respect to the determination of any period of time, the word “from” means “from and including” and the words “to” and “until” each means “to but excluding.” References herein to any Law shall be deemed also to refer to such Law, as amended, and all rules and regulations promulgated thereunder. If any Party has breached any representation, warranty, covenant or agreement contained in this Agreement in any respect, the fact that there exists another representation, warranty, covenant or agreement relating to the same subject matter (regardless of the relative levels of specificity) which the Party has not breached shall not detract from or mitigate the fact that the Party is in breach of the first representation, warranty, covenant or agreement. The word “extent” in the phrase “to the extent” (or similar phrases) shall mean the degree to which a subject or other thing extends, and such phrase shall not mean simply “if.” An accounting term not otherwise defined in this Agreement has the meaning assigned to it in accordance with GAAP. Except where otherwise provided, all amounts in this Agreement are stated and shall be paid in United States dollars. The Parties and their respective counsel have reviewed and negotiated this Agreement as the joint agreement and understanding of the Parties, and the language used in this Agreement shall be deemed to be the language chosen by the Parties to express their mutual intent, and no rule of strict construction shall be applied against any Person. Any information or materials shall be deemed provided, made available or delivered to the Buyer if such information or materials have been uploaded to the electronic data room maintained by Sellers and their financial advisors on the Firmex online-platform for purposes of the transactions contemplated by this Agreement (the “Data Room”) or otherwise provided to the Buyer’s representatives (including counsel) via electronic mail, in each case, prior to the Effective Date. The content of the Data Room as of the Effective Date will be stored on six (6) identical encrypted USB devices, and Sellers will cause three (3) such devices to be sent to the Buyer within thirty days of the Effective Date.

Section 12.6      Entire Agreement. This Agreement, the Ancillary Agreements and the Confidentiality Agreement (together with the Disclosure Letters and Exhibits to this Agreement) contain the entire agreement and understanding among the Parties with respect to the subject matter hereof and thereof and supersede all prior and contemporaneous agreements, understandings and discussions (including that certain non-binding letter of intent among the Buyer, the Sponsor and the Sellers dated February 28, 2020 (the “LOI”)), whether written or oral, relating to such subject matter in any way. The Parties have voluntarily agreed to define their rights and Liabilities with respect to the transactions contemplated by this Agreement exclusively pursuant to the express terms and provisions of this Agreement, and the Parties disclaim that they are owed any duties or are entitled to any remedies not set forth in this Agreement. Furthermore, this Agreement embodies the justifiable expectations of sophisticated parties derived from arm’s-length negotiations and no Person has any special relationship with another Person that would justify any expectation beyond that of an ordinary buyer and an ordinary seller in an arm’s-length transaction.

Section 12.7      Counterparts; Electronic Delivery. This Agreement, the Ancillary Agreements and the other agreements, certificates, instruments and documents delivered pursuant to this Agreement may be executed and delivered in one or more counterparts and by fax, email or other electronic transmission, each of which shall be deemed an original and all of which shall be considered one and the same agreement. No Party shall raise the use of a fax machine or email to deliver a signature or the fact that any signature or agreement or instrument was transmitted or communicated through the use of a fax machine or email as a defense to the formation or enforceability of a Contract and each Party forever waives any such defense.

Section 12.8      Governing Law; Waiver of Jury Trial; Jurisdiction. The Law of the State of Delaware shall govern (a) all claims or matters related to or arising from this Agreement (including any tort or non-contractual claims) and (b) any questions concerning the construction, interpretation, validity and enforceability of this Agreement, and the performance of the obligations imposed by this Agreement, in each case without giving effect to any choice-of-law or conflict-of-law rules or provisions (whether of the State of Delaware or any other jurisdiction) that would cause the application of the Law of any jurisdiction other than the State of Delaware. Each party to this Agreement hereby IRREVOCABLY waives all rights to trial by jury in any Proceeding brought to resolve any dispute between or among any of the parties (whether arising in contract, tort or otherwise) arising out of, connected with, related or incidental to this Agreement, the transactions contemplated BY THIS AGREEMENT and/or the relationships established among the parties under THIS AGREEMENT. THE PARTIES HERETO FURTHER WARRANT AND REPRESENT THAT EACH HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL, AND THAT EACH KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL. Each of the Parties submits to the exclusive jurisdiction of first, the Chancery Court of the State of Delaware or if such court declines jurisdiction, then to the Federal District Court for the District of Delaware, in any Proceeding arising out of or relating to this Agreement, agrees that all claims in respect of the Proceeding shall be heard and determined in any such court and agrees not to bring any Proceeding arising out of or relating to this Agreement in any other courts. Nothing in this Section 12.8, however, shall affect the right of any Party to serve legal process in any other manner permitted by Law or at equity. Each Party agrees that a final judgment in any Proceeding so brought shall be conclusive and may be enforced by suit on the judgment or in any other manner provided by Law or at equity.

Section 12.9      Trust Account Waiver. Each of the Company and Sellers acknowledge that the Buyer has established the Trust Account for the benefit of its public Buyer Shareholders, which holds proceeds of its initial public offering. For and in consideration of the Buyer entering into this Agreement and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, each of the Company and Sellers, for itself and the Affiliates it has the authority to bind, hereby agrees it does not now and shall not at any time hereafter have any right, title, interest or claim of any kind in or to any assets in the Trust Account (or distributions therefrom to (i) the public Buyer Shareholders upon the redemption of their shares and (ii) the underwriters of Buyer’s initial public offering in respect of their deferred underwriting commissions held in the Trust Account, in each case as set forth in the Trust Agreement (collectively, the “Trust Distributions”)), and hereby waives any claims it has or may have at any time solely against the Trust Account (including the Trust Distributions) as a result of, or arising out of, any discussions, contracts or agreements (including this Agreement) among the Buyer, Sellers and the Company and will not seek recourse against the Trust Account (including the Trust Distributions) for any reason whatsoever. The Sellers agree and acknowledge that such irrevocable waiver is material to this Agreement and specifically relied upon by the Buyer and the Sponsor to induce Buyer to enter in this Agreement, and the Sellers further intend and understand such waiver to be valid, binding and enforceable against the Sellers and each of their respective Affiliates that they have the authority to bind under applicable Law. To the extent any Seller or any of its respective Affiliates that such Seller has the authority to bind commences any action or proceeding against the Buyer or any of its Affiliates based upon, in connection with, relating to or arising out of any matter relating to the Buyer or its representatives, which Proceeding seeks, in whole or in part, monetary relief against the Buyer or its representatives, the Sellers hereby acknowledge and agree that the Sellers’ and such Affiliates’ sole remedy shall be against assets of the Buyer not in the Trust Account and that such claim shall not permit the Sellers or such Affiliates (or any Person claiming on any of their behalves) to have any claim against the Trust Account (including the Trust Distributions) or any amounts contained in the Trust Account while in the Trust Account.

Section 12.10    Specific Performance. Each Party acknowledges that the rights of each Party to consummate the transactions contemplated by this Agreement are unique and recognize and affirm that in the event any of the provisions of this Agreement are not performed in accordance with their specific terms or otherwise are breached, money damages would be inadequate (and therefore the non-breaching Party would have no adequate remedy at Law) and the non-breaching Party would be irreparably damaged. Accordingly, each Party agrees that each other Party shall be entitled to specific performance, an injunction or other equitable relief (without posting of bond or other security or needing to prove irreparable harm) to prevent breaches of the provisions of this Agreement and to enforce specifically this Agreement and the terms and provisions hereof in any Proceeding, in addition to any other remedy to which such Person may be entitled. Each Party agrees that it will not oppose the granting of specific performance and other equitable relief on the basis that the other Parties have an adequate remedy at Law or that an award of specific performance is not an appropriate remedy for any reason at Law or equity. The Parties acknowledge and agree that any Party seeking an injunction to prevent breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement in accordance with this Section 12.10 shall not be required to provide any bond or other security in connection with any such injunction.

Section 12.11    No Third-Party Beneficiaries. This Agreement is for the sole benefit of the Parties and their permitted assigns and nothing herein expressed or implied shall give or be construed to give any Person, other than the Parties and such permitted assigns, any legal or equitable rights hereunder (other than in respect of the Buyer Indemnified Parties, the Utz Indemnified Persons and Non-Party Affiliates, each of whom is an express third-party beneficiary hereunder to the specific provisions in which such Person is referenced and entitled to enforce only such obligations hereunder).

Section 12.12     Disclosure Letters and Exhibits. The Disclosure Letters and Exhibits attached hereto or referred to in this Agreement are (a) each hereby incorporated in and made a part of this Agreement as if set forth in full herein and (b) qualified in their entirety by reference to specific provisions of this Agreement. Any fact or item disclosed in any Section of a Disclosure Letter shall be deemed disclosed in each other Section of the applicable Disclosure Letter to which such fact or item may apply so long as (x) such other Section is referenced by applicable cross-reference or (y) it is reasonably apparent on the face of such disclosure that such disclosure is applicable to such other Section or portion of the Disclosure Letter. The headings contained in the Disclosure Letters are for convenience of reference only and shall not be deemed to modify or influence the interpretation of the information contained in the Disclosure Letters or this Agreement. The Disclosure Letters are not intended to constitute, and shall not be construed as, an admission or indication that any such fact or item is required to be disclosed. The Disclosure Letters shall not be deemed to expand in any way the scope or effect of any representations, warranties or covenants described in this Agreement. Any fact or item, including the specification of any dollar amount, disclosed in the Disclosure Letters shall not by reason only of such inclusion be deemed to be material, to establish any standard of materiality or to define further the meaning of such terms for purposes of this Agreement, and matters reflected in the Disclosure Letters are not necessarily limited to matters required by this Agreement to be reflected herein and may be included solely for information purposes; and no Party shall use the fact of the setting of the amounts or the fact of the inclusion of any item in the Disclosure Letters in any dispute or controversy between the Parties as to whether any obligation, item or matter not described or included in the Disclosure Letters is or is not required to be disclosed (including whether the amount or items are required to be disclosed as material or threatened) or is within or outside of the Ordinary Course of Business. No disclosure in the Disclosure Letters relating to any possible breach or violation of any Contract, Law or Order shall be construed as an admission or indication that any such breach or violation exists or has actually occurred. Moreover, in disclosing the information in the Disclosure Letters, Sellers do not waive any attorney-client privilege associated with such information or any protection afforded by the work-product doctrine with respect to any of the matters disclosed or discussed therein. The information contained in the Disclosure Letters shall be kept strictly confidential by the Parties and no third party may rely on any information disclosed or set forth therein.

Section 12.13     No Recourse. Notwithstanding anything that may be expressed or implied in this Agreement (except in the case of the immediately succeeding sentence) or any document, agreement, or instrument delivered contemporaneously herewith, and notwithstanding the fact that any Party may be a partnership or limited liability company, each Party hereto, by its acceptance of the benefits of this Agreement, covenants, agrees and acknowledges that no Persons other than the Parties shall have any obligation hereunder and that it has no rights of recovery hereunder against, and no recourse hereunder or under any documents, agreements, or instruments delivered contemporaneously herewith or in respect of any oral representations made or alleged to be made in connection herewith or therewith shall be had against, any former, current or future director, officer, agent, Affiliate, manager, assignee, incorporator, controlling Person, fiduciary, representative or employee of any Party (or any of their successors or permitted assignees), against any former, current, or future general or limited partner, manager, stockholder or member of any Party (or any of their successors or permitted assignees) or any Affiliate thereof or against any former, current or future director, officer, agent, employee, Affiliate, manager, assignee, incorporator, controlling Person, fiduciary, representative, general or limited partner, stockholder, manager or member of any of the foregoing, but in each case not including the Parties (each, but excluding for the avoidance of doubt, the Parties, a “Non-Party Affiliate”), whether by or through attempted piercing of the corporate veil, by or through a claim (whether in tort, Contract or otherwise) by or on behalf of such Party against the Non-Party Affiliates, by the enforcement of any assessment or by any Proceeding, or by virtue of any statute, regulation or other applicable Law, or otherwise; it being agreed and acknowledged that no personal Liability whatsoever shall attach to, be imposed on, or otherwise be incurred by any Non-Party Affiliate, as such, for any obligations of the applicable Party under this Agreement or the transactions contemplated by this Agreement, under any documents or instruments delivered contemporaneously herewith, in respect of any oral representations made or alleged to be made in connection herewith or therewith, or for any claim (whether in tort, Contract or otherwise) based on, in respect of, or by reason of, such obligations or their creation. Notwithstanding the forgoing, a Non-Party Affiliate may have obligations under any documents, agreements, or instruments delivered contemporaneously herewith or otherwise required by this Agreement if such Non-Party Affiliate is party to such document, agreement or instrument. Except to the extent otherwise set forth in, and subject in all cases to the terms and conditions of and limitations herein, this Agreement may only be enforced against, and any claim or cause of action of any kind based upon, arising out of, or related to this Agreement, or the negotiation, execution or performance of this Agreement, may only be brought against the entities that are named as Parties hereto and then only with respect to the specific obligations set forth herein with respect to such Party. Each Non-Party Affiliate is intended as a third-party beneficiary of this Section 12.13. Notwithstanding any provision of this Agreement to the contrary, in no event shall Sellers, the Utz Companies or any of their respective Affiliates or representatives (a) seek to enforce this Agreement against, make any claims for breach of this Agreement against, or seek to recover monetary damages from, any Equity Financing Source in connection with this Agreement or (b) seek to enforce the commitments against, make any claims for breach of any Subscription Agreement against, or seek to recover monetary damages from, or otherwise sue, any Equity Financing Source for the Equity Financing in connection with (i) this Agreement or (ii) the obligations of the Equity Financing Sources for the Equity Financing under the applicable Subscription Agreement. Nothing in this Section 12.13 shall in any way limit or qualify the rights and obligations of the Equity Financing Sources for the applicable Equity Financing, the Buyer and the other parties to the Subscription Agreement to each other thereunder or in connection therewith.

Section 12.14    Legal Representation.

(a)         Sellers.

(i)            Each Party hereby agrees, on its own behalf and on behalf of its directors, managers, officers, owners, employees and Affiliates (including the Sponsor) and each of their successors and assigns (all such parties, the “Waiving Parties”), that Cozen O’Connor (or any successor thereto) (“Cozen”) may represent Sellers or any direct or indirect director, manager, officer, owner, employee or Affiliate thereof or of any Utz Company, in connection with any dispute, claim, Proceeding or Liability arising out of or relating to this Agreement, any Ancillary Agreement or the transactions contemplated hereby or thereby (any such representation, the “Seller Post-Closing Representation”) notwithstanding its representation (or any continued representation) of the Sellers and the Utz Companies in connection with the transactions contemplated by this Agreement, and each of the Buyer and the Company on behalf of itself and the Waiving Parties hereby consents thereto and irrevocably waives (and will not assert) any conflict of interest or any objection arising therefrom or relating thereto, even though the interests of the Seller Post-Closing Representation may be directly adverse to the Waiving Parties.

(ii)            Each of the Buyer and the Company acknowledges that the foregoing provision applies whether or not Cozen provides legal services to the Utz Companies after the Closing Date. Each of the Buyer and the Company, for itself and the Waiving Parties, hereby irrevocably acknowledges and agrees that all communications among Cozen, the Utz Companies, Sellers and/or any director, manager, officer, owner, employee or representative of any of the foregoing made in connection with the negotiation, preparation, execution, delivery and performance under, or any dispute, claim, Proceeding or Liability arising out of or relating to, this Agreement, any Ancillary Agreement or the transactions contemplated hereby or thereby or any matter relating to any of the foregoing, are privileged communications and the attorney-client privilege and the expectation of client confidence belongs solely to Sellers and is exclusively controlled by Sellers and shall not pass to or be claimed by Buyer, the Sponsor or any of the Utz Companies. From and after the Closing, none of the Buyer, the Sponsor, any Utz Company or any Person purporting to act on behalf of or through the Buyer, the Sponsor, any Utz Company or any of the Waiving Parties, will seek to obtain the same by any process. From and after the Closing, each of the Buyer and the Company, on behalf of itself and the Waiving Parties, irrevocably waives and will not assert any attorney-client privilege with respect to any communication among Cozen, any Utz Company, Sellers and/or any director, manager, officer, owner, employee or representative of any of the foregoing occurring prior to the Closing in connection with any Seller Post-Closing Representation. Notwithstanding the foregoing, in the event that a dispute arises between the Buyer, the Sponsor or any Utz Company, on the one hand, and a third party other than Sellers, on the other hand, the Buyer, the Sponsor and any Utz Company may assert the attorney-client privilege to prevent disclosure of confidential communications to such third party; provided, however, that neither the Buyer nor the Sponsor nor any Utz Company may waive such privilege without the prior written consent of Sellers.

(b)         Buyer.

(i)            Each Waiving Party hereby agrees that K&E (or any successor thereto) may represent Buyer or any direct or indirect director, manager, officer, owner, employee or Affiliate thereof (including the Utz Companies), in connection with any dispute, claim, Proceeding or Liability arising out of or relating to this Agreement, any Ancillary Agreement or the transactions contemplated hereby or thereby (any such representation, the “Buyer Post-Closing Representation”) notwithstanding its representation (or any continued representation) of the Buyer in connection with the transactions contemplated by this Agreement, and Sellers on behalf of themselves and the Waiving Parties hereby consent thereto and irrevocably waive (and will not assert) any conflict of interest or any objection arising therefrom or relating thereto, even though the interests of the Buyer Post-Closing Representation may be directly adverse to the Waiving Parties.

(ii)            Each of the Sellers acknowledges that the foregoing provision applies whether or not K&E provides legal services to the Utz Companies after the Closing Date. Each Seller, for itself and the Waiving Parties, hereby irrevocably acknowledges and agrees that all communications among K&E, the Buyer, the Sponsor and/or any director, manager, officer, owner, employee or representative of any of the foregoing made in connection with the negotiation, preparation, execution, delivery and performance under, or any dispute, claim, Proceeding or Liability arising out of or relating to, this Agreement, any Ancillary Agreement or the transactions contemplated hereby or thereby or any matter relating to any of the foregoing, are privileged communications and the attorney-client privilege and the expectation of client confidence belongs solely to the Buyer and is exclusively controlled by the Buyer and shall not pass to or be claimed by Sellers or any of the Utz Companies. From and after the Closing, neither Seller nor any Person purporting to act on behalf of or through either Seller or any of the Waiving Parties, will seek to obtain the same by any process. From and after the Closing, each Seller, on behalf of itself and the Waiving Parties, irrevocably waives and will not assert any attorney-client privilege with respect to any communication among K&E, the Buyer, the Sponsor and/or any director, manager, officer, owner, employee or representative of any of the foregoing occurring prior to the Closing in connection with any Buyer Post-Closing Representation. Notwithstanding the foregoing, in the event that a dispute arises between the Sellers, on the one hand, and a third party other than the Buyer or the Sponsor, on the other hand, the Sellers may assert the attorney-client privilege to prevent disclosure of confidential communications to such third party; provided, however, that neither Seller may waive such privilege without the prior written consent of the Buyer.

Section 12.15    Equitable Adjustments. If, during the Pre-Closing Period, the outstanding shares of Buyer Capital Stock shall have been changed into a different number of shares or a different class, with the prior written consent of the Sellers to the extent required by this Agreement, by reason of any stock dividend, share capitalization, subdivision, reclassification, recapitalization, split, combination, consolidation or exchange of shares, or any similar event shall have occurred (including any of the foregoing in connection with the Domestication), then any number or amount contained in this Agreement which is based upon the number of shares of Buyer Capital Stock will be appropriately adjusted to provide to Sellers and the Buyer Shareholders the same economic effect as contemplated by this Agreement prior to such event.

* * * * *

IN WITNESS WHEREOF, each of the undersigned has caused this Business Combination Agreement to be duly executed as of the date first above written.

EXHIBIT A

BUYER CERTIFICATE OF INCORPORATION

(see attached)

CERTIFICATE OF INCORPORATION
OF
Utz Brands, Inc.

Article I

Section 1.1.     Name. The name of the Corporation is Utz Brands, Inc. (the “Corporation”).

Article II

Section 2.1.     Address. The registered office of the Corporation in the State of Delaware is [9 E. Loockerman Street, Suite 311, Dover, Kent County, Delaware 19901]; and the name of the Corporation’s registered agent at such address is [Registered Agent Solutions, Inc.].

Article III

Section 3.1.     Purpose. The purpose of the Corporation is to engage in any lawful act or activity for which corporations may now or hereafter be organized under the General Corporation Law of the State of Delaware (the “DGCL”). The Corporation is being incorporated in connection with the domestication of Collier Creek Holdings, a Cayman Islands exempted company limited by shares (“Collier Creek Cayman”), to a Delaware corporation (the “Domestication”), and this Certificate of Incorporation is being filed simultaneously with the Certificate of Corporate Domestication of Collier Creek Cayman (the “Certificate of Domestication”).

Article IV

Section 4.1.     Capitalization. The total number of shares of all classes of stock that the Corporation is authorized to issue is [ ● ] shares, consisting of (i) [ ● ] shares of Preferred Stock, par value $0.0001 per share (“Preferred Stock”), (ii) [ ● ] shares of Class A Common Stock, par value $0.0001 per share (“Class A Common Stock”), (iii) 2,000,000 shares of Class B Non-Voting Common Stock, par value $0.0001 per share (“Class B Common Stock”), which shall be divided into 1,000,000 shares of Series B-1 Common Stock, par value $0.0001 per share (“Series B-1 Common Stock”) and 1,000,000 shares of Series B-2 Common Stock, par value $0.0001 per share (“Series B-2 Common Stock”) and (v) [ ● ] shares of Class V Common Stock, par value $0.0001 per share (“Class V Common Stock” and, together with the Class A Common Stock, and the Class B Common Stock (the “Common Stock”). The number of authorized shares of any of the Class A Common Stock, Class B Common Stock, Class V Common Stock, or Preferred Stock may be increased or decreased (but not below the number of shares of such class or series then outstanding) by the affirmative vote of the holders of a majority in voting power of the stock of the Corporation entitled to vote thereon irrespective of the provisions of Section 242(b)(2) of the DGCL (or any successor provision thereto), and no vote of the holders of any of the Class A Common Stock, the Class B Common Stock, the Class V Common Stock or Preferred Stock voting separately as a class shall be required therefor, unless a vote of any such holder is required pursuant to this Certificate of Incorporation or any certificate of designations relating to any series of Preferred Stock. Upon the filing of the Certificate of Domestication and this Certificate of Incorporation, which shall occur on the closing date (such date, the “Closing Date”) of the transactions contemplated by that certain Business Combination Agreement, dated as of June [●], 2020, by and among Collier Creek Cayman, Utz Brands Holdings, LLC (“LLC”), Series U of UM Partners, LLC (“Series U”) and Series R of UM Partners, LLC (“Series R” and together with Series U, the “Sellers”), each share of capital stock of Collier Creek Cayman issued and outstanding immediately prior to the Closing (as defined in the Business Combination Agreement) will for all purposes be deemed to be one issued and outstanding, fully paid and nonassessable share of Class A Common Stock, without any action required on the part of the Corporation or the holders thereof; provided, however, in accordance with the terms of the Side Letter (as defined below), an aggregate 1,000,000 Founder Shares (as defined therein) shall automatically convert into Series B-1 Common Stock and an aggregate 1,000,000 Founder Shares shall automatically convert into Series B-2 Common Stock.

Section 4.2.     Preferred Stock.

(A)          The Board of Directors of the Corporation (the “Board”) is hereby expressly authorized, subject to any limitations prescribed by the DGCL, by resolution or resolutions, at any time and from time to time, to provide, out of the unissued shares of Preferred Stock, for one or more series of Preferred Stock and, with respect to each such series, to fix the number of shares constituting such series and the designation of such series, the voting powers (if any) of the shares of such series, and the powers, preferences and relative, participating, optional or other special rights, if any, and any qualifications, limitations or restrictions thereof, of the shares of such series and to cause to be filed with the Secretary of State of the State of Delaware a certificate of designations with respect thereto. The powers, preferences and relative, participating, optional and other special rights of each series of Preferred Stock, and the qualifications, limitations or restrictions thereof, if any, may differ from those of any and all other series at any time outstanding.

(B)          Except as otherwise required by law, holders of a series of Preferred Stock, as such, shall be entitled only to such voting rights, if any, as shall expressly be granted thereto by this Certificate of Incorporation (including any certificate of designations relating to such series).

Section 4.3.     Common Stock.

(A)         Voting Rights.

(1)     Except as otherwise provided in this Certificate of Incorporation or as provided by law, each holder of Class A Common Stock, as such, shall be entitled to one vote for each share of Class A Common Stock held of record by such holder on all matters on which stockholders generally are entitled to vote; provided, however, that to the fullest extent permitted by law, holders of Class A Common Stock, as such, shall have no voting power with respect to, and shall not be entitled to vote on, any amendment to this Certificate of Incorporation (including any certificate of designations relating to any series of Preferred Stock) that relates solely to the terms of one or more outstanding series of Preferred Stock if the holders of such affected series are entitled, either separately or together with the holders of one or more other such series, to vote thereon pursuant to this Certificate of Incorporation (including any certificate of designations relating to any series of Preferred Stock) or pursuant to the DGCL.

(2)     Except as required by law, no holder of Class B Common Stock, as such, shall be entitled to any voting rights with respect to Class B Common Stock.

(3)     Except as otherwise provided in this Certificate of Incorporation or as provided by law, each holder of record of Class V Common Stock, as such, shall be entitled to one vote for each share of Class V Common Stock held of record by such holder on all matters on which stockholders generally or holders of Class V Common Stock as a separate class are entitled to vote (whether voting separately as a class or together with one or more classes of the Corporation’s capital stock); provided, however, to the fullest extent permitted by law, holders of Class V Common Stock, as such, shall have no voting power pursuant to this Certificate of Incorporation with respect to, and shall not be entitled to vote on, any amendment to this Certificate of Incorporation (including any certificate of designations relating to any series of Preferred Stock) that relates solely to the terms of one or more outstanding series of Preferred Stock if the holders of such affected series are entitled, either separately or together with the holders of one or more other such series, to vote thereon pursuant to this Certificate of Incorporation (including any certificate of designations relating to any series of Preferred Stock) or pursuant to the DGCL.

(4)     Except as otherwise provided in this Certificate of Incorporation or required by applicable law, the holders of Common Stock having the right to vote in respect of such Common Stock shall vote together as a single class (or, if the holders of one or more series of Preferred Stock are entitled to vote together with the holders of Common Stock having the right to vote in respect of such Common Stock, as a single class with the holders of such other series of Preferred Stock) on all matters submitted to a vote of the stockholders having voting rights generally.

(B)          Dividends and Distributions.

(1)     Class A Common Stock and Class B Common Stock. Subject to applicable law and the rights, if any, of the holders of any outstanding series of Preferred Stock or any class or series of stock having a preference over or the right to participate with the Class A Common Stock and Class B Common Stock with respect to the payment of dividends and other distributions in cash, stock of any corporation or property of the Corporation, the holders of Class A Common Stock and Class B Common Stock shall be entitled to receive ratably, taken together as a single class, such dividends and other distributions as may from time to time be declared by the Board in its discretion out of the assets of the Corporation that are by law available therefor at such times and in such amounts as the Board in its discretion shall determine. Notwithstanding anything to the contrary contained in this Certificate of Incorporation, the payment of any dividend or other distribution so declared with respect to the Class B Common Stock shall be contingent upon, and no dividend or other distribution shall be paid unless and until, the occurrence of a Conversion Event (as such term is defined in in that certain letter agreement, dated as of June [●], 2020, by and among the Corporation, Collier Creek Partners, LLC (the “CCH Sponsor”) and the other persons party thereto (as the same may be amended, modified or supplemented from time to time in accordance with the terms of such letter, the “Side Letter”)), if any, in respect of any such share of Class B Common Stock and, upon declaration of any dividend or other distribution, the record date for such dividend or other distribution with respect to the Class B Common Stock (but, for the avoidance of doubt, not the Class A Common Stock) shall be one day before the Conversion Date (as defined in the Side Letter), and the Board shall so set the record date upon such declaration. Such dividends or other distributions with respect to the Class B Common Stock shall be paid to the holders of the Class B Common Stock on the Conversion Date in accordance with the Side Letter.

(2)    Class V Common Stock. Dividends and other distributions shall not be declared or paid on the Class V Common Stock.

(C)          Liquidation, Dissolution or Winding Up. In the event of any voluntary or involuntary liquidation, dissolution or winding up of the affairs of the Corporation, after payment or provision for payment of the debts and other liabilities of the Corporation and of the preferential and other amounts, if any, to which the holders of Preferred Stock or any class or series of stock having a preference over the Class A Common Stock as to distributions upon dissolution or liquidation or winding up shall be entitled, the holders of all outstanding shares of Class A Common Stock (including Class A Common Stock which converted to Class A Common Stock from Class B Common Stock in accordance with Section 4.3(D) below on or prior to the date of such liquidation, dissolution or winding up (including if a Conversion Event occurred as a result of such liquidation, dissolution or winding up)) shall be entitled to receive the remaining assets of the Corporation available for distribution ratably in proportion to the number of shares held by each such stockholder. The holders of shares of (i) Class B Common Stock (other than to the extent such liquidation, dissolution or winding up constitutes a Conversion Event, in which case such Class B Common Stock shall automatically convert to Class A Common Stock in accordance with Section 4.3(D) below and the holders of such resulting Class A Common Stock shall be treated as a holder of Class A Common Stock in accordance with this Section 4.3(C)) and (ii) Class V Common Stock, in the case of clauses (i) and (ii) as such, shall not be entitled to receive any assets of the Corporation in the event of any voluntary or involuntary liquidation, dissolution or winding up of the affairs of the Corporation.

(D)          Conversion of Class B Common Stock. Immediately upon any Conversion Event applicable to any shares of Class B Common Stock, such shares of Class B Common Stock shall automatically, without any further action on the part of the record holder thereof or any other person, convert into and become an equal number of shares of Class A Common Stock, which conversion shall be effective on the Conversion Date with respect to such shares of Class B Common Stock, and the holder of such share of Class B Common Stock shall become a record holder of Class A Common Stock as of such Conversion Date. Each outstanding stock certificate or book-entry credit, as applicable, that, immediately prior to such Conversion Event, represented one or more shares of Class B Common Stock shall, upon such Conversion Event, be automatically deemed to represent as of the Conversion Date an equal number of shares of Class A Common Stock, without the need for any surrender, exchange or registration thereof or any consent or notification. The Corporation, or any transfer agent of the Corporation, shall, upon the request on or after the Conversion Date of any holder whose shares of Class B Common Stock have been converted into shares of Class A Common Stock as a result of a Conversion Event and upon surrender by such holder to the Corporation of the outstanding certificate(s) formerly representing such holder’s shares of Class B Common Stock (if any), issue and deliver to such holder certificate(s) representing the shares of Class A Common Stock into which such holder’s shares of Class B Common Stock were converted as a result of such Conversion Event (if such shares are certificated) or, if such shares are uncertificated, register such shares in book-entry form, reflecting that such holder is a record holder of Class A Common Stock as of the Conversion Date in respect of the relevant shares of Class B Common Stock.

(E)          Cancellation of Class V Common Stock. In the event that any outstanding share of Class V Common Stock shall cease to be held directly or indirectly by a holder of a Common Unit (as defined in the Third Amended and Restated Limited Liability Company Agreement of the LLC, dated on or about the date hereof (the “LLC Agreement”), as set forth in the books and records of the LLC, such share shall automatically and without further action on the part of the Corporation or any holder of Class V Common Stock be transferred to the Corporation and cancelled for no consideration. The Corporation shall not issue additional shares of Class V Common Stock after the Closing Date other than in connection with the valid issuance of Common Units in accordance with the LLC Agreement or the vesting of any Restricted Common Units (as defined in the LLC Agreement) into Common Units upon the occurrence of an applicable Vesting Event (as defined in the LLC Agreement).

(F)          Reservation of Stock. The Corporation shall at all times reserve and keep available out of its authorized but unissued shares of Class A Common Stock an amount equal to the number of then-outstanding Common Units subject to Exchange (as defined in the LLC Agreement) and then-outstanding Restricted Common Units plus the number of then-outstanding shares of Class B Common Stock, in each case, from time to time. The Corporation shall at all times reserve and keep available out of its authorized but unissued shares of Class V Common Stock an amount equal to the number of then-outstanding Restricted Common Units, from time to time.

(G)          Splits. If the Corporation at any time combines or subdivides (by any stock split, stock dividend, recapitalization, reorganization, merger, amendment of this Certificate of Incorporation, scheme, arrangement or otherwise) the number of shares of Class A Common Stock into a greater or lesser number of shares, the shares of Class B Common Stock and Class V Common Stock outstanding immediately prior to such subdivision shall be proportionately similarly combined or subdivided such that the ratio of shares of outstanding Class B Common Stock and Class V Common Stock, respectively, to shares of outstanding Class A Common Stock immediately prior to such subdivision shall be maintained immediately after such combination or subdivision; provided, that (i) such actions with respect to the Class V Common Stock shall be subject to Section 4.1(d) and the last sentence of Section 3.2 of the LLC Agreement and (ii) such actions with respect to the Class B Common Stock shall be subject to the last sentence of Section 1.5 of the Side Letter. Any adjustment described in this Section 4.3(G) shall become effective at the close of business on the date the combination or subdivision becomes effective.

Article V

Section 5.1.     By-Laws. In furtherance and not in limitation of the powers conferred by the DGCL, the Board is expressly authorized to make, amend, alter, change, add to or repeal the by-laws of the Corporation (as the same may be amended from time to time, the “By-Laws”) without the assent or vote of the stockholders in any manner not inconsistent with the laws of the State of Delaware or this Certificate of Incorporation. Notwithstanding anything to the contrary contained in this Certificate of Incorporation or any provision of law which might otherwise permit a lesser vote of the stockholders, in addition to any vote of the holders of any class or series of capital stock of the Corporation required herein (including any certificate of designations relating to any series of Preferred Stock), by the By-Laws or pursuant to applicable law, the affirmative vote of the holders of at least 66 2/3% of the total voting power of all the then outstanding shares of stock of the Corporation entitled to vote generally in the election of directors, voting together as a single class, shall be required in order for the stockholders of the Corporation to alter, amend, repeal or rescind, in whole or in part, any provision of Article I, Article II or Article IV of the By-Laws of the Corporation, or to adopt any provision inconsistent therewith and, with respect to any other provision of the By-Laws of the Corporation, the affirmative vote of the holders of at least a majority of the total voting power of all the then outstanding shares of stock of the Corporation entitled to vote generally in the election of directors, voting together as a single class, shall be required in order for the stockholders of the Corporation to alter, amend, repeal or rescind, in whole or in part, any such provision of the By-Laws of the Corporation, or to adopt any provision inconsistent therewith.

Article VI

Section 6.1.     Board of Directors.

(A)          Except as otherwise provided in this Certificate of Incorporation or the DGCL, the business and affairs of the Corporation shall be managed by or under the direction of the Board. Subject to the investor rights agreement (the “Investor Rights Agreement”) dated on or about the date hereof, by and among the Corporation, the Sellers, the CCH Sponsor and the other parties party thereto, the total number of directors constituting the whole Board shall be determined from time to time by resolution adopted by the Board. Subject to the Investor Rights Agreement, the directors (other than those directors elected by the holders of any series of Preferred Stock, voting separately as a series or together with one or more other such series, as the case may be) shall be divided into three classes designated Class I, Class II and Class III. Each class shall consist, as nearly as possible, of one-third of the total number of such directors. Class I directors shall initially serve for a term expiring at the first annual meeting of stockholders following the Closing Date, Class II directors shall initially serve for a term expiring at the second annual meeting of stockholders following the Closing Date and Class III directors shall initially serve for a term expiring at the third annual meeting of stockholders following the Closing Date. At each annual meeting following the Closing Date, successors to the class of directors whose term expires at that annual meeting shall be elected for a term expiring at the third succeeding annual meeting of stockholders. If the number of such directors is changed, any increase or decrease shall be apportioned among the classes so as to maintain the number of directors in each class as nearly equal as possible, and any such additional director of any class elected to fill a newly created directorship resulting from an increase in such class shall hold office for a term that shall coincide with the remaining term of that class, but in no case shall a decrease in the number of directors remove, or shorten the term of, any incumbent director. Any such director shall hold office until the annual meeting at which his or her term expires and until his or her successor shall be elected and qualified, or his or her earlier death, resignation, retirement, disqualification or removal from office. The Board is authorized to assign members of the Board already in office to their respective class in accordance with the Investor Rights Agreement.

(B)          Subject to the rights granted to the holders of any one or more series of Preferred Stock then outstanding and the rights granted pursuant to the Investor Rights Agreement, any newly-created directorship on the Board that results from an increase in the number of directors and any vacancy occurring in the Board (whether by death, resignation, retirement, disqualification, removal or other cause) shall be filled by the affirmative vote of a majority of the directors then in office, although less than a quorum, or by a sole remaining director (and not by the stockholders). Any director elected to fill a vacancy or newly created directorship shall hold office until the next election of the class for which such director shall have been chosen and until his or her successor shall be elected and qualified, or until his or her earlier death, resignation, retirement, disqualification or removal.

(C)          Any director may resign at any time upon notice to the Corporation given in writing or by any electronic transmission permitted by the By-Laws. Subject to the terms of the Investor Rights Agreement, any or all of the directors (other than the directors elected by the holders of any series of Preferred Stock of the Corporation, voting separately as a series or together with one or more other such series, as the case may be) may be removed only for cause and only upon the affirmative vote of the holders of at least 66 2/3% of the total voting power of all the then outstanding shares of stock of the Corporation entitled to vote generally in the election of directors, voting together as a single class. Subject to the terms and conditions of the Investor Rights Agreement, in case the Board or any one or more directors should be so removed, new directors may be elected pursuant to Section 6.1(B).

(D)          Whenever the holders of any one or more series of Preferred Stock issued by the Corporation shall have the right, voting separately as a series or separately as a class with one or more such other series, to elect directors at an annual or special meeting of stockholders, the election, term of office, removal and other features of such directorships shall be governed by the terms of this Certificate of Incorporation (including any certificate of designations relating to any series of Preferred Stock) applicable thereto. Notwithstanding Section 6.1(A), the number of directors that may be elected by the holders of any such series of Preferred Stock shall be in addition to the number fixed pursuant to Section 6.1(A) hereof, and the total number of directors constituting the whole Board shall be automatically adjusted accordingly.

(E)           Directors of the Corporation need not be elected by written ballot unless the By-Laws shall so provide.

Article VII

Section 7.1.     Meetings of Stockholders. Any action required or permitted to be taken by the holders of stock of the Corporation must be effected at a duly called annual or special meeting of such holders and may not be effected by any consent in writing by such holders unless such action is recommended or approved by all directors of the Corporation then in office; provided, however, that any action required or permitted to be taken by the holders of Class V Common Stock , voting separately as a class, or, to the extent expressly permitted by the certificate of designations relating to one or more series of Preferred Stock, by the holders of such series of Preferred Stock, voting separately as a series or separately as a class with one or more other such series, may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by the holders of outstanding shares of the relevant class or series having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and shall be delivered to the Corporation by delivery to its registered office in Delaware, its principal place of business, or to an officer or agent of the Corporation having custody of the book in which proceedings of meetings of stockholders are recorded. Subject to the rights of the holders of any series of Preferred Stock, special meetings of the stockholders of the Corporation may be called only by or at the direction of the Board, the Chairman of the Board or the Chief Executive Officer of the Corporation or as otherwise provided in the By-Laws.

Article VIII

Section 8.1.     Limited Liability of Directors. To the fullest extent permitted by law, no director of the Corporation will have any personal liability to the Corporation or its stockholders for monetary damages for any breach of fiduciary duty as a director. If the DGCL is amended to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of a director of the Corporation shall be eliminated or limited to the fullest extent permitted by the DGCL, as so amended. Neither the amendment nor the repeal of this Article VIII shall eliminate, reduce or otherwise adversely affect any limitation on the personal liability of a director of the Corporation existing prior to such amendment or repeal.

Article IX

Section 9.1.     DGCL Section 203 and Business Combinations.

(A)          The Corporation hereby expressly elects not to be governed by Section 203 of the DGCL.

(B)          Notwithstanding the foregoing, the Corporation shall not engage in any business combination (as defined below), at any point in time at which the Corporation’s Common Stock is registered under Section 12(b) or 12(g) of the Exchange Act of 1934, as amended (the “Exchange Act”), with any interested stockholder (as defined below) for a period of three years following the time that such stockholder became an interested stockholder, unless:

(1)     prior to such time, the Board approved either the business combination or the transaction which resulted in the stockholder becoming an interested stockholder, or

(2)     upon consummation of the transaction which resulted in the stockholder becoming an interested stockholder, the interested stockholder owned at least 85% of the voting stock (as defined below) of the Corporation outstanding at the time the transaction commenced, excluding for purposes of determining the voting stock outstanding (but not the outstanding voting stock owned by the interested stockholder) those shares owned by (i) persons who are directors and also officers and (ii) employee stock plans in which employee participants do not have the right to determine confidentially whether shares held subject to the plan will be tendered in a tender or exchange offer, or

(3)     at or subsequent to such time, the business combination is approved by the Board and authorized at an annual or special meeting of stockholders, and not by written consent, by the affirmative vote of at least 66 2/3% of the outstanding voting stock of the Corporation which is not owned by the interested stockholder.

(C)          For purposes of this Article IX, references to:

(1)     “Affiliate” means a person that directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, another person.

(2)     “associate,” when used to indicate a relationship with any person, means: (i) any corporation, partnership, unincorporated association or other entity of which such person is a director, officer or partner or is, directly or indirectly, the owner of 20% or more of any class of voting stock; (ii) any trust or other estate in which such person has at least a 20% beneficial interest or as to which such person serves as trustee or in a similar fiduciary capacity; and (iii) any relative or spouse of such person, or any relative of such spouse, who has the same residence as such person.

(3)         “business combination,” when used in reference to the Corporation and any interested stockholder of the Corporation, means:

a.            any merger or consolidation of the Corporation or any direct or indirect majority-owned subsidiary of the Corporation (i) with the interested stockholder, or (ii) with any other corporation, partnership, unincorporated association or other entity if the merger or consolidation is caused by the interested stockholder and as a result of such merger or consolidation Section 9.1(B) of this Article IX is not applicable to the surviving entity;

b.            any sale, lease, exchange, mortgage, pledge, transfer or other disposition (in one transaction or a series of transactions), except proportionately as a stockholder of the Corporation, to or with the interested stockholder, whether as part of a dissolution or otherwise, of assets of the Corporation or of any direct or indirect majority-owned subsidiary of the Corporation which assets have an aggregate market value equal to 10% or more of either the aggregate market value of all the assets of the Corporation determined on a consolidated basis or the aggregate market value of all the outstanding stock of the Corporation;

c.            any transaction which results in the issuance or transfer by the Corporation or by any direct or indirect majority-owned subsidiary of the Corporation of any stock of the Corporation or of such subsidiary to the interested stockholder, except: (i) pursuant to the exercise, exchange or conversion of securities exercisable for, exchangeable for or convertible into stock of the Corporation or any such subsidiary which securities were outstanding prior to the time that the interested stockholder became such; (ii) pursuant to a merger under Section 251(g) of the DGCL; (iii) pursuant to a dividend or distribution paid or made, or the exercise, exchange or conversion of securities exercisable for, exchangeable for or convertible into stock of the Corporation or any such subsidiary which security is distributed, pro rata to all holders of a class or series of stock of the Corporation subsequent to the time the interested stockholder became such; (iv) pursuant to an exchange offer by the Corporation to purchase stock made on the same terms to all holders of said stock; or (v) any issuance or transfer of stock by the Corporation; provided, however, that in no case under items (iii) through (v) of this subsection (c) shall there be an increase in the interested stockholder’s proportionate share of the stock of any class or series of the Corporation or of the voting stock of the Corporation (except as a result of immaterial changes due to fractional share adjustments);

d.            any transaction involving the Corporation or any direct or indirect majority-owned subsidiary of the Corporation which has the effect, directly or indirectly, of increasing the proportionate share of the stock of any class or series, or securities convertible into the stock of any class or series, of the Corporation or of any such subsidiary which is owned by the interested stockholder, except as a result of immaterial changes due to fractional share adjustments or as a result of any purchase or redemption of any shares of stock not caused, directly or indirectly, by the interested stockholder; or

e.            any receipt by the interested stockholder of the benefit, directly or indirectly (except proportionately as a stockholder of the Corporation), of any loans, advances, guarantees, pledges, or other financial benefits (other than those expressly permitted in subsections (a) through (d) above) provided by or through the Corporation or any direct or indirect majority-owned subsidiary.

(4)            “control,” including the terms “controlling,” “controlled by” and “under common control with,” 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 stock, by contract, or otherwise. A person who is the owner of 20% or more of the outstanding voting stock of a corporation, partnership, unincorporated association or other entity shall be presumed to have control of such entity, in the absence of proof by a preponderance of the evidence to the contrary. Notwithstanding the foregoing, a presumption of control shall not apply where such person holds voting stock, in good faith and not for the purpose of circumventing Section 9.1(B) of Article IX, as an agent, bank, broker, nominee, custodian or trustee for one or more owners who do not individually or as a group have control of such entity.

(5)            “interested stockholder” means any person (other than the Corporation or any direct or indirect majority-owned subsidiary of the Corporation) that (i) is the owner of 15% or more of the outstanding voting stock of the Corporation, or (ii) is an Affiliate or associate of the Corporation and was the owner of 15% or more of the outstanding voting stock of the Corporation at any time within the three year period immediately prior to the date on which it is sought to be determined whether such person is an interested stockholder; and the Affiliates and associates of such person; but “interested stockholder” shall not include (x) any Stockholder Party, any Stockholder Party Direct Transferee, any Stockholder Party Indirect Transferee or any of their respective Affiliates or any “group,” or any member of any such group, to which such persons are a party under Rule 13d-5 of the Exchange Act, provided that a majority of the aggregate shares of voting stock of the Corporation owned by such group immediately prior to the business combination or the transaction which resulted in the stockholder becoming an interested stockholder were owned (without giving effect to beneficial ownership attributed to such person pursuant to Section 13(d)(3) of the Exchange Act or Rule 13d-5 of the Exchange Act) by one or more Stockholder Parties, Stockholder Party Direct Transferees, or Stockholder Party Indirect Transferees, or (y) any person whose ownership of shares in excess of the 15% limitation set forth herein is the result of any action taken solely by the Corporation; provided, further, that in the case of clause (y) such person shall be an interested stockholder if thereafter such person acquires additional shares of voting stock of the Corporation, except as a result of further corporate action not caused, directly or indirectly, by such person. For the purpose of determining whether a person is an interested stockholder, the voting stock of the Corporation deemed to be outstanding shall include stock deemed to be owned by the person through application of the definition of “owner” below but shall not include any other unissued stock of the Corporation which may be issuable pursuant to any agreement, arrangement or understanding, or upon exercise of conversion rights, warrants or options, or otherwise.

(6)            “owner,” including the terms “own” and “owned,” when used with respect to any stock, means a person that individually or with or through any of its Affiliates or associates:

a.             beneficially owns such stock, directly or indirectly; or

b.            has (i) the right to acquire such stock (whether such right is exercisable immediately or only after the passage of time) pursuant to any agreement, arrangement or understanding, or upon the exercise of conversion rights, exchange rights, warrants or options, or otherwise; provided, however, that a person shall not be deemed the owner of stock tendered pursuant to a tender or exchange offer made by such person or any of such person’s Affiliates or associates until such tendered stock is accepted for purchase or exchange; or (ii) the right to vote such stock pursuant to any agreement, arrangement or understanding; provided, however, that a person shall not be deemed the owner of any stock because of such person’s right to vote such stock if the agreement, arrangement or understanding to vote such stock arises solely from a revocable proxy or consent given in response to a proxy or consent solicitation made to 10 or more persons; or

c.            has any agreement, arrangement or understanding for the purpose of acquiring, holding, voting (except voting pursuant to a revocable proxy or consent as described in item (ii) of subsection (b) above), or disposing of such stock with any other person that beneficially owns, or whose Affiliates or associates beneficially own, directly or indirectly, such stock.

(7)            “person” means any individual, corporation, partnership, unincorporated association or other entity.

(8)            “stock” means, with respect to any corporation, capital stock and, with respect to any other entity, any equity interest.

(9)            “Stockholder Parties” means the Holders (as defined in the Investor Rights Agreement). The term “Stockholder Party” shall have a correlative meaning to “Stockholder Parties.”

(10)          “Stockholder Party Direct Transferee” means any person that acquires (other than in a registered public offering) directly from any Stockholder Party or any of its successors or any “group,” or any member of any such group, of which such persons are a party under Rule 13d-5 of the Exchange Act, beneficial ownership of 15% or more of the then outstanding voting stock of the Corporation.

(11)          “Stockholder Party Indirect Transferee” means any person that acquires (other than in a registered public offering) directly from any Stockholder Party Direct Transferee or any other Stockholder Party Indirect Transferee, beneficial ownership of 15% or more of the then outstanding voting stock of the Corporation.

(12)          “voting stock” means stock of any class or series entitled to vote generally in the election of directors and, with respect to any entity that is not a corporation, any equity interest entitled to vote generally in the election of the governing body of such entity. Every reference to a percentage of voting stock shall refer to such percentages of the votes of such voting stock.

Article X

Section 10.1.          Competition and Corporate Opportunities.

(A)          In recognition and anticipation that members of the Board who are not employees of the Corporation (“Non-Employee Directors”) and their respective Affiliates and Affiliated Entities (each, as defined below) may now engage and may continue to engage in the same or similar activities or related lines of business as those in which the Corporation, directly or indirectly, may engage and/or other business activities that overlap with or compete with those in which the Corporation, directly or indirectly, may engage, the provisions of this Article X are set forth to regulate and define the conduct of certain affairs of the Corporation with respect to certain classes or categories of business opportunities as they may involve any of the Non-Employee Directors or their respective Affiliates and the powers, rights, duties and liabilities of the Corporation and its directors, officers and stockholders in connection therewith.

(B)          No Non-Employee Director or his or her Affiliates or Affiliated Entities (the Persons (as defined below) above being referred to, collectively, as “Identified Persons” and, individually, as an “Identified Person”) shall, to the fullest extent permitted by law, have any duty to refrain from directly or indirectly (1) engaging in the same or similar business activities or lines of business in which the Corporation or any of its Affiliates now engages or proposes to engage or (2) otherwise competing with the Corporation or any of its Affiliates, and, to the fullest extent permitted by law, no Identified Person shall be liable to the Corporation or its stockholders or to any Affiliate of the Corporation for breach of any fiduciary duty solely by reason of the fact that such Identified Person engages in any such activities. To the fullest extent permitted by law, the Corporation hereby renounces any interest or expectancy in, or right to be offered an opportunity to participate in, any business opportunity which may be a corporate opportunity for an Identified Person and the Corporation or any of its Affiliates, except as provided in Section 10.1(C) of this Article X. Subject to Section 10.1(C) of this Article X, in the event that any Identified Person acquires knowledge of a potential transaction or other business opportunity which may be a corporate opportunity for itself, herself or himself and the Corporation or any of its Affiliates, such Identified Person shall, to the fullest extent permitted by law, have no duty to communicate or offer such transaction or other business opportunity to the Corporation or any of its Affiliates and, to the fullest extent permitted by law, shall not be liable to the Corporation or its stockholders or to any Affiliate of the Corporation for breach of any fiduciary duty as a stockholder, director or officer of the Corporation solely by reason of the fact that such Identified Person pursues or acquires such corporate opportunity for itself, herself or himself, or offers or directs such corporate opportunity to another Person.

(C)          The Corporation does not renounce its interest in any corporate opportunity offered to any Non-Employee Director if such opportunity is expressly offered or presented to, or acquired or developed by, such person solely in his or her capacity as a director or officer of the Corporation, and the provisions of Section 10.1(B) of this Article X shall not apply to any such corporate opportunity.

(D)          In addition to and notwithstanding the foregoing provisions of this Article X, a corporate opportunity shall not be deemed to be a potential corporate opportunity for the Corporation if it is a business opportunity that (i) the Corporation is neither financially or legally able, nor contractually permitted to undertake, (ii) from its nature, is not in the line of the Corporation’s business or is of no practical advantage to the Corporation, (iii) is one in which the Corporation has no interest or reasonable expectancy, or (iv) is one presented to any account for the benefit of a member of the Board or such member’s Affiliate over which such member of the Board has no direct or indirect influence or control, including, but not limited to, a blind trust.

(E)           For purposes of this Article X, (i) “Affiliate” shall mean (a) in respect of a member of the Board, any Person that, directly or indirectly, is controlled by such member of the Board (other than the Corporation and any entity that is controlled by the Corporation) and (b) in respect of the Corporation, any Person that, directly or indirectly, is controlled by the Corporation; (ii) “Affiliated Entity” shall mean (x) any Person of which a Non-Employee Director serves as an officer, director, employee, agent or other representative (other than the Corporation and any entity that is controlled by the Corporation), (y) any direct or indirect partner, stockholder, member, manager or other representative of such Person or (z) any Affiliate of any of the foregoing; and (iii) “Person” shall mean any individual, corporation, general or limited partnership, limited liability company, joint venture, trust, association or any other entity.

(F)          To the fullest extent permitted by law, any Person purchasing or otherwise acquiring any interest in any shares of capital stock of the Corporation shall be deemed to have notice of and to have consented to the provisions of this Article X.

(G)          Any alteration, amendment, addition to or repeal of this Article X shall require the affirmative vote of at least 80% of the total voting power of all the then outstanding shares of stock of the Corporation entitled to vote generally in the election of directors, voting together as a single class. Neither the alteration, amendment, addition to or repeal of this Article X, nor the adoption of any provision of this Certificate of Incorporation (including any certificate of designations relating to any series of Preferred Stock) inconsistent with this Article X, shall eliminate or reduce the effect of this Article X in respect of any business opportunity first identified or any other matter occurring, or any cause of action, suit or claim that, but for this Article X, would accrue or arise, prior to such alteration, amendment, addition, repeal or adoption. This Article X shall not limit any protections or defenses available to, or indemnification or advancement rights of, any director or officer of the Corporation under this Certificate of Incorporation, the By-Laws or applicable law.

Article XI

Section 11.1.       Severability. If any provision of this Certificate of Incorporation shall be held to be invalid, illegal or unenforceable as applied to any circumstance for any reason whatsoever, the validity, legality and enforceability of such provision in any other circumstance and of the remaining provisions of this Certificate of Incorporation (including, without limitation, each portion of any paragraph of this Certificate of Incorporation containing any such provision held to be invalid, illegal or unenforceable that is not itself held to be invalid, illegal or unenforceable) shall not in any way be affected or impaired thereby.

Article XII

Section 12.1.       Forum. Unless the Corporation consents in writing to the selection of an alternative forum, (i) any derivative action or proceeding brought on behalf of the Corporation, (ii) any action asserting a claim of breach of a fiduciary duty owed by any current or former director, officer, other employee or stockholder of the Corporation to the Corporation or the Corporation’s stockholders, (iii) any action (a) arising pursuant to any provision of the DGCL, this Certificate of Incorporation (as it may be amended or restated) or the By-Laws or (b) as to which the DGCL confers jurisdiction on the Delaware Court of Chancery or (iv) any action asserting a claim against the Corporation or any officer or director of the Corporation governed by the internal affairs doctrine of the law of the State of Delaware shall, to the fullest extent permitted by law, be solely and exclusively brought in the Delaware Court of Chancery; provided, however, that, in the event that the Delaware Court of Chancery lacks subject matter jurisdiction over any such action or proceeding, the sole and exclusive forum for such action or proceeding shall be another state or federal court located within the State of Delaware, in each such case, unless the Court of Chancery (or such other state or federal court located within the State of Delaware, as applicable) has dismissed a prior action by the same plaintiff asserting the same claims because such court lacked personal jurisdiction over an indispensable party named as a defendant therein. Unless the Corporation consents in writing to the selection of an alternative forum, the federal district courts of the United States of America shall, to the fullest extent permitted by law, be the sole and exclusive forum for the resolution of any complaint asserting a cause of action arising under the Securities Act of 1933, as amended. Failure to enforce the foregoing provisions would cause the Corporation irreparable harm and the Corporation shall be entitled to equitable relief, including injunctive relief and specific performance, to enforce the foregoing provisions. To the fullest extent permitted by law, any person or entity purchasing or otherwise acquiring or holding any interest in shares of capital stock of the Corporation shall be deemed to have notice of and consented to the provisions of this Article XII.

Article XIII

Section 13.1.       Amendments. Notwithstanding anything contained in this Certificate of Incorporation to the contrary, in addition to any vote required by law, the following provisions in this Certificate of Incorporation may be amended, altered, repealed or rescinded, in whole or in part, or any provision inconsistent therewith or herewith may be adopted, only by the affirmative vote of the holders of at least 66 2/3% of the total voting power of all the then outstanding shares of stock of the Corporation entitled to vote generally in the election of directors, voting together as a single class: Article V, Article VI, Article VII, Article VIII, Article IX, Article XII and this Article XIII. Except as expressly provided in the foregoing sentence and the remainder of this Certificate of Incorporation (including any certificate of designations relating to any series of Preferred Stock), this Certificate of Incorporation may be amended by the affirmative vote of the holders of at least a majority of the total voting power of all the then outstanding shares of stock of the Corporation entitled to vote generally in the election of directors, voting together as a single class.

Article XIV

Section 14.1.       Incorporator. The name and mailing address of the incorporator of the Corporation is as follows:

* * *

IN WITNESS WHEREOF, the undersigned, being the incorporator herein before named, has executed, signed and acknowledged this Certificate of Incorporation as of this __ day of ______________, 2020.

[Signature Page –Certificate of Incorporation]

EXHIBIT B

BUYER BYLAWS

(see attached)

BY-LAWS

OF

UTZ BRANDS, INC.

Article I.

STOCKHOLDERS

Section 1.     The annual meeting of the stockholders of Utz Brands, Inc. (the “Corporation”) for the purpose of electing directors and for the transaction of such other business as may properly be brought before the meeting shall be held on such date, and at such time and place, if any, within or without the State of Delaware, or by means of remote communications pursuant to paragraph (C)(2) of Section 12, as may be designated from time to time by the Board of Directors of the Corporation (the “Board”). The Corporation may postpone, reschedule or cancel any annual meeting of stockholders previously scheduled.

Section 2.     Except as otherwise required by the General Corporation Law of the State of Delaware (the “DGCL”) or the certificate of incorporation of the Corporation (the “Certificate of Incorporation”), and subject to the rights of the holders of any class or series of Preferred Stock (as defined in the Certificate of Incorporation), special meetings of the stockholders of the Corporation may be called only by or at the direction of the Board, the Chairman of the Board or the Chief Executive Officer of the Corporation. Special meetings may be held either at a place, within or without the State of Delaware, or by means of remote communications pursuant to paragraph (C)(2) of Section 12 as the Board may determine.

Section 3.     Except as otherwise provided by the DGCL, the Certificate of Incorporation or these By-Laws, notice of the date, time, place (if any), the means of remote communications, if any, by which stockholders and proxy holders may be deemed to be present in person and vote at such meeting, the record date for determining the stockholders entitled to vote at the meeting (if such date is different from the record date for stockholders entitled to notice of the meeting) and, in the case of a special meeting, the purpose or purposes of the meeting of stockholders shall be given not more than sixty (60), nor less than ten (10), days previous thereto (unless a different time is specified by law), to each stockholder entitled to vote at the meeting as of the record date for determining stockholders entitled to notice of the meeting. If mailed, such notice shall be deemed to be given when deposited in the United States mail, postage prepaid, directed to the stockholder at such stockholder’s address as it appears on the records of the Corporation. Without limiting the manner by which notices of meetings otherwise may be given effectively to stockholders, any such notice may be given by electronic transmission in the manner provided in Section 232 of the DGCL.

Section 4.     The holders of a majority in voting power of the stock issued and outstanding and entitled to vote thereat, present in person or represented by proxy, shall constitute a quorum at all meetings of the stockholders for the transaction of business, except as otherwise provided herein, by applicable law or by the Certificate of Incorporation; but if at any meeting of stockholders there shall be less than a quorum present, the chairman of the meeting or, by a majority in voting power thereof, the stockholders present (either in person or by proxy) may, to the extent permitted by law, adjourn the meeting from time to time without further notice other than announcement at the meeting of the date, time and place, if any, and the means of remote communication, if any, by which stockholders may be deemed present in person and vote at such adjourned meeting, until a quorum shall be present or represented. Notwithstanding the foregoing, where a separate vote by a class or series or classes or series is required, a majority in voting power of the outstanding shares of such class or series or classes or series, present in person or represented by proxy, shall constitute a quorum entitled to take action with respect to that vote on that matter. At any adjourned meeting at which a quorum shall be present or represented by proxy, any business may be transacted which might have been transacted at the original meeting. Notice need not be given of any adjourned meeting if the time, date and place, if any, and the means of remote communication, if any, by which stockholders may be deemed present in person and vote at such adjourned meeting are announced at the meeting at which the adjournment is taken; provided, however, that if the adjournment is for more than thirty (30) days, a notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting. If after the adjournment a new record date for stockholders entitled to vote is fixed for the adjourned meeting, the Board shall fix a new record date for notice of such adjourned meeting, and shall give notice of the adjourned meeting to each stockholder of record entitled to vote at such adjourned meeting as of the record date for notice of such adjourned meeting.

Section 5.     The Chairman of the Board, or in the absence of the Chairman of the Board or at the Chairman of the Board’s direction, the Chief Executive Officer, or in the Chief Executive Officer’s absence or at the Chief Executive Officer’s direction, any officer of the Corporation shall call all meetings of the stockholders to order and shall act as chairman of any such meetings. The Secretary of the Corporation or, in such officer’s absence, an Assistant Secretary, shall act as secretary of the meeting. If neither the Secretary nor an Assistant Secretary is present, the chairman of the meeting shall appoint a secretary of the meeting. The Board may adopt such rules and regulations for the conduct of the meeting of stockholders as it shall deem appropriate. Unless otherwise determined by the Board prior to the meeting, the chairman of the meeting shall determine the order of business and shall have the authority in his or her discretion to regulate the conduct of any such meeting, including, without limitation, convening the meeting and adjourning the meeting (whether or not a quorum is present), announcing the date and time of the opening and the closing of the polls for each matter upon which the stockholders will vote, imposing restrictions on the persons (other than stockholders of record of the Corporation or their duly appointed proxies) who may attend any such meeting, establishing procedures for the transaction of business at the meeting (including the dismissal of business not properly presented), maintaining order at the meeting and safety of those present, restricting entry to the meeting after the time fixed for commencement thereof and limiting the circumstances in which any person may make a statement or ask questions at any meeting of stockholders. Unless and to the extent determined by the Board or the chairman over the meeting, meetings of stockholders shall not be required to be held in accordance with the rules of parliamentary procedure.

Section 6.     At all meetings of stockholders, any stockholder entitled to vote thereat shall be entitled to vote in person or by proxy, subject to applicable law. Without limiting the manner in which a stockholder may authorize another person or persons to act for the stockholder as proxy pursuant to the DGCL, the following shall constitute a valid means by which a stockholder may grant such authority: (1) a stockholder may execute a writing authorizing another person or persons to act for the stockholder as proxy, and execution of the writing may be accomplished by the stockholder or the stockholder’s authorized officer, director, employee or agent signing such writing or causing his or her signature to be affixed to such writing by any reasonable means including, but not limited to, by facsimile signature; or (2) a stockholder may authorize another person or persons to act for the stockholder as proxy by transmitting or authorizing by means of electronic transmission to the person who will be the holder of the proxy or to a proxy solicitation firm, proxy support service organization or like agent duly authorized by the person who will be the holder of the proxy to receive such transmission, provided that any such means of electronic transmission must either set forth or be submitted with information from which it can be determined that the electronic transmission was authorized by the stockholder. If it is determined that such electronic transmissions are valid, the inspector or inspectors of stockholder votes or, if there are no such inspectors, such other persons making that determination shall specify the information upon which they relied.

A proxy shall be irrevocable if it states that it is irrevocable and if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power. A stockholder may revoke any proxy which is not irrevocable by attending the meeting and voting in person or by delivering to the Secretary of the Corporation a revocation of the proxy or a new proxy bearing a later date.

Any copy, facsimile telecommunication or other reliable reproduction of the writing or transmission created pursuant to the preceding paragraphs of this Section 6 (including any electronic transmission) may be substituted or used in lieu of the original writing or transmission for any and all purposes for which the original writing or transmission could be used, provided that such copy, facsimile telecommunication or other reproduction shall be a complete reproduction of the entire original writing or transmission.

Proxies shall be filed with the secretary of the meeting prior to or at the commencement of the meeting to which they relate.

Section 7.     When a quorum is present at any meeting, the vote of the holders of a majority of the votes cast shall decide any question brought before such meeting, unless the question is one upon which by express provision of the Certificate of Incorporation, these By-Laws or the DGCL a different vote is required, in which case such express provision shall govern and control the decision of such question. Notwithstanding the foregoing, where a separate vote by a class or series or classes or series is required and a quorum is present, the affirmative vote of a majority of the votes cast by shares of such class or series or classes or series shall be the act of such class or series or classes or series, unless the question is one upon which by express provision of the Certificate of Incorporation, these By-Laws or the DGCL a different vote is required, in which case such express provision shall govern and control the decision of such question.

Section 8.     (A)     In order that the Corporation may determine the stockholders entitled to notice of any meeting of stockholders or any adjournment thereof, the Board may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board, and which record date shall, unless otherwise required by law, not be more than sixty (60) nor less than ten (10) days before the date of such meeting. If the Board so fixes a date, such date shall also be the record date for determining the stockholders entitled to vote at such meeting unless the Board determines, at the time it fixes such record date, that a later date on or before the date of the meeting shall be the date for making such determination. If no record date is fixed by the Board, the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board may fix a new record date for determination of stockholders entitled to vote at the adjourned meeting, and in such case shall also fix as the record date for stockholders entitled to notice of such adjourned meeting the same or an earlier date as that fixed for determination of stockholders entitled to vote in accordance herewith at the adjourned meeting.

(B)            In order that the Corporation may determine the stockholders entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change or conversion or for the purpose of any other lawful action, the Board may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted, and which record date shall not be more than sixty (60) days prior to such action. If no such record date is fixed, the record date for determining stockholders for any such purpose shall be at the close of business on the day on which the Board adopts the resolution relating thereto.

Section 9.     At any time when action by one or more classes or series of stockholders of the Corporation is permitted to be taken by written consent pursuant to the terms and limitations set forth in the Certificate of Incorporation, the provisions of this section shall apply. All consents properly delivered in accordance with the Certificate of Incorporation and the DGCL shall be deemed to be recorded when so delivered. No written consent shall be effective to take the corporate action referred to therein unless, within sixty (60) days of the earliest dated consent delivered to the Corporation as required by the DGCL, written consents signed by the holders of a sufficient number of shares to take such corporate action are so delivered to the Corporation in accordance with the applicable provisions of the DGCL. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for notice of such meeting had been the date that written consents signed by a sufficient number of holders to take the action were delivered to the Corporation as provided in the applicable provisions of the DGCL. Any action taken pursuant to such written consent or consents of the stockholders shall have the same force and effect as if taken by the stockholders at a meeting thereof. In order that the Corporation may determine the stockholders entitled to consent to corporate action in writing without a meeting, the Board may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board, and which date shall not be more than ten (10) days after the date upon which the resolution fixing the record date is adopted by the Board. If no record date has been fixed by the Board, the record date for determining stockholders entitled to consent to corporate action in writing without a meeting, when no prior action by the Board is required by the DGCL, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the Corporation by delivery to its registered office in the State of Delaware, its principal place of business, or an officer or agent of the Corporation having custody of the book in which proceedings of meetings of stockholders are recorded. Delivery made to the Corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested. If no record date has been fixed by the Board and prior action by the Board is required by the DGCL, the record date for determining stockholders entitled to consent to corporate action in writing without a meeting shall be at the close of business on the day on which the Board adopts the resolution taking such prior action.

Section 10.     The Corporation shall prepare, at least ten (10) days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting (provided, however, if the record date for determining the stockholders entitled to vote is less than ten (10) days before the date of the meeting, the list shall reflect the stockholders entitled to vote as of the tenth day before the meeting date), arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open to the examination of any stockholder for any purpose germane to the meeting for a period of at least ten (10) days prior to the meeting: (i) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of the meeting, or (ii) during ordinary business hours, at the principal place of business of the Corporation. In the event that the Corporation determines to make the list available on an electronic network, the Corporation may take reasonable steps to ensure that such information is available only to stockholders of the Corporation. If the meeting is to be held at a place, then a list of stockholders entitled to vote at the meeting shall be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any stockholder who is present. If the meeting is to be held solely by means of remote communication, then the list shall also be open to the examination of any stockholder during the whole time of the meeting on a reasonably accessible electronic network, and the information required to access such list shall be provided with the notice of the meeting.

Section 11.     The Board, in advance of all meetings of the stockholders, shall appoint one or more inspectors of stockholder votes, who may be employees or agents of the Corporation or stockholders or their proxies, but who shall not be directors of the Corporation or candidates for election as directors. In the event that the Board fails to so appoint one or more inspectors of stockholder votes or, in the event that one or more inspectors of stockholder votes previously designated by the Board fails to appear or act at the meeting of stockholders, the chairman of the meeting may appoint one or more inspectors of stockholder votes to fill such vacancy or vacancies. Inspectors of stockholder votes appointed to act at any meeting of the stockholders, before entering upon the discharge of their duties, shall take and sign an oath to faithfully execute the duties of inspector of stockholder votes with strict impartiality and according to the best of their ability and the oath so taken shall be subscribed by them. The inspector or inspectors so appointed or designated shall (i) ascertain the number of shares of capital stock of the Corporation outstanding and the voting power of each such share, (ii) determine the shares of capital stock of the Corporation represented at the meeting and the validity of proxies and ballots, (iii) count all votes and ballots, (iv) determine and retain for a reasonable period a record of the disposition of any challenges made to any determination by the inspectors, and (v) certify their determination of the number of shares of capital stock of the Corporation represented at the meeting and such inspectors’ count of all votes and ballots. Such certification and report shall specify such other information as may be required by law. In determining the validity and counting of proxies and ballots cast at any meeting of stockholders of the Corporation, the inspectors may consider such information as is permitted by applicable law.

Section 12.

(A)          Annual Meetings of Stockholders.

(1)            Nominations of persons for election to the Board and the proposal of other business to be considered by the stockholders may be made at an annual meeting of stockholders only (a) as provided in the Investor Rights Agreement (as defined in the Certificate of Incorporation), (b) pursuant to the Corporation’s notice of meeting (or any supplement thereto) delivered pursuant to Article I, Section 3 of these By-Laws, (c) by or at the direction of the Board or any authorized committee thereof or (d) by any stockholder of the Corporation who is entitled to vote on such election or such other business at the meeting, who has complied with the notice procedures set forth in subparagraphs (2) and (3) of this paragraph (A) of this Section 12 and who was a stockholder of record at the time such notice was delivered to the Secretary of the Corporation.

(2)            For nominations or other business to be properly brought before an annual meeting by a stockholder pursuant to Article I, Section 12(A)(1)(d) of these By-laws, the stockholder must have given timely notice thereof in writing to the Secretary of the Corporation (even if such matter is already the subject of any notice to the stockholders or a public announcement from the Board), and, in the case of business other than nominations of persons for election to the Board, such other business must be a proper matter for stockholder action. To be timely, a stockholder’s notice shall be delivered to the Secretary at the principal executive offices of the Corporation not less than ninety (90) days nor more than one hundred twenty (120) days prior to the first anniversary of the preceding year’s annual meeting; provided, however, that in the event that the date of the annual meeting is scheduled for more than thirty (30) days before, or more than seventy (70) days following, such anniversary date, or if no annual meeting was held in the preceding year, notice by the stockholder to be timely must be so delivered not later than the tenth day following the day on which public announcement of the date of such meeting is first made. For purposes of the application of Rule 14a-4(c) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) (or any successor provision), the date for notice specified in this paragraph (A)(2) shall be the earlier of the date calculated as hereinbefore provided or the date specified in paragraph (c)(1) of Rule 14a-4. For purposes of the first annual meeting of stockholders following the adoption of these By-Laws, the date of the preceding year’s annual meeting shall be deemed to be [ ● ] of the preceding calendar year.

Such stockholder’s notice shall set forth (a) as to each person whom the stockholder proposes to nominate for election or re-election as a director all information relating to such person that is required to be disclosed in solicitations of proxies for election of directors, or is otherwise required, in each case pursuant to Section 14(a) of the Exchange Act and the rules and regulations promulgated thereunder, including such person’s written consent to being named in the proxy statement as a nominee and to serving as a director if elected; (b) as to any other business that the stockholder proposes to bring before the meeting, a brief description of the business desired to be brought before the meeting, the text of the proposal or business (including the text of any resolutions proposed for consideration and, in the event that such business includes a proposal to amend these By-Laws, the language of the proposed amendment), the reasons for conducting such business at the meeting and any substantial interest (within the meaning of Item 5 of Schedule 14A under the Exchange Act) in such business of such stockholder and the beneficial owner (within the meaning of Rule 13d-3 promulgated under the Exchange Act), if any, on whose behalf the proposal is made; (c) as to the stockholder giving the notice and the beneficial owner, if any, on whose behalf the nomination or proposal is made (i) the name and address of such stockholder, as they appear on the Corporation’s books and records, and of such beneficial owner, (ii) the class or series and number of shares of capital stock of the Corporation which are owned directly or indirectly, beneficially and of record by such stockholder and such beneficial owner, (iii) a representation that the stockholder is a holder of record of the stock of the Corporation at the time of the giving of the notice, will be entitled to vote at such meeting and will appear in person or by proxy at the meeting to propose such business or nomination, (iv) a representation whether the stockholder or the beneficial owner, if any, will be or is part of a group which will (A) deliver a proxy statement and/or form of proxy to holders of at least the percentage of the voting power of the Corporation’s outstanding capital stock required to approve or adopt the proposal or elect the nominee and/or (B) otherwise solicit proxies or votes from stockholders in support of such proposal or nomination, (v) a certification regarding whether such stockholder and beneficial owner, if any, have complied with all applicable federal, state and other legal requirements in connection with the stockholder’s and/or beneficial owner’s acquisition of shares of capital stock or other securities of the Corporation and/or the stockholder’s and/or beneficial owner’s acts or omissions as a stockholder of the Corporation and (vi) any other information relating to such stockholder and beneficial owner, if any, required to be disclosed in a proxy statement or other filings required to be made in connection with solicitations of proxies for, as applicable, the proposal and/or for the election of directors in an election contest pursuant to and in accordance with Section 14(a) of the Exchange Act and the rules and regulations promulgated thereunder; (d) a description of any agreement, arrangement or understanding with respect to the nomination or proposal and/or the voting of shares of any class or series of stock of the Corporation between or among the stockholder giving the notice, the beneficial owner, if any, on whose behalf the nomination or proposal is made, any of their respective affiliates or associates and/or any others acting in concert with any of the foregoing (collectively, “proponent persons”); and (e) a description of any agreement, arrangement or understanding (including without limitation any contract to purchase or sell, acquisition or grant of any option, right or warrant to purchase or sell, swap or other instrument) the intent or effect of which may be (i) to transfer to or from any proponent person, in whole or in part, any of the economic consequences of ownership of any security of the Corporation, (ii) to increase or decrease the voting power of any proponent person with respect to shares of any class or series of stock of the Corporation and/or (iii) to provide any proponent person, directly or indirectly, with the opportunity to profit or share in any profit derived from, or to otherwise benefit economically from, any increase or decrease in the value of any security of the Corporation. A stockholder providing notice of a proposed nomination for election to the Board or other business proposed to be brought before a meeting (whether given pursuant to this paragraph (A)(2) or paragraph (B) of this Section 12) shall update and supplement such notice from time to time to the extent necessary so that the information provided or required to be provided in such notice shall be true and correct as of the record date for determining the stockholders entitled to notice of the meeting and as of the date that is fifteen (15) days prior to the meeting or any adjournment or postponement thereof, provided that if the record date for determining the stockholders entitled to vote at the meeting is less than fifteen (15) days prior to the meeting or any adjournment or postponement thereof, the information shall be supplemented and updated as of such later date. Any such update and supplement shall be delivered in writing to the Secretary at the principal executive offices of the Corporation not later than five (5) days after the record date for determining the stockholders entitled to notice of the meeting (in the case of any update or supplement required to be made as of the record date for determining the stockholders entitled to notice of the meeting), not later than ten (10) days prior to the date for the meeting or any adjournment or postponement thereof (in the case of any update or supplement required to be made as of fifteen (15) days prior to the meeting or any adjournment or postponement thereof) and not later than five (5) days after the record date for determining the stockholders entitled to vote at the meeting, but no later than the date prior to the meeting or any adjournment or postponement thereof (in the case of any update and supplement required to be made as of a date less than fifteen (15) days prior the date of the meeting or any adjournment or postponement thereof). The Corporation may require any proposed nominee to furnish such other information as it may reasonably require to determine the eligibility of such proposed nominee to serve as a director of the Corporation and to determine the independence of such director under the Exchange Act and rules and regulations thereunder and applicable stock exchange rules.

The foregoing notice requirements of this paragraph (A)(2) of Section 12 shall be deemed satisfied by a stockholder as to any proposal (other than nominations) if the stockholder has notified the Corporation of such stockholder’s intention to present such proposal at an annual meeting in compliance with Rule 14a-8 (or any successor thereof) of the Exchange Act, and such stockholder has complied with the requirements of such Rule for inclusion of such proposal in a proxy statement prepared by the Corporation to solicit proxies for such annual meeting. Nothing in this paragraph (A)(2), Section 12 shall be deemed to affect any rights of stockholders to request inclusion of proposals in the Corporation’s proxy statement pursuant to Rule 14a-8 under the Exchange Act.

(3)            Notwithstanding anything in the second sentence of paragraph (A)(2) of this Section 12 to the contrary, in the event that the number of directors to be elected to the Board is increased, effective after the time period for which nominations would otherwise be due under paragraph (A)(2) of this Section 12, and there is no public announcement naming all of the nominees for director or specifying the size of the increased Board made by the Corporation at least one hundred (100) days prior to the first anniversary of the preceding year’s annual meeting, a stockholder’s notice required by this Section 12 shall also be considered timely, but only with respect to nominees for any new positions created by such increase, if it shall be delivered to the Secretary at the principal executive offices of the Corporation not later than the close of business on the tenth day following the day on which a public announcement of such increase is first made by the Corporation.

(B)           Special Meetings of Stockholders. Only such business shall be conducted at a special meeting of stockholders as shall have been brought before the meeting pursuant to the Corporation’s notice of meeting pursuant to Article I, Section 3 of these By-Laws. Nominations of persons for election to the Board may be made at a special meeting of stockholders at which directors are to be elected pursuant to the Corporation’s notice of meeting (a) by or at the direction of the Board or a committee thereof or (b) provided that the Board has determined that directors shall be elected at such meeting, by any stockholder of the Corporation who is entitled to vote on such election at the meeting, who has complied with the notice procedures set forth in this Section 12 and who is a stockholder of record at the time such notice is delivered to the Secretary of the Corporation. In the event the Corporation calls a special meeting of stockholders for the purpose of electing one or more directors to the Board, any such stockholder entitled to vote in such election of directors may nominate a person or persons (as the case may be) for election to such position(s) as specified in the Corporation’s notice of meeting if the stockholder’s notice as required by paragraph (A)(2) of this Section 12 is delivered to the Secretary at the principal executive offices of the Corporation not earlier than the close of business on the 120th day prior to such special meeting and not later than the close of business on the later of the 90th day prior to such special meeting or the tenth day following the day on which public announcement is first made of the date of the special meeting and of the nominees proposed by the Board to be elected at such meeting.

(C)     General.     (1)     Only persons who are nominated in accordance with the procedures set forth in this Section 12 shall be eligible to be elected to serve as directors and only such business shall be conducted at a meeting of stockholders as shall have been brought before the meeting in accordance with the procedures set forth in this Section 12. Except as otherwise provided by law, the Certificate of Incorporation or these By-Laws, the chairman of the meeting shall have the power and duty to determine whether a nomination or any business proposed to be brought before the meeting was made in accordance with the procedures set forth in this Section 12 and, if any proposed nomination or business is not in compliance with this Section 12, to declare that such defective nomination shall be disregarded or that such proposed business shall not be transacted.

Notwithstanding the foregoing provisions of this Section 12, if the stockholder (or a qualified representative of the stockholder) does not appear at the annual or special meeting of stockholders of the Corporation to present a nomination or business, such nomination shall be disregarded and such proposed business shall not be transacted, notwithstanding that proxies in respect of such vote may have been received by the Corporation. For purposes of this Section 12, to be considered a qualified representative of the stockholder, a person must be a duly authorized officer, manager or partner of such stockholder or must be authorized by a writing executed by such stockholder or an electronic transmission delivered by such stockholder to act for such stockholder as proxy at the meeting of stockholders and such person must produce such writing or electronic transmission, or a reliable reproduction of the writing or electronic transmission, at the meeting of stockholders.

(2)            If authorized by the Board in its sole discretion, and subject to such rules, regulations and procedures as the Board may adopt, stockholders of the Corporation and proxyholders not physically present at a meeting of stockholders of the Corporation may, by means of remote communication participate in a meeting of stockholders of the Corporation and be deemed present in person and vote at a meeting of stockholders of the Corporation whether such meeting is to be held at a designated place or solely by means of remote communication; provided, however, that (i) the Corporation shall implement reasonable measures to verify that each person deemed present and permitted to vote at the meeting by means of remote communication is a stockholder of the Corporation or proxyholder; (ii) the Corporation shall implement reasonable measures to provide such stockholders of the Corporation and proxyholders a reasonable opportunity to participate in the meeting and to vote on matters submitted to the stockholders of the Corporation, including an opportunity to read or hear the proceedings of the meeting substantially concurrently with such proceedings; and (iii)  if any stockholder of the Corporation or proxyholder votes or takes other action at the meeting by means of remote communication, a record of such vote or other action shall be maintained by the Corporation.

(3)            For purposes of this Section 12, “public announcement” shall mean disclosure in a press release reported by the Dow Jones News Service, Associated Press or comparable national news service, in a document publicly filed or furnished by the Corporation with the Securities and Exchange Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act or otherwise disseminated in a manner constituting “public disclosure” under Regulation FD promulgated by the Securities and Exchange Commission.

(4)            No adjournment or postponement or notice of adjournment or postponement of any meeting shall be deemed to constitute a new notice (or extend any notice time period) of such meeting for purposes of this Section 12, and in order for any notification required to be delivered by a stockholder pursuant to this Section 12 to be timely, such notification must be delivered within the periods set forth above with respect to the originally scheduled meeting.

(5)            Notwithstanding the foregoing provisions of this Section 12, a stockholder shall also comply with all applicable requirements of the Exchange Act and the rules and regulations thereunder with respect to the matters set forth in this Section 12; provided, however, that, to the fullest extent permitted by law, any references in these By-Laws to the Exchange Act or the rules and regulations promulgated thereunder are not intended to and shall not limit any requirements applicable to nominations or proposals as to any other business to be considered pursuant to this Section 12 (including paragraphs (A)(1)(d) and (B) hereof), and compliance with paragraphs (A)(1)(d) and (B) of this Section 12 shall be the exclusive means for a stockholder to make nominations or submit other business. Nothing in this Section 12 shall apply to the right, if any, of the holders of any series of Preferred Stock to elect directors pursuant to any applicable provisions of the Certificate of Incorporation.

Notwithstanding anything to the contrary contained herein, for as long as the Investor Rights Agreement (as defined in the Certificate of Incorporation) remains in effect with respect to the Stockholder Parties (as defined in the Certificate of Incorporation), the Stockholder Parties (to the extent then subject to the Investor Rights Agreement) shall not be subject to the notice procedures set forth in paragraphs (A)(2), (A)(3) or (B) of this Section 12 with respect to any annual or special meeting of stockholders to the extent necessary to effect the transactions and rights set forth in the Investor Rights Agreement.

Article II.
BOARD OF DIRECTORS

Section 1.     The Board shall consist, subject to the Certificate of Incorporation and the Investor Rights Agreement, of such number of directors as shall from time to time be fixed exclusively by resolution adopted by the Board. Directors shall (except as hereinafter provided for the filling of vacancies and newly created directorships and except as otherwise expressly provided in the Certificate of Incorporation) be elected by the holders of a plurality of the votes cast by the holders of shares present in person or represented by proxy at the meeting and entitled to vote on the election of such directors in accordance with the terms of the Certificate of Incorporation and the Investor Rights Agreement, as applicable. A majority of the total number of directors then in office shall constitute a quorum for the transaction of business. Except as otherwise provided by law, these By-Laws, by the Certificate of Incorporation or by the Investor Rights Agreement, the act of a majority of the directors present at any meeting at which there is a quorum shall be the act of the Board. Directors need not be stockholders.

Section 2.     Subject to the Certificate of Incorporation and the Investor Rights Agreement, unless otherwise required by the DGCL or Article II, Section 4 of these By-Laws, any newly created directorship on the Board that results from an increase in the number of directors and any vacancy occurring in the Board (whether by death, resignation, removal, retirement, disqualification or otherwise) shall be filled only by a majority of the directors then in office, although less than a quorum, by any authorized committee of the Board or by a sole remaining director.

Section 3.     Meetings of the Board shall be held at such place, if any, within or without the State of Delaware as may from time to time be fixed by resolution of the Board or as may be specified in the notice of any meeting. Regular meetings of the Board shall be held at such times as may from time to time be fixed by resolution of the Board and special meetings may be held at any time upon the call of the Chairman of the Board, the Chief Executive Officer, or by a majority of the total number of directors then in office, by written notice, including facsimile, e-mail or other means of electronic transmission, duly served on or sent and delivered to each director in accordance with Article X, Section 2. Notice of each special meeting of the Board shall be given, as provided in Article X, Section 2, to each director (i) at least twenty-four (24) hours before the meeting if such notice is oral notice given personally or by telephone or written notice given by hand delivery or by means of a form of electronic transmission and delivery; (ii) at least two (2) days before the meeting if such notice is sent by a nationally recognized overnight delivery service; and (iii) at least five (5) days before the meeting if such notice is sent through the United States mail. If the Secretary shall fail or refuse to give such notice, then the notice may be given by the officer who called the meeting or the directors who requested the meeting. The notice of any meeting need not specify the purposes thereof. A meeting of the Board may be held without notice immediately after the annual meeting of stockholders at the same place, if any, at which such meeting is held. Notice need not be given of regular meetings of the Board held at times fixed by resolution of the Board. Notice of any meeting need not be given to any director who shall attend such meeting (except when the director attends a meeting for the express purpose of objecting at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened), or who shall waive notice thereof, before or after such meeting, in writing (including by electronic transmission).

Section 4.     Notwithstanding the foregoing, whenever the holders of any one or more series of Preferred Stock issued by the Corporation shall have the right, voting separately as a series or separately as a class with one or more such other series, to elect directors at an annual or special meeting of stockholders, the election, term of office, removal, and other features of such directorships shall be governed by the terms of the Certificate of Incorporation (including any certificate of designation relating to any series of Preferred Stock) applicable thereto. The number of directors that may be elected by the holders of any such series of Preferred Stock shall be in addition to the total number of directors fixed by the Board pursuant to the Certificate of Incorporation and these By-Laws. Except as otherwise expressly provided in the terms of such series, the number of directors that may be so elected by the holders of any such series of stock shall be elected for terms expiring at the next annual meeting of stockholders, and vacancies among directors so elected by the separate vote of the holders of any such series of Preferred Stock shall be filled by the affirmative vote of a majority of the remaining directors elected by such series, or, if there are no such remaining directors, by the holders of such series in the same manner in which such series initially elected a director.

Section 5.     The Board may from time to time establish one or more committees of the Board to serve at the pleasure of the Board, which shall be comprised of such members of the Board, subject to the Investor Rights Agreement, and have such duties as the Board shall from time to time determine. Any director may belong to any number of committees of the Board. Subject to the Certificate of Incorporation and the Investor Rights Agreement, the Board may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of a committee, the member or members present at any meeting and not disqualified from voting, whether or not such member or members constitute a quorum, may unanimously appoint another member of the Board to act at the meeting in the place of any such absent or disqualified member, subject to the Investor Rights Agreement. Subject to the Certificate of Incorporation and the Investor Rights Agreement, unless otherwise provided in the Certificate of Incorporation, these By-Laws or the resolution of the Board designating the committee, a committee may create one or more subcommittees, each subcommittee to consist of one or more members of the committee, and may delegate to a subcommittee any or all of the powers and authority of the committee.

Section 6.     Unless otherwise restricted by the Certificate of Incorporation or these By-Laws, any action required or permitted to be taken at any meeting of the Board or of any committee thereof may be taken without a meeting if all members of the Board or committee, as the case may be, consent thereto in writing (including by electronic transmission), and the writing or writings (including any electronic transmission or transmissions) are filed with the minutes of proceedings of the Board.

Section 7.     The members of the Board or any committee thereof may participate in a meeting of such Board or committee, as the case may be, by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this subsection shall constitute presence in person at such a meeting.

Section 8.     The Board may establish policies for the compensation of directors and for the reimbursement of the expenses of directors, in each case, in connection with services provided by directors to the Corporation.

Article III.
OFFICERS

Section 1.     The Board shall elect officers of the Corporation, including a Chief Executive Officer, a President and a Secretary. The Board may also from time to time elect such other officers as it may deem proper or may delegate to any elected officer of the Corporation the power to appoint and remove any such other officers and to prescribe their respective terms of office, authorities and duties. Any Vice President may be designated Executive, Senior or Corporate, or may be given such other designation or combination of designations as the Board or the Chief Executive Officer may determine. Any two or more offices may be held by the same person. The Board may also elect or appoint a Chairman of the Board, who may or may not also be an officer of the Corporation. The Board may elect or appoint co-Chairmen of the Board, co-Presidents or co-Chief Executive Officers and, in such case, references in these By-Laws to the Chairman of the Board, the President or the Chief Executive Officer shall refer to either such co-Chairman of the Board, co-President or co-Chief Executive Officer, as the case may be.

Section 2.     All officers of the Corporation elected by the Board shall hold office for such terms as may be determined by the Board or, except with respect to his or her own office, the Chief Executive Officer, or until their respective successors are chosen and qualified or until his or her earlier resignation or removal. Any officer may be removed from office at any time either with or without cause by the Board, or, in the case of appointed officers, by the Chief Executive Officer or any elected officer upon whom such power of removal shall have been conferred by the Board.

Section 3.     Each of the officers of the Corporation elected by the Board or appointed by an officer in accordance with these By-Laws shall have the powers and duties prescribed by law, by these By-Laws or by the Board and, in the case of appointed officers, the powers and duties prescribed by the appointing officer, and, unless otherwise prescribed by these By-Laws or by the Board or such appointing officer, shall have such further powers and duties as ordinarily pertain to that office.

Section 4.     Unless otherwise provided in these By-Laws, in the absence or disability of any officer of the Corporation, the Board or the Chief Executive Officer may, during such period, delegate such officer’s powers and duties to any other officer or to any director and the person to whom such powers and duties are delegated shall, for the time being, hold such office.

Article IV.
INDEMNIFICATION AND ADVANCEMENT OF EXPENSES

Section 1.     Each person who was or is made a party or is threatened to be made a party to or is otherwise involved in any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative or any other type whatsoever (hereinafter a “proceeding”), by reason of the fact that he or she is or was a director or an officer of the Corporation or, while a director or officer of the Corporation, is or was serving at the request of the Corporation as a director, officer, employee, agent or trustee of another corporation or of a partnership, joint venture, trust or other enterprise, including service with respect to an employee benefit plan (hereinafter an “indemnitee”), whether the basis of such proceeding is alleged action in an official capacity as a director, officer, employee, agent or trustee or in any other capacity while serving as a director, officer, employee, agent or trustee, shall be indemnified and held harmless by the Corporation to the fullest extent permitted by Delaware law, as the same exists or may hereafter be amended (but, in the case of any such amendment, only to the extent that such amendment permits the Corporation to provide broader indemnification rights than such law permitted the Corporation to provide prior to such amendment), against all expense, liability and loss (including attorneys’ fees, judgments, fines, ERISA excise taxes or penalties and amounts paid in settlement) reasonably incurred or suffered by such indemnitee in connection therewith; except as provided in Section 3 of this Article IV with respect to proceedings to enforce rights to indemnification or advancement of expenses or with respect to any compulsory counterclaim brought by such indemnitee, the Corporation shall indemnify any such indemnitee in connection with a proceeding (or part thereof) initiated by such indemnitee only if such proceeding (or part thereof) was authorized by the Board.

Section 2.     In addition to the right to indemnification conferred in Section 1 of this Article IV, an indemnitee shall also have the right to be paid by the Corporation the expenses (including attorney’s fees) incurred in appearing at, participating in or defending any such proceeding in advance of its final disposition or in connection with a proceeding brought to establish or enforce a right to indemnification or advancement of expenses under this Article IV (which shall be governed by Section 3 of this Article IV) (hereinafter an “advancement of expenses”); provided, however, that, if (x) the DGCL requires or (y) in the case of an advance made in a proceeding brought to establish or enforce a right to indemnification or advancement, an advancement of expenses incurred by an indemnitee in his or her capacity as a director or officer (and not in any other capacity in which service was or is rendered by such indemnitee, including, without limitation, service to an employee benefit plan) shall be made solely upon delivery to the Corporation of an undertaking (hereinafter an “undertaking”), by or on behalf of such indemnitee, to repay all amounts so advanced if it shall ultimately be determined after final judicial decision from which there is no further right to appeal (hereinafter a “final adjudication”) that such indemnitee is not entitled to indemnification under this Article IV or otherwise.

Section 3.     If a claim under Section 1 or 2 of this Article IV is not paid in full by the Corporation within (i) sixty (60) days after a written claim for indemnification has been received by the Corporation or (ii) twenty (20) days after a claim for an advancement of expenses has been received by the Corporation, the indemnitee may at any time thereafter bring suit against the Corporation to recover the unpaid amount of the claim or to obtain advancement of expenses, as applicable. To the fullest extent permitted by law, if the indemnitee is successful in whole or in part in any such suit, or in a suit brought by the Corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the indemnitee shall be entitled to be paid also the expense of prosecuting or defending such suit. In (i) any suit brought by the indemnitee to enforce a right to indemnification hereunder (but not in a suit brought by the indemnitee to enforce a right to an advancement of expenses) it shall be a defense of the Corporation that, and (ii) any suit brought by the Corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the Corporation shall be entitled to recover such expenses upon a final adjudication that, the indemnitee has not met any applicable standard for indemnification set forth in the DGCL. Neither the failure of the Corporation (including by its directors who are not parties to such action, a committee of such directors, independent legal counsel, or its stockholders) to have made a determination prior to the commencement of such suit that indemnification of the indemnitee is proper in the circumstances because the indemnitee has met the applicable standard of conduct set forth in the DGCL, nor an actual determination by the Corporation (including by its directors who are not parties to such action, a committee of such directors, independent legal counsel, or its stockholders) that the indemnitee has not met such applicable standard of conduct, shall create a presumption that the indemnitee has not met the applicable standard of conduct or, in the case of such a suit brought by the indemnitee, be a defense to such suit. In any suit brought by the indemnitee to enforce a right to indemnification or to an advancement of expenses hereunder, or brought by the Corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the burden of proving that the indemnitee is not entitled to be indemnified, or to such advancement of expenses, under this Article IV or otherwise shall be on the Corporation.

Section 4.

(A)          The provision of indemnification to or the advancement of expenses and costs to any indemnitee under this Article IV, or the entitlement of any indemnitee to indemnification or advancement of expenses and costs under this Article IV, shall not limit or restrict in any way the power of the Corporation to indemnify or advance expenses and costs to such indemnitee in any other way permitted by law or be deemed exclusive of, or invalidate, any right to which any indemnitee seeking indemnification or advancement of expenses and costs may be entitled under any law, agreement, vote of stockholders or disinterested directors or otherwise, both as to action in such indemnitee’s capacity as an officer, director, employee or agent of the Corporation and as to action in any other capacity.

(B)           Given that certain jointly indemnifiable claims (as defined below) may arise due to the service of the indemnitee as a director and/or officer of the Corporation or as a director, officer, employee, agent or trustee of another corporation or of a partnership, joint venture, trust or other enterprise at the request of the indemnitee-related entities (as defined below), the Corporation shall be fully and primarily responsible for the payment to the indemnitee in respect of indemnification or advancement of expenses in connection with any such jointly indemnifiable claims, pursuant to and in accordance with the terms of this Article IV, irrespective of any right of recovery the indemnitee may have from the indemnitee-related entities. Under no circumstance shall the Corporation be entitled to any right of subrogation against or contribution by the indemnitee-related entities and no right of advancement, indemnification or recovery the indemnitee may have from the indemnitee-related entities shall reduce or otherwise alter the rights of the indemnitee or the obligations of the Corporation under this Article IV. In the event that any of the indemnitee-related entities shall make any payment to the indemnitee in respect of indemnification or advancement of expenses with respect to any jointly indemnifiable claim, the indemnitee-related entity making such payment shall be subrogated to the extent of such payment to all of the rights of recovery of the indemnitee against the Corporation, and the indemnitee shall execute all papers reasonably required and shall do all things that may be reasonably necessary to secure such rights, including the execution of such documents as may be necessary to enable the indemnitee-related entities effectively to bring suit to enforce such rights. Each of the indemnitee-related entities shall be third-party beneficiaries with respect to this Section 4(B) of Article IV, entitled to enforce this Section 4(B) of Article IV.

For purposes of this Section 4(B) of Article IV, the following terms shall have the following meanings:

(1)         The term “indemnitee-related entities” means any corporation, limited liability company, partnership, joint venture, trust, employee benefit plan or other enterprise (other than the Corporation or any other corporation, limited liability company, partnership, joint venture, trust, employee benefit plan or other enterprise for which the indemnitee has agreed, on behalf of the Corporation or at the Corporation’s request, to serve as a director, officer, employee or agent and which service is covered by the indemnity described herein) from whom an indemnitee may be entitled to indemnification or advancement of expenses with respect to which, in whole or in part, the Corporation may also have an indemnification or advancement obligation.

(2)         The term “jointly indemnifiable claims” shall be broadly construed and shall include, without limitation, any action, suit or proceeding for which the indemnitee shall be entitled to indemnification or advancement of expenses from both the indemnitee-related entities and the Corporation pursuant to applicable law, any agreement, certificate of incorporation, by-laws, partnership agreement, operating agreement, certificate of formation, certificate of limited partnership or comparable organizational documents of the Corporation or the indemnitee-related entities, as applicable.

Section 5.     The rights conferred upon indemnitees in this Article IV shall be contract rights and such rights shall continue as to an indemnitee who has ceased to be a director or officer and shall inure to the benefit of the indemnitee’s heirs, executors and administrators. Any amendment, alteration or repeal of this Article IV that adversely affects any right of an indemnitee or its successors shall be prospective only and shall not limit, eliminate, or impair any such right with respect to any proceeding involving any occurrence or alleged occurrence of any action or omission to act that took place prior to such amendment or repeal.

Section 6.     The Corporation may purchase and maintain insurance, at its expense, to protect itself and any director, officer, employee or agent of the Corporation or another corporation, partnership, joint venture, trust or other enterprise against any expense, liability or loss, whether or not the Corporation would have the power to indemnify such person against such expense, liability or loss under the DGCL.

Section 7.     The Corporation may, to the extent authorized from time to time by the Board, grant rights to indemnification and to the advancement of expenses to any employee or agent of the Corporation to the fullest extent of the provisions of this Article IV with respect to the indemnification and advancement of expenses of directors and officers of the Corporation.

Article V.
CORPORATE BOOKS

The books of the Corporation may be kept inside or outside of the State of Delaware at such place or places as the Board may from time to time determine.

Article VI.
CHECKS, NOTES, PROXIES, ETC.

All checks and drafts on the Corporation’s bank accounts and all bills of exchange and promissory notes, and all acceptances, obligations and other instruments for the payment of money, shall be signed by such officer or officers or agent or agents as shall be authorized from time to time by the Board or such officer or officers who may be delegated such authority. Proxies to vote and consents with respect to securities of other corporations or other entities owned by or standing in the name of the Corporation may be executed and delivered from time to time on behalf of the Corporation by the Chairman of the Board, the Chief Executive Officer, or by such officers as the Chairman of the Board, Chief Executive Officer or the Board may from time to time determine.

Article VII.
SHARES AND OTHER SECURITIES OF THE CORPORATION

Section 1.     Certificated and Uncertificated Shares. The shares of the Corporation may be certificated or uncertificated, subject to the sole discretion of the Board and the requirements of the DGCL.

Section 2.     Signatures. Each certificate representing capital stock of the Corporation shall be signed by or in the name of the Corporation by any two authorized officers of the Corporation, which authorized officers shall include, without limitation, the Chairman of the Board, the Chief Executive Officer, the President, any Vice President, the Chief Financial Officer, the Secretary or any Assistant Secretary of the Corporation. Any or all of the signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent or registrar before such certificate is issued, such certificate may be issued by the Corporation with the same effect as if such person were such officer, transfer agent or registrar on the date of issue.

Section 3.     Lost, Destroyed or Wrongfully Taken Certificates.

(A)            If an owner of a certificate representing shares claims that such certificate has been lost, destroyed or wrongfully taken, the Corporation shall issue a new certificate representing such shares or such shares in uncertificated form if the owner: (i) requests such a new certificate before the Corporation has notice that the certificate representing such shares has been acquired by a protected purchaser; (ii) if requested by the Corporation, delivers to the Corporation a bond sufficient to indemnify the Corporation against any claim that may be made against the Corporation on account of the alleged loss, wrongful taking or destruction of such certificate or the issuance of such new certificate or uncertificated shares; and (iii) satisfies other reasonable requirements imposed by the Corporation.