Exhibit 2.1

EXECUTION VERSION

AGREEMENT AND PLAN OF MERGER

among

zURN WATER SOLUTIONS CORPORATION,

zebra merger sub, inc.,

elkay manufacturing company

and

ELKAY INTERIOR SYSTEMS INTERNATIONAL, INC.

February 12, 2022

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EXHIBITS

AGREEMENT AND PLAN OF MERGER

This AGREEMENT AND PLAN OF MERGER (this “Agreement”) is made as of February 12, 2022, by and among Zurn Water Solutions Corporation, a Delaware corporation (“Purchaser”), Zebra Merger Sub, Inc., a Delaware corporation and wholly owned Subsidiary of Purchaser (“Merger Sub”), Elkay Manufacturing Company, a Delaware corporation (the “Company”), and Elkay Interior Systems International, Inc., a Delaware corporation, as representative of the stockholders of the Company for certain purposes described in this Agreement (the “Stockholder Representative”). Purchaser, Merger Sub, the Company, and the Stockholder Representative are each sometimes referred to in this Agreement as a “Party,” and collectively as the “Parties.” Certain capitalized terms used in this Agreement have the meanings set forth in Article I.

RECITALS

WHEREAS, upon the terms and subject to the conditions set forth in this Agreement and in accordance with the Delaware General Corporation Law (the “DGCL”), Purchaser and Company have agreed to enter into a business combination transaction pursuant to which, at the Effective Time (as defined below), Merger Sub will merge with and into the Company (the “Merger”), the separate existence of Merger Sub shall cease, and the Company shall continue as the surviving corporation (the “Surviving Corporation”);

WHEREAS, the board of directors of the Company (the “Company Board”) has unanimously (a) determined that this Agreement and the transactions contemplated hereby, including the Merger (collectively, the “Transactions”), are fair to and in the best interests of the Company and its stockholders, (b) approved and declared advisable this Agreement and the Transactions, and (c) recommended adoption of this Agreement by the stockholders of the Company in accordance with the DGCL;

WHEREAS, the respective boards of directors of Purchaser and Merger Sub have unanimously (a) determined that this Agreement and the Transactions and in the case of the board of directors of Purchaser, the issuance of Purchaser Shares, are fair to and in the best interests of Purchaser, Merger Sub and their respective stockholders, as applicable, (b) approved and declared advisable this Agreement and the Transactions, in accordance with the DGCL, and (c) in the case of the board of directors of Purchaser (the “Purchaser Board”), recommended that the stockholders of Purchaser vote to approve the issuance of Purchaser Shares;

WHEREAS, as an inducement to the willingness of Purchaser to enter into the Transactions, the Company, with the consent of the requisite holders of Company Shares entitled to vote thereon, filed, and such certificate was declared effective as of February 9, 2022, that certain amendment to its certificate of incorporation (the “Company Certificate of Amendment”);

WHEREAS, as an inducement to the willingness of the Company and Purchaser to enter into the Transactions, concurrently with the execution and delivery of this Agreement, Purchaser and Mr. Ron Katz (the “Observer”) are entering into the Board Observer Agreement, which shall take effect as of the Closing;

WHEREAS, as an inducement to the willingness of Purchaser to enter into the Transactions, concurrently with the execution and delivery of this Agreement, each of those Company Stockholders set forth on Schedule 1.1 has entered into a Standstill and Lock-up Agreement with Purchaser (collectively, the “Investment Agreement”);

WHEREAS, promptly following the execution and delivery of this Agreement, those Company Stockholders set forth on Schedule 1.2 will enter into a Support Agreement in the form attached hereto as Exhibit A (each, a “Company Stockholder Support Agreement”);

WHEREAS, following the execution of this Agreement, the Company shall seek the Required Company Stockholder Approval, and Purchaser shall seek the Required Purchaser Stockholder Approval (each as hereinafter defined); and

WHEREAS, for U.S. federal Income Tax purposes, it is intended that the Merger shall qualify as a “reorganization” within the meaning of Section 368(a) of the Code and this Agreement shall constitute and be adopted as a “plan of reorganization” for purposes of Treasury Regulations Sections 1.368-2(g) and 1.368-3(a).

NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

Article I

DEFINITIONS

1.1           Definitions. The following terms shall have the following meanings for purposes of this Agreement:

“Accounting Firm” has the meaning set forth in Section 4.2(c).

“Accounting Principles” means the accounting methods, practices, principles, policies, conventions, methodologies, and procedures set forth on Schedule 1.3 hereto.

“Adjustment Deficit” has the meaning set forth in Section 4.2(d)(iv).

“Adjustment Escrow Shares Amount” means that number of shares of Purchaser Common Stock which, when valued at the Purchaser Share Price, has an aggregate value of Twenty Million Dollars ($20,000,000).

“Adjustment Statement” has the meaning set forth in Section 4.2(a).

“Affiliate” means, with respect to any specified Person, any other Person that, directly or indirectly, controls, is under common control with, or is controlled by such specified Person; provided, however, that (i) EIS shall not constitute an Affiliate of the Company, and the Company shall not constitute an Affiliate of EIS, in each case from and after the Spinoff, and (ii) none of EIS or, prior to the Closing, any Company Entity shall constitute Affiliates of Purchaser, and Purchaser shall not constitute an Affiliate of any of the foregoing. The term “control” (including its correlative meanings “under common control with” and “controlled by”) as used in the preceding sentence means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through ownership of securities or partnership or other interests, by Contract or otherwise.

“Affiliate Agreement” has the meaning set forth in Section 5.14(g).

“After-Tax Rate” means seventy-nine percent (79%).

“Aggregate Adjustment Cash Amount” means the aggregate amount of cash payable to the Company Stockholders in accordance with Sections 4.2(d) and 4.2(e) (if any), including, for the avoidance of doubt, any Estimated Cash Adjustment Amount deposited in escrow as of the Closing but released to the Company Stockholders following the Closing.

“Agreement” has the meaning set forth in the preamble to this Agreement.

“Anti-Corruption Laws” means all Laws relating to the prevention of corruption or bribery, including the U.S. Foreign Corrupt Practices Act of 1977 and the UK Bribery Act 2010.

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

“Antitrust Law” means any federal, state or foreign antitrust, competition, or trade regulation, statute, rule, regulation, Order, decree, administrative and judicial doctrine or other Law, that is designed or intended to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade or lessening of competition through merger or acquisition, including the Clayton Act, 15 U.S.C. §§ 12-27, as amended, and the HSR Act.

“Audited Carve-Out Financial Statements” means (i) the audited consolidated balance sheets of the Company’s “Water Solutions Business Unit” (as described therein) as of January 2, 2021 and December 28, 2019, and (ii) the related audited statements of income and retained earnings, stockholders’ equity and cash flow for the periods then ended (including the notes thereto).

“Authorized Action” has the meaning set forth in Section 12.2.

“Base Purchaser Share Amount” means Fifty Two Million, Five Hundred Thousand (52,500,000) shares of Purchaser Common Stock.

“Beneficial Owner”, with respect to an Equity Interest, has the meaning ascribed to such term under Rule 13d-3(a) promulgated under the Exchange Act, and the correlative terms “Beneficially Owned,” “Beneficially Owns” and “Beneficial Ownership” shall be construed accordingly.

“Benefit Plan” means (a) an “employee benefit plan” within the meaning of Section 3(3) of ERISA, other than a “multiemployer plan” as defined in Section 3(37) of ERISA, whether or not subject to ERISA, (b) a stock bonus, stock purchase, stock option, restricted stock, stock appreciation right or similar equity or equity-based plan or (c) any retirement or deferred compensation plan, incentive compensation plan, commission plan or arrangement, retention plan or agreement, unemployment compensation plan, vacation pay, change in control, severance pay, non-discretionary bonus or benefit arrangement, insurance or hospitalization program, flexible benefit plan, cafeteria plan, dependent care plan or any fringe benefit arrangements, whether pursuant to Contract, arrangement, custom or informal understanding, which does not constitute an employee benefit plan within the meaning of Section 3(3) of ERISA.

“Board Observer Agreement” means that agreement by and between Purchaser and Mr. Ron Katz, pursuant to which Mr. Ron Katz is granted rights as a board observer with respect to the Purchaser Board attached hereto as Exhibit B.

“Book-Entry Share” has the meaning set forth in Section 2.5(a).

“Business” means the business of the Company Entities, including the manufacture, sourcing, distribution and sale of water delivery solutions, which includes water fountains, bottle filling stations and water dispensers, as well as non-residential and residential sinks, faucets and accessories, and any other business performed by the Company Entities in the past year (but excluding the Spinoff Business).

“Business Day” means any day of the year other than (a) any Saturday or Sunday or (b) any other day on which banks located in New York, New York, Chicago, Illinois or Milwaukee, Wisconsin are authorized or required to be closed for business.

“CARES Act” means the Coronavirus Aid, Relief, and Economic Security Act (H.R. 748) as amended or restated from time to time.

“Cash and Cash Equivalents” means (i) the aggregate cash and cash equivalents of the Company Entities, including (x) all checks and drafts deposited for the account or in the possession of any Company Entity and all outstanding checks and deposits issued to the Company Entities (including checks-, cash- and wires-in-transit), and (y) any pending electronic funds transfers (EFTs) for the account of any of the Company Entities, (ii) the cash surrender value of the life insurance policy listed on Schedule 1.4, (iii) amounts due to the Company in respect of the settlement price of any commodity hedge or commodity derivative, and (iv) the absolute value of the Net Tax Amount, but only to the extent the Net Tax Amount is a negative number, in each case of clauses (i) through (iv), calculated as of the Determination Time in accordance with the Accounting Principles. For the avoidance of doubt, (a) Cash and Cash Equivalents shall (x) be reduced by issued or outstanding checks, drafts and wire payments and (y) not include any restricted cash or restricted cash equivalents and (b) the effects of the Transactions shall be disregarded for purposes of calculating Cash and Cash Equivalents.

“CERCLA” means the Comprehensive Environmental Response, Compensation, and Liability Act of 1980.

“Certificate” has the meaning set forth in Section 2.5(a).

“Certificate of Merger” has the meaning set forth in Section 2.2.

“Claim Notice” has the meaning set forth in Section 11.5(a).

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

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

“Code” means the United States Internal Revenue Code of 1986, as amended.

“Company” has the meaning set forth in the preamble to this Agreement.

“Company Benefit Plan” means each Benefit Plan that is sponsored or maintained by the Company or any of its ERISA Affiliates, to which the Company or any of its ERISA Affiliates is a party or in which the Company or any of its ERISA Affiliates participates, contributes to, or has any obligation to contribute to, or with respect to which the Company has or could have any Liability.

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

“Company Certificate of Amendment” has the meaning set forth in the Recitals.

“Company Common Stock” means the Company’s Class A, Class B, Class M, and Class N common stock, each class having a par value of $0.01 per share and which collectively constitute all of the issued and outstanding Equity Interests of the Company.

“Company Copyrights” means all registered and material unregistered Copyrights owned, or purported to be owned, by any Company Entity.

“Company Directors” has the meaning set forth in Section 2.8(a).

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

“Company Entities” means the Company and the Company Subsidiaries.

“Company Executive Retiree Health Plan” means the Elkay Manufacturing Company Executive Retiree Health Plan.

“Company Financial Statements” means the Audited Carve-Out Financial Statements and the Unaudited Carve-Out Financial Statements.

“Company Fundamental Representations” means the representations and warranties set forth in Section 5.1(a) and (c) (Organization of the Company), Section 5.2 (Authorization; Board Approval; Voting Requirements), Section 5.3 (Capitalization of the Company), Section 5.4 (Subsidiaries), Section 5.22 (Related Party Transactions) and Section 5.26 (Brokers).

“Company Indemnified Parties” has the meaning set forth in Section 11.3.

“Company Intellectual Property” means, collectively, the Company Owned Intellectual Property and the Company Licensed Intellectual Property.

“Company’s Knowledge” means the knowledge, upon reasonable due inquiry, of each of the individuals set forth on Schedule 1.5.

“Company Licensed Intellectual Property” means all Intellectual Property that any Person other than a Company Entity owns and that a Company Entity is permitted to use in the operation of the Business, whether or not used by such Company Entity as of the date hereof.

“Company Material Adverse Effect” means any event, change, occurrence, fact, condition, circumstance or development that, individually or in the aggregate, (i) has or would reasonably be expected to have a material adverse effect on the Business, or the financial condition or results of operations of the Company Entities taken as a whole or (ii) would or would reasonably be expected to have a material adverse effect on the ability of the Company Entities to consummate the Transactions or perform their respective obligations hereunder; provided, however, that solely in the case of clause (i), none of the following shall, either alone or in combination, constitute or be taken into account in determining whether a Company Material Adverse Effect has occurred (except in the case of clauses (a) through (e), to the extent that such event, change, occurrence, fact, condition, circumstance or development has a disproportionate impact on the Company Entities, taken as a whole, as compared to other participants engaged in the industries in which the Company Entities operate): (a) general economic, business, political, industry, trade or credit, financial or capital market conditions (whether in the United States or internationally), including any conditions affecting generally the industries or markets in which the Company Entities operate (including conditions affecting demand and the availability and pricing of raw materials and transportation), (b) earthquakes, tornados, hurricanes, floods, acts of God and other force majeure events, (c) any Public Health Event or Public Health Measure (or changes or developments in respect of the foregoing following the date of this Agreement, including loss of customers, suppliers, Contracts or business relationships resulting from such Public Health Event or Public Health Measure), (d) acts of war (whether declared or not declared), sabotage, terrorism, military actions or the escalation thereof, (e) any changes in Law, regulations or accounting rules after the date hereof, or any changes after the date hereof in the enforcement of any of the foregoing, (f) the taking by the Parties of any action expressly required by this Agreement or the Related Agreements or the taking of any action by any Company Entity at the express written request of Purchaser, (g) the negotiation, entry into or public announcement of this Agreement or pendency of the Transactions, including (i) any suit, action or Proceeding in connection with the Transactions, (ii) any actions taken by or losses of Employees, customers, suppliers or other counterparties of the Company Entities, including as a result of the identity of Purchaser, and (h) the failure by the Company Entities to meet any financial or operating projections, estimates, budgets or other performance metrics for any period prior to, on or after the date of this Agreement; provided, that this clause (h) shall not prevent or otherwise affect a determination that any event, change, occurrence, fact, condition, circumstance or development underlying such failure to meet projections, estimates, budgets or other performance metrics has resulted in, or contributed to, or would reasonably be expected to result in or contribute to, a Company Material Adverse Effect (to the extent such change or effect is not otherwise excluded from this definition of Company Material Adverse Effect).

“Company MIP” means the Company Management Incentive Plan.

“Company MTI” means the Strategic Mid-Term Incentive Plan of the Company, dated as of July, 2011.

“Company Net Cash” means the amount (if any) by which the Cash and Cash Equivalents exceeds the Indebtedness of the Company Entities, in each case calculated as of the Determination Time in accordance with the Accounting Principles. For the avoidance of doubt, if the Cash and Cash Equivalents is less than such Indebtedness, the Company Net Cash shall be zero (0).

“Company Net Indebtedness” means the amount (if any) by which the sum of the Cash and Cash Equivalents is less than the Indebtedness of the Company Entities, in each case calculated as of the Determination Time in accordance with the Accounting Principles. For the avoidance of doubt, if the Cash and Cash Equivalents exceeds such Indebtedness, the Company Net Indebtedness shall be zero (0).

“Company Nonqualified Plans” means the SERP, the Elkay Manufacturing Company Non-Qualified Deferred Compensation Plan and the Elkay Manufacturing Company Section 409A Non-Qualified Deferred Compensation Plan.

“Company Nonqualified Plans Indebtedness Amount” means an amount determined as of the Determination Time in accordance with the Accounting Principles equal to (i) the total amount of accrued benefits under the Company Nonqualified Plans multiplied by the After-Tax Rate, minus (ii) the total amount of any assets held in trust for the purpose of paying the benefits of such Company Nonqualified Plans, net of any taxes payable upon such assets upon withdrawal or liquidation, determined by applying the After-Tax Rate to such assets to the extent taxable.

“Company Owned Intellectual Property” means the Intellectual Property owned or purported to be owned by the Company Entities.

“Company Owned Software” means all Software owned, or purported to be owned, by the Company Entities.

“Company Patents” means the Patents owned, or purported to be owned, by the Company Entities.

“Company Real Property” has the meaning set forth in Section 5.11(b).

“Company Retention Bonus Agreements” means the retention bonus agreements entered into between the applicable Company Entity and those certain Employees set forth on Schedule 5.16(a), which provide for retention bonus payments to such employees within thirty (30) days of the earliest to occur of the closing of a change in control or initial public offering and September 1, 2022, subject, in each case, to the terms of the applicable agreement.

“Company Share” means a share of Company Common Stock.

“Company Solicitation Statement” has the meaning set forth in Section 8.3(a).

“Company Stockholder” means a holder of Company Common Stock.

“Company Stockholder Debtor” means a Company Stockholder to whom a Company Stockholder Loan has been made by the Company.

“Company Stockholder Loans” has the meaning set forth in Section 5.3(d).

“Company Stockholder Support Agreement” has the meaning set forth in the Recitals.

“Company Stockholder Written Consent Deadline” has the meaning set forth in Section 8.3(b).

“Company Subsidiaries” has the meaning set forth in Section 5.4(a).

“Company Systems” has the meaning set forth in Section 5.12(e).

“Company Tax Certificate” has the meaning set forth in Section 8.14(c).

“Company Tax Counsel” has the meaning set forth in Section 8.14(c) .

“Company Trademarks” means all registered or material unregistered Trademarks owned, or purported to be owned, by the Company Entities.

“Competing Transaction” has the meaning set forth in Section 8.9.

“Compliant” means, with respect to the Purchaser Financial Statements, the information contained therein, when taken as a whole, does not or will not, when furnished, contain any untrue statement of a material fact or omit to state any material fact necessary, in each case in order to make the Purchaser Financial Statements not misleading in light of circumstances in which made.

“Confidential Information” means any proprietary, trade secret, or other sensitive business information the disclosure of which could result in harm, financial loss, or competitive disadvantage.

“Confidentiality Agreement” means the confidentiality letter agreement, dated December 20, 2021, between the Company and Purchaser relating to the Transactions, as amended, restated, or otherwise modified from time to time.

“Consent” means a consent, authorization or approval of, or a filing or registration with, or waiver, license, permit, variance or exemption from, a Person.

“Continuing Employees” has the meaning set forth in Section 8.15(a).

“Contract” means any contract, agreement, lease, license, indenture, mortgage, note, bond, guaranty or other legally binding commitment, arrangement or understanding, whether written or oral, and any ancillary documents related thereto, such as purchase orders, sales orders, subscription agreements, statements of work, and amendments or addendums thereto.

“Copyright” has the meaning set forth in the definition of Intellectual Property.

“Counsel” has the meaning set forth in Section 13.16.

“Current Assets” means, without duplication, only those line items shown on Schedule 1.3 as current assets of the Company Entities and as determined as of the Determination Time in accordance with the Accounting Principles; provided, however, that such line items shall exclude, for the avoidance of doubt, Cash and Cash Equivalents and any current Income Tax assets and deferred Tax assets.

“Current Liabilities” means, without duplication, only those line items shown on Schedule 1.3 as current liabilities of the Company Entities and as determined as of the Determination Time in accordance with the Accounting Principles; provided, however, that such line items shall exclude, for the avoidance of doubt, any current Income Tax liabilities and deferred Income Tax liabilities.

“D&O Indemnified Person” has the meaning set forth in Section 8.7(a).

“D&O Tail” has the meaning set forth in Section 8.7(b).

“Data Privacy Requirements” has the meaning set forth in Section 5.12(g).

“Data Security Incident” has the meaning set forth in Section 5.12(g).

“Determination Time” means 12:01 a.m. Central Time on the Closing Date.

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

“Disclosure Schedules” means, collectively, the Company Disclosure Schedules and Purchaser Disclosure Schedules.

“Dispute Notice” has the meaning set forth in Section 11.5(a).

“Dispute Period” has the meaning set forth in Section 11.5(a).

“Dissenting Shares” has the meaning set forth in Section 2.7.

“Dollars” or numbers preceded by the symbol “$” mean amounts in U.S. Dollars.

“Effective Time” has the meaning set forth in Section 2.2.

“EIS” means, collectively, Elkay Interior Systems International, Inc. and all of its Subsidiaries as listed on Schedule 1.6 hereto.

“EIS Virginia Lease” means that certain Office Lease Agreement, dated as of May 31, 1996 (as amended), by and between TIP Owner, L.L.C. and Digney York Associates, LLC.

“Elkay Asia Tax Refund” has the meaning set forth in Section 11.6(b).

“Employees” means, as of any time of determination, those individuals employed by the Company Entities at such time.

“Enforceability Limitations” means limitations on enforcement and other remedies imposed by or arising under applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other similar Laws relating to or affecting creditors’ rights generally or the availability of injunctive relief and other equitable remedies.

“Environmental Claim” means any and all administrative or judicial Orders, Liens, or Proceedings, whether criminal, regulatory, administrative or civil, pursuant to or relating to any applicable Environmental Law or Environmental Permit.

“Environmental Law” means any applicable Laws or provisions in any Real Property Lease concerning the protection of human health from pollution or Hazardous Substances or protection of the environment (including ambient or indoor air, surface water, groundwater, sediment, land, surface or subsurface strata, and natural resources or worker health and safety), including Laws (a) imposing Liability in connection with Releases of Hazardous Substances, including the cleanup, investigation or remediation relative to any Release or threatened Release, (b) relating to worker health and safety, including exposure to Hazardous Substances and (c) otherwise relating to the manufacture, processing, packaging, labeling, reporting, distribution, use, treatment, storage, disposal, recycling, emission, Release, transport, registration, or handling of or exposure to Hazardous Substances (including products containing Hazardous Substances).

“Environmental Permit” means any Permit required by or issued pursuant to any Environmental Law.

“Equity Interests” means (a) shares of capital stock, limited liability company membership interests, partnership interests or other equity interests of an entity, as applicable, and (b) any options, warrants, phantom stock, convertible notes or other securities exercisable for or convertible into any of the securities described in clause (a).

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

“ERISA Affiliate” means, with respect to any Person, any corporation, trade or business which, together with such Person, is a member of a controlled group of corporations or a group of trades or businesses under common control within the meaning of Sections 414(b) or (c) of the Code.

“Escrow Agent” has the meaning set forth in Section 2.6.

“Escrow Agreement” has the meaning set forth in Section 2.6.

“Escrow Dividends” has the meaning set forth in Section 2.6(c).

“Escrow Shares” means the Purchaser Common Stock included in the Adjustment Escrow Shares Amount and the Indemnity Shares Amount, but only for so long as they are held in escrow pursuant to the Escrow Agreement and have not been released to the Exchange Agent for disbursement to the Company Stockholders, or to Purchaser in satisfaction of amounts owed pursuant to Section 4.2(d) or 11.2, as applicable.

“Estimated Adjustment Cash Amount” means (i) if the Estimated Net Adjustment Amount is a positive number, an amount in cash equal to the Estimated Net Adjustment Amount, and (ii) if the Estimated Net Adjustment Amount is a negative number, the Estimated Adjustment Cash Amount shall be zero (0).

“Estimated Adjustment Shares Amount” means (i) if the Estimated Net Adjustment Amount is a negative number, that number of shares of Purchaser Common Stock (which shall be deemed to be a positive number such that it reduces the Per Share Closing Stock Amount) equal to the absolute value of the Estimated Net Adjustment Amount divided by the Purchaser Share Price, and (ii) if the Estimated Net Adjustment Amount is a positive number, the Estimated Adjustment Shares Amount shall be zero (0).

“Estimated Adjustment Statement” has the meaning set forth in Section 4.1(a).

“Estimated Net Adjustment Amount” has the meaning set forth in Section 4.1(a).

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

“Exchange Agent” has the meaning set forth in Section 3.1.

“Exchange Agent Agreement” has the meaning set forth in Section 3.1.

“Exchange Fund” has the meaning set forth in Section 3.1.

“Final Net Adjustment Amount” means the Net Adjustment Amount, as finally determined pursuant to Section 4.2.

“Foreign Official” means (i) any official, officer or employee of a foreign Governmental Authority, or any department, agency, instrumentality (including state owned or controlled entities) or public company, of a public international organization, members of a royal family, or any person acting in an official capacity for or on behalf of any such Governmental Authority, department, agency or instrumentality, or for or on behalf of a public international organization, or family members thereof, (ii) candidate for foreign public office, foreign political party or foreign political campaign, or (iii) any foreign political party or official or family members thereof.

“Form S-4” has the meaning set forth in Section 6.5(a).

“FTC” means the Federal Trade Commission.

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

“Governmental Authority” means any federal, state, provincial, local, foreign or supra-national government or other political subdivision thereof, or any multinational organization or authority, or any entity, body, authority, agency, commission, court, tribunal or judicial body entitled to exercise executive, legislative, judicial, regulatory, arbitral, police or administrative law functions or power, including quasi-governmental, self-regulated or private entities established to perform such functions.

“Hazardous Substance” means petroleum, petroleum hydrocarbons or petroleum products, petroleum by-products, radioactive materials, asbestos or asbestos-containing materials, gasoline, diesel fuel, pesticides, radon, urea formaldehyde, lead or lead-containing materials, polychlorinated biphenyls, per- and polyfluoroalkyl substances, including PFOA, PFOS and GenX, or any material, chemical, waste or substance in any amount or concentration that it is regulated or controlled as a “hazardous substance,” “hazardous material,” “toxic substance”, “pollutant,” “contaminant” or “hazardous waste” under or for which Liability can be imposed or result any applicable Environmental Law.

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

“Income Taxes” means Taxes imposed on or measured by or determined with reference to gross or net income (however denominated) (but not including, for the avoidance of doubt, any withholding, sales, use, real or personal property, transfer or similar Taxes).

“Indebtedness” means, with respect to any Person, without duplication, the principal, accrued and unpaid interest and any prepayment premiums, penalties or other fees and expenses, and any expense reimbursement or other payment obligations, in each case determined as of the Determination Time in accordance with the Accounting Principles, in respect of (a) all indebtedness of such Person for borrowed money (including the JPMorgan Credit Facility), loans or advances or indebtedness issued in substitution or exchange for borrowed money or for the deferred purchase price of property or services (but excluding any current trade payables or similar obligations), (b) all obligations evidenced by notes, bonds, debentures or other similar instruments, (c) all obligations under conditional sale, consignment, retention or similar arrangements relating to property acquired, including earn-out payments, holdback and escrows, (d) all reimbursement, payment or similar obligations, contingent or otherwise, under any banker’s acceptance, letter of credit or similar facility, in each case, solely to the extent drawn upon, (e) all obligations under surety bonds and performance bonds, in each case, solely to the extent drawn upon, (f) all obligations under any interest rate or currency derivative, foreign exchange contracts, hedging, swap or similar instrument, (g) the Company’s liability in respect of the settlement price of any commodity hedge or commodity derivative, (h) all indebtedness of others secured by (or for which the holder of such indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien on property owned or acquired by such Person, whether or not the indebtedness secured thereby has been assumed, (i) all capital lease obligations, (j) the Company Nonqualified Plans Indebtedness Amount and the Phantom Stock Amount, (k) the aggregate amount of any compensation payable to Ronald C. Katz in respect of employment compensation, board services or other services rendered to the Company Entities with respect to periods prior to the Closing, (l) outstanding severance or other compensatory payments arising prior to the Closing with respect to the Persons set forth on Schedule 5.16(a) and outstanding severance, board fees or other compensatory payments to other Persons otherwise arising out of any termination of any Employee or director during the period beginning on the date hereof and ending on the Closing Date at the Effective Time (but excluding, for purposes of this clause (l), the Permitted M/N Grant and without double counting any obligation accrued as a Current Liability in connection with Net Working Capital), (m) the Net Tax Amount, but only to the extent the Net Tax Amount is a positive number, (n) any amounts deferred pursuant to the CARES Act or IRS Notices 2020-65 or 2021-11, (o) the Transaction Costs, (p) the aggregate amount of any customer deposits, (q) the aggregate amount of any outstanding intercompany obligations owed to or by any Company Entity, on the one hand, and to or from EIS on the other hand (but excluding, for the avoidance of doubt, the guaranty by the Company of the EIS Virginia Lease), (r) the aggregate amount of any outstanding dividends payable to Company Stockholders in respect of Company Shares (excluding, for the avoidance of doubt, any dividends payable to Company Stockholders hereunder in respect of the Purchaser Shares), (s) all accrued liabilities under the Company MTI, (t) those certain liabilities set forth on Schedule 1.7, (u) Transfer Taxes allocable to Company Stockholders under Section 8.14(g), and (v) all Liabilities of any other Person described in clauses (a) through (u) above that such first Person has, directly or indirectly, guaranteed or assumed, or that is otherwise such first Person’s legal obligation.

“Indemnification Shares” has the meaning set forth in Section 11.5(f).

“Indemnified Party” means a Purchaser Indemnified Party or a Company Indemnified Party, as applicable.

“Indemnifying Party” has the meaning set forth in Section 11.5(a).

“Indemnity Notice” has the meaning set forth in Section 11.5(e).

“Indemnity Shares Amount” means that number of shares of Purchaser Common Stock which, when valued at the Purchaser Share Price, has an aggregate value of Twenty-Five Million Dollars ($25,000,000).

“Intellectual Property” means all registered and unregistered intellectual property or other proprietary rights anywhere in the world, including: (a) patents, patent applications, patent disclosures, inventions (whether patentable or not and whether or not reduced to practice), registered designs, industrial models, industrial designs, utility models, certificates of invention, designs (“Patents”), (b) registered and unregistered trademarks, service marks, corporate names, trade names, service names, brand names, product names, slogans, logos, trade dress and Internet domain names, social media names, “tags” and “handles,” and other source indicators, together with the goodwill exclusively associated with any of the foregoing (“Trademarks”), (c) copyrights, copyrighted works, and copyrightable works, works of authorship, whether published or unpublished, including all website content and code, documentation, advertising copy, marketing materials, mask works, product packaging, specifications, translations, drawings, graphics, database rights, Software, and moral rights (“Copyrights”), (d) registrations and applications, provisionals, continuations, continuations-in-part, divisionals, re-examinations, reissues, renewals, foreign counterparts, and similar rights for any of the foregoing in clauses (a) through (c), (e) Know-How, (f) royalties, fees, income, payments, and other proceeds now or hereafter due or payable with respect to any of the foregoing, and (g) claims, causes of action, and remedies including claims for damages, restitution, and injunctive or other legal or equitable relief against past, present, and future infringement, misappropriation, or other violation relating to any of the foregoing.

“Interim Balance Sheet” has the meaning set forth in the definition of Unaudited Carve-Out Financial Statements, and “Interim Balance Sheet Date” means the date of the Interim Balance Sheet.

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

“JPMorgan Credit Facility” means that certain Credit Agreement, dated as of December 16, 2021, by and among the Company, the lenders from time to time party thereto, JPMorgan Chase Bank, N.A., as Administrative Agent, Citibank, N.A., as Syndication Agent and BMO Harris Bank N.A., HSBC Bank USA, National Association and PNC Bank, National Association, as Co-Documentation Agents.

“Know-How” means trade secrets and all other confidential or proprietary information, know-how, discoveries, improvements, formulae (including product formulations), practices, processes, procedures, ideas, specifications, proposals, models, methodologies, inventor’s notes, designs, plans, business and marketing plans, market know-how and customer lists and information, technical and engineering data, databases, and data collections.

“Law” means any law (including common law), statute, standard, resolution, regulation or promulgation, ordinance, rule, code, constitution, treaty, requirement or rule of law enacted, promulgated, issued, released or imposed by any Governmental Authority, or any Order, or any license, franchise, Permit or similar right granted under any of the foregoing, or any similar provision or duty or obligation having the force or effect of law.

“Leased Real Property” has the meaning set forth in Section 5.11(b).

“Letter of Transmittal” has the meaning set forth in Section 3.2(a).

“Liability” means any debt, liability, commitment or obligation of any nature, whether pecuniary or not, asserted or unasserted, accrued or unaccrued, absolute or contingent, matured or unmatured, liquidated or unliquidated, determined or determinable or otherwise, incurred or consequential, known or unknown and whether due or to become due, including those arising under any Contract, Law or Order.

“Lien” means any lien, mortgage, pledge, charge, security interest, imperfection of title, encroachment, lease, license, easement, right-of-way, covenant, condition, restriction, adverse claim or other encumbrance.

“Lookback Date” means January 1, 2019.

“Losses” means any loss, Liability, damage, fine, fee, penalty, deficiency, Tax or expense (including interest, court costs, fees of attorneys, accountants and other experts or other expenses of litigation or other Proceedings or of any claim, default or assessment or pursuit of rights to indemnification).

“Management Stock Plan” means the amended and restated Management Stock Purchase Plan of Elkay Manufacturing Company, originally adopted on March 25, 1985, as amended.

“Material Contracts” has the meaning set forth in Section 5.14.

“Material Customer” has the meaning set forth in Section 5.13(a).

“Material Supplier” has the meaning set forth in Section 5.13(b).

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

“Merger Consideration” has the meaning set forth in Section 2.5(a).

“Merger Sub” has the meaning set forth in the preamble to this Agreement.

“Multiemployer Plan” has the meaning set forth in Section 3(37) of ERISA.

“Net Adjustment Amount” means an amount (which shall be negative if clause (ii) exceeds clause (i); provided that, for the avoidance of doubt, clause (i) and clause (ii) shall each be positive numbers) equal to:

(i)           the sum of (A) if the Net Working Capital exceeds the Working Capital Ceiling, the amount by which the Net Working Capital exceeds the Working Capital Ceiling (which, for the avoidance of doubt, will equal zero (0) if the Net Working Capital does not exceed the Working Capital Ceiling) plus (B) the amount of the Company Net Cash (if any), minus

(ii)          the sum of (x) if the Net Working Capital is less than the Working Capital Floor, the amount by which the Net Working Capital is less than the Working Capital Floor (which, for the avoidance of doubt, will equal zero (0) if the Net Working Capital is not less than the Working Capital Floor) plus (y) the amount of the Company Net Indebtedness (if any);

provided, that notwithstanding anything to the contrary contained herein, if the Net Working Capital amount is greater than or equal to the Working Capital Floor, but less than or equal to the Working Capital Ceiling, clauses (i)(A) and (ii)(x) of this definition, as applicable, will equal zero (0).

“Net Tax Amount” means, with respect to the Company Entities, the excess (if any) of (a) the amount of the Company Entities’ accrued Income Taxes with respect to any Tax Return related to a Pre-Closing Tax Period with an original due date (including applicable extensions) after the Closing Date (calculated in a manner consistent with Section 8.14(f)), which for the avoidance of doubt shall not be reduced by any amount included in clause (b), over (b) any estimated Income Tax payments made by or on behalf of the Company Entities with respect to such Taxes. For the avoidance of doubt, the calculation of the “Net Tax Amount” can be a negative number.

“Net Working Capital” means an amount equal to Current Assets minus Current Liabilities, in each case as calculated in accordance with the Accounting Principles, as illustrated in the calculation set forth on Schedule 1.3.

“Notice of Acceptance” has the meaning set forth in Section 4.2(b)(i).

“Notice of Disagreement” has the meaning set forth in Section 4.2(b)(ii).

“NYSE” means the New York Stock Exchange.

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

“Order” means any order, writ, judgment, decree, injunction, stipulation, settlement, award or consent order of or with any Governmental Authority.

“Open Source Software” has the meaning set forth in Section 5.12(f).

“Organizational Documents” means the certificate or articles of incorporation, certificate of formation, bylaws, limited liability company agreement, shareholders agreement or voting agreement among equity owners, and other governing documents of an entity, as applicable, in each case as amended.

“Outside Date” has the meaning set forth in Section 10.1(b)(i).

“Owned Real Property” has the meaning set forth in Section 5.11(a).

“Party” and “Parties” have the meanings set forth in the preamble to this Agreement.

“Patent” has the meaning set forth in the definition of Intellectual Property.

“Per Share Amount” means, with respect to each Company Share outstanding as of the Closing Date immediately prior to the Effective Time (after giving effect to any repurchases and net exercises under the Management Stock Plan), the Per Share Stock Amount for such Company Share, plus the Per Share Cash Amount for such Company Share, if any.

“Per Share Cash Amount” means, with respect to each Company Share outstanding as of the Closing Date immediately prior to the Effective Time (after giving effect to all repurchases and net exercises under the Management Stock Plan), an amount of cash equal to:

(i)           the Aggregate Adjustment Cash Amount; divided by

(ii)          the total number of outstanding Company Shares as of the Closing Date immediately prior to the Effective Time (and assuming, for the avoidance of doubt, all repurchases and net exercises under the Management Stock Plan have occurred).

“Per Share Closing Stock Amount” means, with respect to each Company Share outstanding as of the Closing Date immediately prior to the Effective Time (after giving effect to all repurchases and net exercises under the Management Stock Plan), that number of shares of Purchaser Common Stock equal to:

(i)           (A) the Base Purchaser Share Amount, minus (B) the Estimated Adjustment Shares Amount, minus (C) the Adjustment Escrow Shares Amount, minus (D) the Indemnity Shares Amount; divided by

(ii)          the total number of outstanding Company Shares as of the Closing Date immediately prior to the Effective Time (and assuming, for the avoidance of doubt, all repurchases and net exercises under the Management Stock Plan have occurred).

“Per Share Post-Closing Stock Adjustment Amount” means, with respect to each Company Share outstanding as of the Closing Date immediately prior to the Effective Time, that number of shares of Purchaser Common Stock equal to:

(i)           the Post-Closing Adjustment Shares Amount; divided by

(ii)          the total number of outstanding Company Shares as of the Closing Date immediately prior to the Effective Time (and assuming, for the avoidance of doubt, all repurchases and net exercises under the Management Stock Plan have occurred).

“Per Share Stock Amount” means, with respect to each Company Share outstanding as of the Closing Date immediately prior to the Effective Time (after giving effect to all repurchases and net exercises under the Management Stock Plan), the Per Share Closing Stock Amount for such Company Share, plus the Per Share Post-Closing Stock Adjustment Amount for such Company Share, if any.

“Permit” means any permit, license, approval, registration or other authorization required to be obtained by any Governmental Authority.

“Permitted Liens” means (a) Liens for or in respect of Taxes or other governmental charges that are either (i) not yet due and payable, or (ii) that are being contested in good faith by appropriate Proceedings and for which an adequate and specific reserve has been established in accordance with GAAP, (b) workers’, mechanics’, materialmen’s, repairmen’s, suppliers’, carriers’, tenants’ or similar Liens arising in the ordinary course of business with respect to obligations that are not yet due and payable, (c) all covenants, conditions, restrictions (including any zoning, entitlement, conservation, restriction and other land use and environmental regulations by Governmental Authorities), easements, charges, rights-of-way, and other Liens that, individually or in the aggregate, do not materially impair the use or materially detract from the value of the real property affected thereby, (d) Liens of lessors arising under any Real Property Lease that individually or in the aggregate, do not materially impair the use of the real property affected thereby; (e) Liens that affect the underlying fee interest of any Leased Real Property that individually or in the aggregate, do not materially impair the use of the real property affected thereby; (f) all other Liens on tangible personal property that, individually or in the aggregate, do not materially impair the use or materially detract from the value of the property subject to such Liens or the use of such property in the Business and (g) solely with respect to Equity Interests, restrictions on transfer imposed under applicable securities Laws.

“Permitted M/N Option Grants” has the meaning set forth in Section 8.23.

“Person” means any individual, corporation, limited liability company, partnership, joint venture, trust, Governmental Authority or other legal entity.

“Personal Data” means any information that identifies, relates to, describes, is capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular natural person or household.

“Phantom Stock Amount” means, without duplication of amounts included in clause (i) of the definition of Indebtedness, the aggregate amount payable, upon redemption, to the holders of phantom stock pursuant to the Phantom Stock Plan

“Phantom Stock Plan” means the Phantom Stock Plan of Elkay Manufacturing Company, effective as of March 16, 2016.

“Post-Closing Adjustment Amount” means the amount (which shall be negative if clause (ii) exceeds clause (i)) equal to the (i) Final Net Adjustment Amount minus (ii) the Estimated Net Adjustment Amount.

“Post-Closing Adjustment Shares Amount” means the aggregate number of shares of Purchaser Common Stock issuable to the Company Stockholders in accordance with Section 4.2(d) (if any).

“Post-Closing Company-Prepared Income Tax Return” has the meaning set forth in Section 8.14(c).

“Pre-Closing Tax Period” means (a) any taxable period ending on or before the Closing Date and (b) with respect to a Straddle Period, any portion thereof ending on the Closing Date.

“Pre-Closing Taxes” means, (a) with respect to a Pre-Closing Tax Period, without duplication of any amount included in the Final Net Adjustment Amount, (i) all Income Taxes with respect to any Company Entity with respect to any Pre-Closing Tax Period (calculated in accordance with Section 8.14(d)), (ii) any Income Taxes of any member of any consolidated, combined or unitary or aggregate group of which any Company Entity is or has been a member on or prior to the Closing Date, including pursuant to Treasury Regulation Section 1.1502-6 (or any corresponding or similar provision of state, local or foreign Tax Law) and (iii) any and all Income Taxes of any Person (other than any Company Entity) imposed on any Company Entity as transferee or successor, by assumption, operation of Law, Contract or otherwise (including any Tax sharing agreement), (b) any expected Tax Refund included in Cash or Cash Equivalents in the Final Net Adjustment Amount, to the extent (i) any such Tax Refund is not received from the IRS, Treasury or other appropriate Governmental Authority before the second (2^nd) anniversary of the Closing Date or (ii) notice is received from the IRS, Treasury, Congressional Joint Committee on Taxation, or other appropriate Governmental Entity that such Tax Refund is being rejected or challenged, and (c) the total amount of withholding Taxes that must be remitted by the Company Entities, as well as the employer portion of such Taxes, with respect to the exercise of the Permitted M/N Option Grants immediately prior to the Closing (to the extent not accrued as a Transaction Cost).

“Privileged Communications” has the meaning set forth in Section 13.16.

“Pro Rata Portion” means, with respect to each Company Stockholder, an amount equal to the quotient obtained by dividing (a) the number of total outstanding Company Shares held by such Company Stockholder as of the Closing Date immediately prior to the Effective Time (and assuming, for the avoidance of doubt, all repurchases and net exercises under the Management Stock Plan have occurred) by (b) the total number of outstanding Company Shares held by all Company Stockholders as of the Closing Date immediately prior to the Effective Time (and assuming, for the avoidance of doubt, all repurchases and net exercises under the Management Stock Plan have occurred).

“Proceeding” means an action, cause of action, including administrative actions, claim, suit, arbitration, proceeding, audit, hearing, examination, investigation or other litigation (whether in law or in equity and whether civil, criminal, administrative or investigative) controversy, assessment, grievance, inquiry, mediation, charge, complaint, demand, notice or notices of violations to, from, by or before any Governmental Authority or any mediator, including any charge or complaint filed with the National Labor Relations Board or the Equal Employment Opportunity Commission..

“Prohibited Party” has the meaning set forth in Section 5.25(b)(ii).

“Proposed Adjustment” has the meaning set forth in Section 4.2(b)(ii).

“Proxy Statement” has the meaning set forth in Section 8.2(a).

“Public Health Event” means any disease outbreak, epidemic, pandemic or plague, regardless of stage, including the outbreak or escalation of the novel coronavirus disease, COVID-19 virus (SARS-COV-2 and related strains and sequences) or mutation (or antigenic shift) thereof or a public health emergency resulting therefrom, in each case, as declared by a Governmental Authority.

“Public Health Measures” means any quarantine, “shelter in place,” “stay at home,” workforce reduction, social distancing, shut down, closure, sequester or any other Law, Order, action, directive, guidelines or recommendations by any Governmental Authority in connection with or in response to a Public Health Event.

“Purchaser” has the meaning set forth in the preamble to this Agreement.

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

“Purchaser Change in Recommendation” has the meaning set forth in Section 8.5(b).

“Purchaser Common Stock” means the common stock, par value $0.01 of Purchaser.

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

“Purchaser Financial Advisor” has the meaning set forth in Section 6.22.

“Purchaser Financial Statements” means the financial statements of Purchaser set forth in Purchaser’s most recent Form 10-K and most recent Form 10-Q filed on the SEC’s EDGAR database.

“Purchaser Fundamental Representations” means the representations and warranties set forth in Sections 6.1(a) and 6.1(c) (Organization of Purchaser and Merger Sub), Section 6.2 (Authorization; Board Approval; Voting Requirements), Section 6.3 (Capitalization of Purchaser and Merger Sub) and Section 6.24 (Reorganization).

“Purchaser Indemnified Parties” has the meaning set forth in Section 11.2(a).

“Purchaser Intellectual Property” means, collectively the Purchaser Owned Intellectual Property and the Purchaser Licensed Intellectual Property.

“Purchaser Intervening Event” means a fact, circumstance, condition, development, change, event, occurrence or effect that is material to Purchaser and its Subsidiaries, taken as a whole, which was not known by, or if known, the effect of which was not reasonably foreseeable by, the Purchaser Board as of or prior to the date hereof, and which becomes known to the Purchaser Board prior to the Required Purchaser Stockholder Approval; provided, however, that none of the following shall constitute, be deemed to contribute to, or otherwise be taken into account in determining whether there has been a Purchaser Intervening Event: (A) any changes in the market price or trading volume of Company Shares or Purchaser Common Stock, in and of itself; and (B) the fact that, in and of itself, Purchaser or any of its Subsidiaries exceeds any internal or published projections, forecasts, estimates or predictions in respect of revenues, earnings or other financial or operating metrics for any period ending after the date of this Agreement (it being understood that the underlying facts giving rise or contributing to events described in clauses (A) and (B) may be taken into account in determining whether there has been a Purchaser Intervening Event if such facts are not otherwise excluded under this definition).

“Purchaser’s Knowledge” means the knowledge, following due inquiry of those persons set forth on Schedule 1.8.

“Purchaser Leased Real Property” has the meaning set forth in Section 6.8(b).

“Purchaser Licensed Intellectual Property” means all Intellectual Property that any Person other than Purchaser owns and that Purchaser is permitted to use in the operation of its business, whether or not used by Purchaser as of the date hereof.

“Purchaser Material Adverse Effect” means any event, change, occurrence, fact, condition, circumstance or development that, individually or in the aggregate, (i) has or would reasonably be expected to have a material adverse effect on the business or the financial condition or results of operations of Purchaser and its Subsidiaries taken as a whole, or (ii) would or would reasonably be expected to have a material adverse effect on the ability of Purchaser to consummate the Transactions or perform its obligations hereunder; provided, however, that solely in the case of clause (i), none of the following shall, either alone or in combination, constitute or be taken into account in determining whether a Purchaser Material Adverse Effect has occurred (except in the case of clauses (a), through (e), to the extent that such event, change, occurrence, fact, condition, circumstance or development has a disproportionate impact on Purchaser and its Subsidiaries, taken as a whole, as compared to other participants engaged in the industries in which Purchaser operates): (a) general economic, business, political, industry, trade or credit, financial or capital market conditions (whether in the United States or internationally), including any conditions affecting generally the industries or markets in which Purchaser and its Subsidiaries operate (including conditions affecting demand and the availability and pricing of raw materials and transportation), (b) earthquakes, tornados, hurricanes, floods, acts of God and other force majeure events, (c) any Public Health Event or Public Health Measure (or changes or developments in respect of the foregoing following the date of this Agreement, including loss of customers, suppliers, Contracts or business relationships resulting from such Public Health Event or Public Health Measure), (d) acts of war (whether declared or not declared), sabotage, terrorism, military actions or the escalation thereof, (e) any changes in Law, regulations or accounting rules after the date hereof, or any changes after the date hereof in the enforcement of any of the foregoing, (f) the taking by the Parties of any action expressly required by this Agreement or the Related Agreements or the taking of any action by Purchaser at the express written request of the Company, (g) the negotiation, entry into or public announcement of this Agreement or pendency of the Transactions, including (i) any suit, action or Proceeding in connection with the Transactions, (ii) any actions taken by or losses of employees, customers, suppliers or other counterparties of Purchaser or its Subsidiaries, including as a result of the identity of the Company, and (h) the failure by Purchaser or its Subsidiaries to meet any financial or operating projections, estimates, budgets or other performance metrics for any period prior to, on, or after the date of this Agreement; provided, that this clause (h) shall not prevent or otherwise affect a determination that any event, change, occurrence, fact, condition, circumstance or development underlying such failure to meet projections, estimates, budgets or other performance metrics has resulted in, or contributed to, or would reasonably be expected to result in or contribute to, a Purchaser Material Adverse Effect (to the extent such change or effect is not otherwise excluded from this definition of Purchaser Material Adverse Effect).

“Purchaser Material Contract” has the meaning set forth in Section 6.10.

“Purchaser Owned Intellectual Property” means the Intellectual Property owned or purported to be owned by Purchaser or any of its Subsidiaries.

“Purchaser Owned Real Property” has the meaning set forth in Section 6.8(a).

“Purchaser Plans” has the meaning set forth in Section 8.15(b).

“Purchaser Real Property” has the meaning set forth in Section 6.8(b).

“Purchaser Real Property Lease” has the meaning set forth in Section 6.8(b).

“Purchaser Recommendation” means a recommendation by the Purchaser Board to the Purchaser Stockholders that the Purchaser Stockholders entitled to vote thereon approve the issuance of the Purchaser Shares.

“Purchaser Record Date” has the meaning set forth in Section 8.5(a).

“Purchaser SEC Documents” has the meaning set forth in Section 6.23(a).

“Purchaser Share” means a share of Purchaser Common Stock issued pursuant to the terms of this Agreement; provided, that the Escrow Shares shall not constitute Purchaser Shares unless and until released from escrow in accordance with this Agreement and the Escrow Agreement for disbursement to the Company Stockholders.

“Purchaser Share Price” means the volume weighted average price, rounded to four decimal points, of a share of Purchaser Common Stock in the period starting on the tenth (10^th) consecutive full trading day prior to the Effective Time and ending on the second (2^nd) full trading day prior to the Effective Time.

“Purchaser Stockholders” means the holders of Purchaser Common Stock as of the Purchaser Record Date.

“Purchaser Stockholders Meeting” has the meaning set forth in Section 8.5(a).

“Purchaser Subsidiaries” has the meaning set forth in Section 6.4(a).

“Purchaser Tax Certificate” has the meaning set forth in Section 8.14(c).

“Purchaser Termination Fee” has the meaning set forth in Section 10.2(b).

“R&W Insurance Policy” means a buy-side insurance policy, issued by QBE Insurance Corporation, with respect to the representations and warranties of the Company in this Agreement and any Related Agreements.

“Real Property Lease” has the meaning set forth in Section 5.11(b).

“Registration Rights Agreement” has the meaning set forth in Section 3.9(e).

“Related Agreement” means any Contract that is to be entered into at the Closing or otherwise pursuant to this Agreement on or prior to the Closing Date, including the Company Stockholder Support Agreements, the Investment Agreement, the Registration Rights Agreement, the Exchange Agent Agreement, the Escrow Agreement, the Board Observer Agreement and the Spinoff Documents. The Related Agreements executed by a specified Person shall be referred to as “such Person’s Related Agreements,” “its Related Agreements,” or other similar expression.

“Related Party” means (a) each Affiliate of a Company Entity, (b) each individual who is an officer or director of a Company Entity, (c) each holder of Company Shares who owns of record in excess of five percent (5%) of the outstanding Company Common Stock, (d) each member of the immediate family of each of the individuals referred to in clauses (a) or (b)  above, as applicable; and (e) any trust or other entity (other than a Company Entity) in which any one of the individuals referred to in clauses (a), (b), (c) and (d) above holds (or in which more than one of such individuals collectively hold), beneficially or otherwise, a material voting, proprietary, equity or other financial interest.

“Release” means any spill, emission, leaking, pumping, pouring, emptying, leaching, escaping, migrating, dumping, injecting, disposal or discharging of any Hazardous Substance into the environment.

“Released Party” has the meaning set forth in Section 8.24.

“Releasing Party” has the meaning set forth in Section 8.24.

“Remedial Action” means any action that is required under any Environmental Law or by a Governmental Authority to (a) investigate, clean up, remediate, remove, respond to, treat or in any other way address a Release, or a threat of Release, into the environment, including the performance of required studies, investigations, restoration or monitoring, or (b) assess or restore the environment or natural resources.

“Representatives” means with respect to any Person, such Person’s Affiliates and its and their respective directors, officers, managers, employees, agents, representatives, attorneys, insurance providers, investment bankers and other advisors.

“Required Company Stockholder Approval” has the meaning set forth in Section 5.2(c).

“Required Purchaser Stockholder Approval” means the affirmative vote at the Purchaser Stockholders Meeting or any adjournment or postponement thereof at which a quorum is present of the holders of a majority of Purchaser Common Stock entitled to vote, present in person or represented by proxy, approving the issuance of the Purchaser Shares in connection with the Merger.

“Restraints” has the meaning set forth in Section 9.1(e).

“Review Period” has the meaning set forth in Section 4.2(b).

“S-4 Effective Date” has the meaning set forth in Section 8.2(d).

“Sanctioned Countries” has the meaning set forth in Section 5.25(b)(i).

“SDN” has the meaning set forth in Section 5.25(b)(ii).

“SEC” means the Securities and Exchange Commission.

“Section 280G of the Code” has the meaning set forth in Section 8.16.

“Section 280G Payment” has the meaning set forth in Section 8.16.

“Section 280G Waiver” has the meaning set forth in Section 8.16.

“Section 1542” has the meaning set forth in Section 8.24.

“Securities Act” means the Securities Act of 1933, as amended.

“Software” means (a) computer programs, including software implementation of algorithms, models and methodologies, whether in source-code, object-code or human readable or other form, including firmware, operating systems, and specifications, (b) database software that is accessed using computer programs, (c) descriptions, flow charts and other work products used to design, plan, organize and develop any of the foregoing, screens, user interfaces, report formats, firmware, development tools, templates, menus, buttons and icons, and (d) documentation, including programmer notes, user manuals and training materials, relating to such computer programs.

“Specified Courts” has the meaning set forth in Section 13.13.

“Spinoff” means the transactions contemplated by the Spinoff Documents.

“Spinoff Business” has the meaning set forth in the Spinoff Documents.

“Spinoff Documents” means the Contracts previously executed or to be executed by the Company and EIS in accordance with Section 8.17 in the forms attached hereto as Exhibit C.

“Stockholder Representative” has the meaning set forth in the preamble to this Agreement.

“Stockholder Representative Group” has the meaning set forth in Section 12.3.

“Straddle Period” means any taxable period that includes but does not end on the Closing Date.

“Subsidiary” of any Person means (a) any corporation, limited liability company, joint venture, trust or other legal entity, an amount of the voting Equity Interests of which sufficient to elect at least fifty percent (50%) of the board of directors, board of managers or other governing body of such corporation, limited liability company, joint venture, trust or other legal entity that is owned or controlled, directly or indirectly, by such Person or one or more other Subsidiaries of such Person or a combination thereof, or (b) any partnership of which such Person or another Subsidiary of such Person is the general partner; provided, that EIS shall be excluded where the term Subsidiary is used with respect to the Company Entities.

“Survival Expiration Date” has the meaning set forth in Section 11.1(a).

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

“Tail Policies” has the meaning set forth in Section 8.7(b).

“Takeover Laws” has the meaning set forth in Section 5.23.

“Tax” or “Taxes” means (a) all taxes and similar charges, fees, duties, levies or other assessments (including income, gross receipts, net proceeds, ad valorem, withholding, turnover, real or personal property (tangible and intangible), occupation, customs, import and export, sales, use, franchise, excise, goods and services, digital services, value added, stamp, user, transfer, registration, escheat or unclaimed property, recording, fuel, profit, excess profits, occupational, interest equalization, windfall profits, severance, payroll, unemployment, and social security or other taxes or fees) that are imposed by any Governmental Authority, in each case including any interest, penalties or additions to tax attributable thereto (or attributable to the nonpayment thereof) and (b) any liability in respect of any items described in clause (a) payable by reason of Contract, assumption, transferee or successor liability, operation of Law, Treasury Regulations Section 1.1502-6(a) (or any predecessor or successor thereof or any analogous or similar provision under Law) or otherwise.

“Tax Claim” has the meaning set forth in Section 8.14(h).

“Tax Matters Agreement” means the Tax Matters Agreement, to be executed in connection with the Spinoff in accordance with Section 8.17, by and between the Company and Elkay Interior Systems International, Inc.

“Tax Refund” has the meaning set forth in Section 11.6(a).

“Tax Return” means any report, return or other information or filing required or permitted to be supplied to a Governmental Authority in connection with any Taxes, including any schedules, amendments or attachments to such reports, returns, declarations or other filings that are filed with or submitted to or that are required to be filed with or submitted to, any Governmental Authority.

“Third-Party Claim” has the meaning set forth in Section 11.5(a).

“Third-Party Consents” has the meaning set forth in Section 8.1(a).

“Trademark” has the meaning set forth in the definition of Intellectual Property.

“Transaction Costs” means to the extent incurred prior to the Closing and unpaid as of immediately prior to the Closing and without duplication, the sum of (a) all fees, costs and expenses incurred by the Company Entities or by any Company Stockholder, to the extent the Company Entities are liable to pay or reimburse such amounts in connection with the Transactions, including all such legal, accounting, investment banking (including any broker’s fee), Tax advisory, financial advisory and other fees and expenses of third parties incurred in connection with the negotiation, preparation, execution and effectuation of this Agreement or the Related Agreements, (b) the amount of any severance, success fee, change of control, retention, transaction bonus, golden parachute, sale bonus or similar payments and any employee benefit plan contributions related thereto made or to be made to current or former directors, employees or consultants or other service providers of the Company Entities, in each case which are single trigger obligations arising solely by virtue of the Transactions, including any amounts owed under the Company Retention Bonus Agreements (but without double counting amounts accrued in connection with Indebtedness), (c) the employer portion of any payroll Taxes for which the Company Entities will become liable, and the value to the Company of any deduction disallowed under Section 280G(a) of the Code for any excess parachute payments as defined under Section 280G(b) of the Code, in connection with the payment of any amounts pursuant to clause (b); (d) all fees, costs and expenses associated with obtaining D&O Tail and the Tail Policies; (e) fees, costs and expenses associated with obtaining any waivers, consents or approvals required to be obtained in connection with this Agreement, the Related Agreements or the transactions contemplated hereby and thereby (but excluding, for the avoidance of doubt, any fees required by the lenders solely in connection with the continuation of the JPMorgan Credit Facility to remain in effect after the Closing) and (f) the total amount of withholding Taxes that must be remitted by the Company Entities, as well as the employer portion of such Taxes, with respect to the exercise of the Permitted M/N Option Grants immediately prior to the Closing.

“Transaction Engagement” has the meaning set forth in Section 13.16.

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

“Transfer Taxes” has the meaning set forth in Section 8.14(g).

“Unaudited Carve-Out Financial Statements” means (i) the unaudited consolidated balance sheet of the Company’s “Water Solutions Business Unit” (as described therein) as of January 1, 2022 (the “Interim Balance Sheet”), and (ii) the related audited statements of income and retained earnings, stockholders’ equity and cash flow for the period then ended (including the notes thereto).

“Union Employees” has the meaning set forth in Section 5.17(b).

“Unresolved Adjustments” has the meaning set forth in Section 4.2(c).

“Unresolved Balance” has the meaning set forth in Section 4.2(c).

“U.S. Trade Controls” has the meaning set forth in Section 5.25(a).

“Voting Common Stock” means shares of the Company’s Class A common stock and Class M common stock.

“Working Capital Ceiling” means an amount equal to $164,000,000.

“Working Capital Floor” means an amount equal to $154,000,000.

“Written Consent” means the written Consent(s) of the Company Stockholders in the form attached hereto as Exhibit D to, among other things, adopt this Agreement.

Article II

THE MERGER; CLOSING

2.1            The Merger. On the terms and subject to the conditions contained in this Agreement and in accordance with the applicable provisions of the DGCL, at the Effective Time, Merger Sub shall be merged with and into the Company, the separate existence of Merger Sub shall cease and the Company shall continue as the Surviving Corporation, as a wholly-owned Subsidiary of Purchaser, and shall succeed to and assume all the property, rights, privileges, powers and franchises and be subject to all of the restrictions, debt and duties of Merger Sub in accordance with the DGCL. The Merger will have the effects set forth in this Agreement and in the applicable provisions of the DGCL.

2.2            Closing; Effective Time. Upon the terms and subject to the conditions set forth herein, unless this Agreement has been previously terminated pursuant to its terms, the closing of the Merger (the “Closing”) shall take place on the date and time to be designated jointly by Purchaser and the Company, which shall be (a) no later than three (3) Business Days after the date on which each of the conditions set forth in Article IX has been satisfied or, if permitted, waived by the Party entitled to the benefits of such condition (other than any conditions that by their nature can only be satisfied on the Closing Date, but subject to the satisfaction of such conditions on the Closing Date or waiver by the Party entitled to the benefits of such conditions), or (b) at such other date, time or place as Purchaser and the Company may agree (such date on which the Closing occurs, the “Closing Date”). The Closing shall occur remotely by exchange of documents and signatures via email or other manner as may be mutually agreed upon by Purchaser and the Stockholder Representative. Concurrently with the Closing, the Company and Merger Sub shall file a certificate of merger satisfying the applicable requirements of the DGCL with the Secretary of State of the State of Delaware in the form attached as Exhibit E hereto (the “Certificate of Merger”) and make all other filings or recordings required by the DGCL in connection with the Merger. The Merger shall become effective at the Effective Time. As used herein, the term “Effective Time” means the time of the filing of the Certificate of Merger (or such later time as Purchaser and the Company may agree and specify in the Certificate of Merger).

2.3            Certificate of Incorporation and Bylaws. Upon the Effective Time, by virtue of the Merger, (a) the certificate of incorporation of the Company shall be amended and restated to read as the certificate of incorporation of Merger Sub in the form attached here to as Exhibit F, and as so amended and restated, shall be the certificate of incorporation of the Surviving Corporation until amended in accordance with the provisions thereof and applicable Law, and (b) the bylaws of the Company shall be amended and restated in their entirety to read as the bylaws of Merger Sub, as in effect immediately prior to the Effective Time, and as so amended and restated, shall be the bylaws of the Surviving Corporation until amended in accordance with the provisions thereof, the amended and restated certificate of incorporation of the Surviving Corporation and applicable Law, in each case, except that all references to the name of Merger Sub set forth therein shall be changed to the name of the Surviving Corporation.

2.4            Directors and Officers. From and after the Effective Time, (a) the directors of Merger Sub immediately prior to the Effective Time shall be the directors of the Surviving Corporation until their respective successors have been duly elected or appointed and qualified or until their earlier resignation, removal or death, and (b) the officers of Merger Sub immediately prior to the Effective Time shall be the officers of the Surviving Corporation until their respective successors have been duly elected or appointed and qualified or until their earlier resignation, removal or death.

2.5            Effect on Capital Stock.

(a)            Merger Consideration. Each Company Share issued and outstanding immediately prior to the Effective Time and held by a Company Stockholder (other than any holder of Dissenting Shares), shall cease to be outstanding, shall be cancelled and shall cease to exist, and each such Company Share, whether represented by a certificate (“Certificate”) or in non-certificated form and represented by book-entry (“Book-Entry Share”), shall automatically be converted into the right to receive the Per Share Amount, and any other amounts (including dividends (if any) payable in respect of the Purchaser Shares issuable in respect of such Company Share pursuant to Section 2.6(c) and payments in lieu of fractional shares pursuant to Section 3.7) payable in respect of such Company Share pursuant to the terms and conditions of this Agreement (collectively, the “Merger Consideration”).

(b)            Capital Stock of Merger Sub.      Each share of common stock of Merger Sub issued and outstanding immediately prior to the Effective Time shall be converted into and become one (1) validly issued, fully paid and non-assessable share of common stock of the Surviving Corporation, and such share shall constitute the only outstanding share of capital stock of the Surviving Corporation.

(c)            Treasury Shares. Each Company Share held in the treasury of the Company (including any Company Shares repurchased by the Company pursuant to the Management Stock Plan) shall be cancelled without any conversion thereof and no payment or issuance of Purchaser Shares shall be made with respect thereto. Notwithstanding anything to the contrary contained herein, Company Shares held in the treasury of the Company shall be deemed not to be issued or outstanding for any purpose of this Agreement.

2.6            Adjustment and Indemnity Escrow. At the Closing, Purchaser shall deposit, or cause to be deposited, with JPMorgan Chase Bank, N.A. (the “Escrow Agent”), (x) the Estimated Adjustment Cash Amount (if any) and (y) the Escrow Shares, in book-entry form to the Escrow Agent to be held in escrow pursuant to an escrow agreement by and among Purchaser, the Stockholder Representative and the Escrow Agent substantially in the form attached as Exhibit G attached hereto (the “Escrow Agreement”) and subject to Section 4.2, Section 11.1(b) and the following provisions of this Section 2.6:

(a)            The Adjustment Escrow Shares Amount, plus the Estimated Adjustment Cash Amount (if any) shall serve as the sole source of recovery for amounts owed to Purchaser pursuant to Section 4.2(d). Following the final determination of the Final Net Adjustment Amount in accordance with Section 4.2, the Stockholder Representative and Purchaser shall execute and deliver to the Escrow Agent joint written instructions with respect to the release of the Adjustment Escrow Shares Amount or the Estimated Adjustment Cash Amount (if any) in accordance with the applicable provisions of Section 4.2(d).

(b)            On the terms and subject to the conditions of the Escrow Agreement, the Stockholder Representative shall be entitled to vote any Escrow Shares by delivery of a written direction executed by the Stockholder Representative directing the Escrow Agent to vote all or a portion of the Escrow Shares in accordance with such direction.

(c)            All dividends and distributions declared and paid by Purchaser on the Escrow Shares shall (to the extent that such Escrow Shares were not, pursuant to the Escrow Agreement and this Agreement, required to have been released to Purchaser prior to the record date thereof) (“Escrow Dividends”) be paid by Purchaser to the Escrow Agent to be held on the terms and subject to the conditions of the Escrow Agreement and this Agreement. The Escrow Dividends shall not be available for disbursement to the Company Stockholders unless and until such Escrow Dividends are required to be released to the Exchange Agent for disbursement to the Company Stockholders in accordance with Section 11.1(b), at which point, the Exchange Agent shall distribute the Escrow Dividends actually released from escrow for the benefit of the Company Stockholders in accordance with their respective Pro Rata Portions as set forth in the Estimated Adjustment Statement.

2.7            Dissenting Shares. Notwithstanding anything in this Agreement to the contrary, Company Shares issued and outstanding immediately prior to the Effective Time and held by a Company Stockholder who (A) has not (x) voted in favor of the adoption of this Agreement or consented thereto in writing or (y) otherwise waived such Company Stockholder’s right to appraisal under applicable Law and (B) has, with respect to such Company Stockholder’s Company Shares, complied in all respects with, and does in fact properly exercise appraisal rights in the manner provided by Section 262 of the DGCL (the “Dissenting Shares”), shall not be converted into or be exchangeable for the right to receive the consideration specified in Section 2.5 but instead shall be converted into the right to receive such consideration as may be determined to be due with respect to such Dissenting Shares pursuant to Section 262 of the DGCL. At the Effective Time, the Dissenting Shares, if any, will no longer be outstanding and will automatically be cancelled and will cease to exist, and each holder of Dissenting Shares will cease to have any rights with respect thereto, except the right to receive the fair value of such shares in accordance with the provisions of Section 262 of the DGCL. If, after the Effective Time, any such Company Stockholder withdraws, fails to perfect, or otherwise loses such right to appraisal, or if a court of competent jurisdiction shall determine that such Company Stockholder is not entitled to relief provided by Section 262 of the DGCL, the Dissenting Shares held by such Company Stockholder shall thereupon be treated as if they had been converted as of the Effective Time into the right to receive the consideration specified in Section 2.5. The Company shall give Purchaser (a) prompt notice of, together with copies of, any demands received by the Company for appraisal of Company Shares pursuant to the DGCL, and (b) the right to participate in and control all negotiations and Proceedings with respect to such demands for appraisal under the DGCL. The Company shall not, except with the prior written Consent of Purchaser, (i) make any payment with respect to, settle or offer to settle or approve any withdrawal of, any such demand, (ii) waive any failure to properly make or effect any such demand or to take any action required to perfect such appraisal rights or (iii) agree to do any of the foregoing.

2.8            Purchaser Board.

(a)            Company Directors. The Purchaser Board shall appoint Errol Halperin and Tim Jahnke (the “Company Directors”) to serve, effective as of the Effective Time, on the Purchaser Board, with initial terms ending at Purchaser’s annual meeting of its stockholders in fiscal year 2024 (with respect to Errol Halperin) and fiscal year 2025 (with respect to Tim Jahnke), respectively. In addition, the Purchaser Board shall take such legally permissible actions as are reasonably necessary so that there are a total of eleven (11) members of the Purchaser Board as of the Effective Time, after giving effect to the appointments of the Company Directors. Each of the Company Directors shall receive compensation from Purchaser for his or her service as a director that is consistent with the compensation of other non-employee members of the Purchaser Board.

(b)            Company Board Observer. From and after the Closing, during the term of the Board Observer Agreement, Purchaser shall permit the Observer to participate in all meetings of the Purchaser Board in a nonvoting, observer capacity in accordance with the terms of the Board Observer Agreement.

Article III

MERGER PROCEDURES

3.1            Closing Consideration; Exchange Agent. Prior to the Effective Time, Purchaser shall select a paying and exchange agent (the “Exchange Agent”) and enter into an agreement with such Exchange Agent (the “Exchange Agent Agreement”), pursuant to which the Exchange Agent will act as agent for the Company Stockholders in connection with the Merger and receive payment and delivery of the Merger Consideration to which the Company Stockholders shall become entitled pursuant to Section 2.5(a). The Company shall have an opportunity to review and comment on the Exchange Agent Agreement prior to its execution. At or prior to the Effective Time, in addition to the delivery of the Estimated Adjustment Cash Amount and the Escrow Shares to the Escrow Agent in accordance with Section 2.6, Purchaser shall deposit, or cause to be deposited, with the Exchange Agent, in trust for the benefit of the Company Stockholders an amount of Purchaser Shares in book-entry form sufficient for the Exchange Agent to pay and deliver to each Company Stockholder (other than any Company Stockholder holding Dissenting Shares) the Per Share Closing Stock Amount to which such Company Stockholder is entitled for each Company Share held by such Company Stockholder. In addition, Purchaser shall deposit, or cause to be deposited, with the Exchange Agent, from time to time after the Effective Time as set forth in this Agreement, (i) any dividends or other distributions payable to the Company Stockholders pursuant to Section 3.6 or Section 2.6(c), (ii) cash in lieu of any fractional Purchaser Shares payable pursuant to Section 3.7, (iii) if applicable, the Aggregate Adjustment Cash Amount and Purchaser Shares (from the Adjustment Escrow Shares Amount) (if any) required to be distributed to any Company Stockholders in respect of the Final Net Adjustment Amount in accordance with Section 4.2(d) and (iv) any Purchaser Shares (from the Indemnity Shares Amount) required to be distributed to any Company Stockholders after the Survival Expiration Date in accordance with Section 11.1(b). All Purchaser Shares, together with any cash, dividends or other distributions deposited with the Exchange Agent pursuant to this Section 3.1 shall be referred to as the “Exchange Fund.” For the avoidance of doubt, Purchaser shall be under no obligation to provide Merger Consideration to any Company Stockholder (or to the Exchange Agent) in respect of any Dissenting Shares until such Company Stockholder withdraws, fails to perfect, or otherwise loses such right to appraisal, or if a court of competent jurisdiction shall determine that such Company Stockholder is not entitled to relief provided by Section 262 of the DGCL, in accordance with Section 2.7. To the extent the Exchange Agent reasonably requests information from Purchaser in connection with the performance of its duties as described herein and in the Exchange Agent Agreement, the Stockholder Representative shall provide such information as requested by Purchaser to the extent within Stockholder Representative’s possession or control.

3.2            Exchange Procedures.

(a)            Transmittal Materials and Instructions. Promptly after the Effective Time (and in any event within three (3) Business Days thereafter), Purchaser shall cause the Exchange Agent to mail or otherwise provide to each holder of record of Company Shares other than Dissenting Shares (A) transmittal materials, including a letter of transmittal in the form, and containing the release, attached hereto as Exhibit H (the “Letter of Transmittal”) and such other evidence, if any, of the transfer as the Exchange Agent may reasonably request, specifying, among other things, that delivery shall be effected, and risk of loss and title shall pass, with respect to Book-Entry Shares, only upon delivery of an “agent’s message” regarding the book-entry transfer of Book-Entry Shares and a duly executed Letter of Transmittal, and with respect to Company Shares, only upon delivery of a duly executed Letter of Transmittal and any Certificates (or affidavits of loss plus a bond (in an amount and form reasonably acceptable to Purchaser) in lieu of the Certificates as provided in Section 3.5), such transmittal materials to be in such form and have such other provisions as Purchaser and the Company may reasonably agree, and (B) instructions for use in effecting the surrender of the Book-Entry Shares or Certificates (or affidavits of loss plus a bond (in amount and form acceptable to Purchaser) in lieu of the Certificates as provided in Section 3.5) to the Exchange Agent.

(b)            Certificates. Upon surrender of a Certificate (or affidavit of loss in lieu of a Certificate plus a bond (in an amount and form acceptable to Purchaser) as provided in Section 3.5) to the Exchange Agent together with delivery to the Exchange Agent of a duly executed Letter of Transmittal in accordance with the terms of transmittal materials and instructions referred to in Section 3.2(a), the holder of such Certificate shall be entitled, on the terms and subject to the conditions of this Agreement, to receive in exchange therefor:

(i)            the number of Purchaser Shares, in uncertificated book-entry form, equal to (x) the number of Company Shares represented by such Certificate (or affidavit of loss in lieu of the Certificate plus a bond (in an amount and form acceptable to Purchaser) as provided in Section 3.5) multiplied by (y) the Per Share Stock Amount; and

(ii)           cash in immediately available funds in an amount equal to (x) the number of Company Shares represented by such Certificate (or affidavit of loss in lieu of the Certificate plus a bond (in an amount and form acceptable to Purchaser) as provided in Section 3.5) multiplied by (y) the Per Share Cash Amount.

(c)            Book-Entry Shares. Upon receipt by the Exchange Agent of an “agent’s message” in customary form regarding the book-entry transfer of Book-Entry Shares (it being understood that the holders of Book-Entry Shares shall be deemed to have surrendered such Company Shares upon receipt by the Exchange Agent of any “agent’s message” or such other evidence, if any, as the Exchange Agent may reasonably request, including the other deliveries required pursuant to this Section 3.2(c)) and delivery of a duly executed Letter of Transmittal in accordance with the terms of transmittal materials and instructions referred to in Section 3.2(a), the holder of any Book-Entry Shares shall be entitled, on the terms and subject to the conditions of this Agreement, to receive in exchange therefor:

(i)            the number of Purchaser Shares, in uncertificated book-entry form, equal to (x) the number of Company Shares represented by such Book-Entry Shares multiplied by (y) the Per Share Stock Amount; and

(ii)           cash in immediately available funds in an amount equal to (x) the number of Company Shares represented by such Book-Entry Shares multiplied by (y) the Per Share Cash Amount.

(d)            Rights of Holders of Company Shares; Expenses. Other than any Dissenting Shares, until surrendered and exchanged pursuant to this Section 3.2, each Certificate or Book-Entry Share shall be deemed at any time after the Effective Time to represent only the right to receive upon such surrender and exchange the Merger Consideration on the terms and subject to the conditions of this Agreement. Any Merger Consideration paid upon the surrender or exchange of any Certificate or Book-Entry Share shall be deemed to have been paid in full satisfaction of all rights pertaining to such Certificate or Book-Entry Share, and in the case of a Certificate, the Company Shares formerly represented by it. Purchaser shall pay all charges and expenses, including those of the Exchange Agent, in connection with the exchange of Company Shares pursuant to this Article III.

3.3            Termination of Exchange Fund; No Liability. Subject to the Escrow Agreement and Exchange Agent Agreement with respect to the Indemnity Shares Amount, any portion of the Exchange Fund that remains undistributed one (1) year after the Effective Time shall be delivered to Purchaser or the Surviving Corporation upon demand by Purchaser. Any holders of Company Shares who have not theretofore complied with this Article III shall thereafter be entitled to look only to Purchaser and the Surviving Corporation for payment and delivery of the Merger Consideration, upon surrender of their Certificates or exchange of their Book-Entry Shares in accordance with the provisions set forth in Section 3.2. The Surviving Corporation shall remain liable for (subject to applicable abandoned property, escheat or other similar Law) payment of their claims for the Merger Consideration, payable upon surrender of their Certificates or exchange of their Book-Entry Shares. Notwithstanding the foregoing, none of the Surviving Corporation, Purchaser, the Company, the Exchange Agent or any other Person shall be liable to any former holder of Company Shares for any amount properly delivered to a public official pursuant to applicable abandoned property, escheat or other similar Law.

3.4            Transfers. From and after the Effective Time, the stock transfer books of the Company shall be closed and there shall be no transfers on the stock transfer books of the Company of the Company Shares that were outstanding immediately prior to the Effective Time. If, after the Effective Time, acceptable evidence of a Certificate or Book-Entry Share is presented to the Surviving Corporation, Purchaser or the Exchange Agent for transfer (i) in the case of Certificates, the holder of such Certificate shall be given a copy of the transmittal materials and instructions referred to in Section 3.2(a) and instructed to comply with the instructions thereto in order to receive the Merger Consideration pursuant to Section 3.2(b) and (ii) in the case of Book-Entry Shares, the holder of such Book-Entry Share shall be given a copy of the transmittal materials and instructions referred to in Section 3.2(a) and instructed to comply with the instructions thereto in order to receive the Merger Consideration pursuant to Section 3.2(c) and thereafter such Book-Entry Share shall be cancelled and exchanged as contemplated by this Article III.

3.5            Lost Certificates. In the case of any Certificate that has been lost, stolen or destroyed, upon the delivery of a Letter of Transmittal and the making of an affidavit of that fact by the Person claiming such Certificate to be lost, stolen or destroyed and the provision by such Person of an indemnity against any claim that may be made against it with respect to such Certificate and the posting of a bond (in an amount and form acceptable to Purchaser), the Exchange Agent shall pay and deliver in exchange for such Certificate the applicable portion of the Merger Consideration pursuant to Section 3.2(b).

3.6            Dividends. Without limiting anything to the contrary contained herein, including Section 2.6, no dividends or other distributions declared or made with respect to Purchaser Shares with a record date after the Effective Time shall be paid to the holder of any Company Shares with respect to the Purchaser Shares that such holder would be entitled to receive upon surrender of a Certificate (in accordance with Section 3.2(b)), or Book-Entry Shares (in accordance with Section 3.2(c)), as applicable, until such holder shall surrender such Certificate or Book-Entry Shares, as applicable, and provide a duly executed Letter of Transmittal, in accordance with Section 3.2(b) (or Section 3.5, as applicable) in the case of Certificates, and Section 3.2(c) in the case of Book-Entry Shares. Subject to applicable Law, following surrender of any Certificate or Book-Entry Shares, as applicable, and delivery of a duly executed Letter of Transmittal, there shall be paid to the holder of Purchaser Shares issued in exchange therefor, without interest, (A) promptly after the time of such surrender and delivery of a duly executed Letter of Transmittal, the amount of dividends and other distributions with a record date after the Effective Time but prior to such surrender and delivery of a duly executed Letter of Transmittal and a payment date prior to such surrender and delivery of a duly executed Letter of Transmittal payable with respect to such Purchaser Shares and (B) at the appropriate payment date, the amount of dividends and other distributions with a record date after the Effective Time but prior to such surrender and delivery of a duly executed Letter of Transmittal and a payment date subsequent to such surrender and delivery of a duly executed Letter of Transmittal payable with respect to such Purchaser Shares.

3.7            Fractional Shares. No certificates or scrip representing fractional Purchaser Shares shall be issued upon the conversion of the Company Shares into the Merger Consideration pursuant to Section 2.5(a), and such fractional share interests shall not entitle the owner thereof to vote or to any rights of a holder of Purchaser Shares. For purposes of this Section 3.7, all fractional shares to which a single record holder would be entitled shall be aggregated and calculations shall be rounded to four (4) decimal places. In lieu of any such fractional Purchaser Shares, each holder of Company Shares who would otherwise be entitled to such fractional Purchaser Shares shall be entitled to receive an amount in cash, without interest, rounded to the nearest cent, equal to the product of (i) the amount of such fractional Purchaser Share and (ii) the Purchaser Share Price.

3.8            Stock Adjustments. In the event of any change to the form or nature of Purchaser Common Stock (or securities convertible thereto or exchangeable or exercisable therefor) issued and outstanding in the period between the date of this Agreement and the Effective Time as a result of a reclassification, stock split (including a reverse stock split), stock dividend or distribution, recapitalization, exchange or readjustment of shares, merger, issuer tender or exchange offer, or other similar transaction (which, for the avoidance of doubt, shall not include the exercise, issuance, exchange, repurchase, forfeiture or similar actions with respect to stock options or any securities convertible into or exercisable or exchangeable for voting or Equity Interests of Purchaser), the Merger Consideration and any other payments to be made pursuant to this Article III shall be equitably adjusted, without duplication, to provide the holders of Company Shares the same economic effect contemplated by this Agreement prior to such change; provided, however, that nothing in this Section 3.8 shall be construed to permit the Company, Purchaser, any of their respective Subsidiaries or any other Person, to take any action that is otherwise prohibited by the terms of this Agreement.

3.9            Deliveries by Purchaser and Merger Sub. At or prior to the Closing, Purchaser and Merger Sub shall deliver, or cause to be delivered, to the Company each of the following:

(a)            a copy of the certificate of incorporation of each of Merger Sub and Purchaser, in each case certified as of a date not more than five (5) Business Days prior to the Closing Date by the Secretary of State of the State of Delaware;

(b)            a certificate of good standing of each of Merger Sub and Purchaser, issued as of a date not more than five (5) Business Days prior to the Closing Date by the Secretary of State of the State of Delaware;

(c)            a certificate, dated as of the Closing Date and executed by an officer of Purchaser, certifying as to the satisfaction of the conditions set forth in Section 9.3(a) and Section 9.3(b);

(d)            a certificate, dated as of the Closing Date and executed by the secretary or an assistant secretary (or similar officer) of Merger Sub and Purchaser, certifying as to (i) no amendments to the certificate of incorporation of Merger Sub or Purchaser since the date of certification referenced in paragraph (b) above, and (ii) the bylaws of Merger Sub and Purchaser; and

(e)            a registration rights agreement, dated as of the Closing Date, duly executed by Purchaser in substantially the form attached hereto as Exhibit I (the “Registration Rights Agreement”), for countersignature by each of the Company Stockholders set forth on Schedule 1.1.

3.10          Deliveries by the Company. At or prior to the Closing, the Company shall deliver, or cause to be delivered, to Purchaser and Merger Sub each of the following:

(a)            at least three (3) Business Days prior to the Closing Date, a customary payoff letter in respect of the JPMorgan Credit Facility that states the amount required to fully pay off any such Indebtedness, including any principal, interest fees or penalties outstanding or accrued thereunder and incremental per diem increases in respect thereof to account for any delays to the anticipated Closing Date as of the date such payoff letter is executed together with all associated Lien release documentation (including UCC-3 termination statements); provided, that such payoff letters shall provide that any applicable Liens or other obligations securing such Indebtedness shall be released at the Closing and the filing of customary Lien releases as soon as practicable following the Closing, in each case, subject to the receipt by the holders of such Indebtedness of the applicable payoff amounts;

(b)            a copy of the certificate of incorporation of the Company, certified as of a date not more than five (5) Business Days prior to the Closing Date by the Secretary of State of the State of Delaware;

(c)            a certificate of good standing of the Company, issued as of a date not more than five (5) Business Days prior to the Closing Date by the Secretary of State of the State of Delaware;

(d)            a certificate, dated as of the Closing Date and executed by an officer of Company, certifying as to the satisfaction of the conditions set forth in Section 9.2(a) and Section 9.2(b);

(e)            a certificate, dated as of the Closing Date and executed by the secretary or an assistant secretary of the Company, certifying as to (i) no amendments to the certificate of incorporation of the Company since the date hereof (other than the Company Certificate of Amendment) and (ii) the bylaws of the Company;

(f)             (i) a duly executed certification from the Company dated no more than thirty (30) days prior to the Closing Date in accordance with the provisions of Treasury Regulations Sections 1.1445-2(c)(3) and 1.897-2(h) certifying that interests in the Company do not constitute “United States real property interests” under Section 897(c) of the Code, and (ii) a duly executed notice in accordance with the provisions of Treasury Regulations Section 1.897-2(h)(2) to be filed by Purchaser after the Closing (on behalf of the Company) with the Internal Revenue Service within thirty (30) days of when the certification in this Section 3.10(f) was provided to Purchaser; and

(g)            a resignation letter, in a form mutually agreed by Purchaser and the Company, duly executed by each of the officers and directors of the Company Entities requested by the Purchaser at least 10 Business Days prior to the Closing Date (other than any such officers and directors who have been removed from such positions prior to the Closing).

3.11          Withholding Rights. Each of the Exchange Agent, Purchaser, Merger Sub and the Surviving Corporation shall be entitled to deduct and withhold from the consideration otherwise payable pursuant to this Agreement such amounts as it is required to deduct and withhold with respect to the making of such payment under any provision of any applicable Law, including federal, state, local or non-U.S. Tax law. If the Exchange Agent, Purchaser, Merger Sub or the Surviving Corporation, as the case may be, so withholds and pays over all amounts so withheld to the appropriate Governmental Authority, such amounts shall be treated for all purposes of this Agreement as having been paid to the Person in respect of which the Exchange Agent, Purchaser, Merger Sub or the Surviving Corporation, as the case may be, made such deduction and withholding. If the Exchange Agent, Purchaser, Merger Sub or the Surviving Corporation, as the case may be, intends to deduct or withhold any amounts from any payment under this Agreement (other than any deduction or withholding on account of a compensatory payment), Purchaser shall provide notice to the Stockholder Representative thereof as soon as reasonably practicable prior to such deduction or withholding, and Purchaser shall use commercially reasonable efforts to cooperate to mitigate, reduce or eliminate such reduction or withholding in accordance with applicable Law.

Article IV

ADJUSTMENTS TO MERGER CONSIDERATION

4.1            Estimated Net Adjustment Amount.

(a)            At least five (5) Business Days prior to the Closing Date, the Stockholder Representative shall cause the Company to deliver to Purchaser a statement (the “Estimated Adjustment Statement”) setting forth (i) the Company’s estimate of Net Working Capital, Company Net Cash and Company Net Indebtedness, any components included therein, and, based on the foregoing, the Net Adjustment Amount (such estimate of the Net Adjustment Amount, the “Estimated Net Adjustment Amount”), (ii) the total number of Company Shares to be outstanding as of the Closing Date (and assuming, for the avoidance of doubt, all repurchases and net exercises under the Management Stock Plan have occurred) and (iii) based on the foregoing, (A) the Estimated Adjustment Shares Amount, (B) the Per Share Closing Stock Amount, (C) the Estimated Adjustment Cash Amount, (D) with respect to each Company Stockholder, such Company Stockholder’s Pro Rata Portion and the number of Purchaser Shares issuable to such Company Stockholder at the Closing (subject to Sections 3.2(b) and 3.2(c), as applicable) equal to the number of Company Shares held by such Company Stockholder as of immediately prior to the Closing (after giving effect to all repurchases and net exercises under the Management Stock Plan) multiplied by the Per Share Closing Stock Amount and (E) the amounts payable to each Company Stockholder pursuant to Section 3.7. The Estimated Adjustment Statement and the foregoing estimates shall be prepared in accordance with the Accounting Principles. The Company will provide Purchaser and its advisors with the reasonable opportunity to review and comment on the Estimated Adjustment Statement and any supporting materials and calculations reasonably requested by Purchaser related thereto and reasonable access to the Company’s CFO to discuss the Estimated Adjustment Statement; provided, that Purchaser shall be entitled to rely upon the allocation of the Purchaser Shares among the Company Stockholders set forth in Estimated Adjustment Statement (as may be revised pursuant to the Adjustment Statement) and following payments of the amounts referenced thereunder, Purchaser, and after the Closing, the Surviving Corporation and any other Company Entities, shall have no further liability with respect to the Company Shares except as otherwise provided herein.

(b)            Notwithstanding anything to the contrary contained in this Agreement, solely for purposes of calculating the Estimated Net Adjustment Amount, Company Net Cash shall not exceed Five Million Dollars ($5,000,000).

4.2            Final Net Adjustment Amount.

(a)            No later than sixty (60) days after the Closing Date, Purchaser shall prepare and deliver to the Stockholder Representative a statement setting forth Purchaser’s calculation of the Net Working Capital, Company Net Cash and Company Net Indebtedness, and, based on the foregoing, the Net Adjustment Amount (such statement, the “Adjustment Statement”), together with reasonable supporting materials and calculations as reasonably requested by the Stockholder Representative relating thereto.

(b)            The Stockholder Representative will be entitled to review the Adjustment Statement during the forty-five (45) day period beginning on the date the Stockholder Representative receives the Adjustment Statement (the “Review Period”). During the Review Period, at the written request of the Stockholder Representative to Purchaser, the Stockholder Representative and its Representatives (subject to customary access and confidentiality agreements) will have reasonable access to the books and records of the Company, to work papers prepared by Purchaser or its Representatives to the extent they were used by Purchaser in its calculations set forth in the Adjustment Statement, and reasonable access to the personnel of Purchaser and the Surviving Corporation who prepared the Adjustment Statement for discussion of the Adjustment Statement; provided that such access does not unreasonably interrupt the normal course of business of Purchaser and its Affiliates (including the Company Entities). At or prior to the end of the Review Period, the Stockholder Representative shall either:

(i)            deliver a notice to Purchaser confirming that no adjustments are proposed by the Stockholder Representative to Purchaser’s calculation of the Net Adjustment Amount or any of its components, as set forth on the Adjustment Statement (in which case Purchaser’s calculation of the Net Adjustment Amount as set forth in the Adjustment Statement shall constitute the Final Net Adjustment Amount) (a “Notice of Acceptance”); or

(ii)           deliver a notice to Purchaser stating that the Stockholder Representative disagrees with Purchaser’s calculation of the Net Adjustment Amount or any of its components, as set forth on the Adjustment Statement (a “Notice of Disagreement”), and specifying in reasonable detail the nature of such disagreement and the adjustments that, in the Stockholder Representative’s view, should be made to the calculation of the Net Adjustment Amount or any of its components, as applicable, in order to comply with this Agreement and the Accounting Principles (collectively, the “Proposed Adjustments”); provided, however, that if the Stockholder Representative fails to deliver a Notice of Acceptance or a Notice of Disagreement prior to the expiration of the Review Period, then the calculation of the Net Adjustment Amount as set forth in the Adjustment Statement shall be final and binding on the Parties and the Company Stockholders as the Final Net Adjustment Amount.

(c)            If the Stockholder Representative provides a Notice of Disagreement with any Proposed Adjustments, Purchaser shall, no later than thirty (30) days after its receipt of a Notice of Disagreement, notify the Stockholder Representative whether Purchaser accepts or rejects each such Proposed Adjustment. Thereafter, Purchaser and the Stockholder Representative shall work in good faith to resolve any differences that remain with respect to the Proposed Adjustments. If the Proposed Adjustments are so resolved in writing, such agreement of the Stockholder Representative and Purchaser shall constitute the Final Net Adjustment Amount. If, however, any of the Proposed Adjustments are not so resolved (the “Unresolved Adjustments,” and the aggregate difference between the Parties’ respective calculations of the Net Adjustment Amount resulting from the Unresolved Adjustments, the “Unresolved Balance”) within thirty (30) days after Purchaser’s notice of its rejection of any Proposed Adjustments as set forth in this Section 4.2(c) (or such longer period as Purchaser and the Stockholder Representative may mutually agree in writing), then, at the request of either the Stockholder Representative or Purchaser, the Unresolved Adjustments will be submitted to PricewaterhouseCoopers LLP or, if such firm is unable or unwilling to act, to a nationally recognized independent accounting firm with no material relationships with any Company Stockholder, the Stockholder Representative, Purchaser or any of their respective Affiliates and with accounting expertise and relevant experiences in resolving similar purchase price adjustment disputes as mutually agreed upon in good faith by Purchaser and the Stockholder Representative (the “Accounting Firm”). Each Party shall submit to the Accounting Firm and the other Party its position with respect to the Unresolved Adjustments as set forth in the Adjustment Statement, in the case of the Stockholder Representative, and a Notice of Disagreement, in the case of Purchaser, and shall make available to the Accounting Firm and the other Party, as applicable, the books and records of the Company, work papers prepared by Purchaser, the Stockholder Representative or their respective Representatives to the extent they relate to the Adjustment Statement or a Notice of Disagreement, as the case may be, and other historical financial information relating to the Adjustment Statement, in each case as the Accounting Firm may reasonably request (subject to the execution of appropriate confidentiality and access letters). Neither Purchaser nor the Stockholder Representative shall meet with the Accounting Firm without the other present, or otherwise have ex parte communications with the Accounting Firm. The Accounting Firm shall act as an arbiter and not as an expert with respect the review contemplated by this Section 4.2(c) and the scope of the review by the Accounting Firm will be limited to: (i) a disposition of the Unresolved Adjustments through a strict application of the Accounting Principles, (ii) based on its determination of the matters described in clause (i) and all items and amounts that were previously accepted or agreed upon or deemed agreed upon by the Parties in accordance with this Section 4.2, as applicable, a calculation of the Net Adjustment Amount, including each of its components, and (iii) an allocation of the fees and expenses of the Accounting Firm determined in accordance with the formula specified below in this Section 4.2(c). The Accounting Firm is not entitled to, and the Parties shall not individually request the Accounting Firm to, (A) make any determination other than as set forth above, (B) determine any Unresolved Adjustment to be a value higher than the highest value or lower than the lowest value proposed by Purchaser or the Stockholder Representative in their submissions to the Accounting Firm or (C) undertake any independent investigation of the facts relating to the Unresolved Adjustments. The Accounting Firm will be instructed to render its written decision resolving the matters submitted to it as promptly as practicable and, if at all possible, within thirty (30) days after such submission of the Unresolved Adjustments. The determination of the Net Adjustment Amount by the Accounting Firm will, absent manifest error, be final and binding on the Parties as the Final Net Adjustment Amount, and judgment may be entered upon such determination in any court of competent jurisdiction. The fees and expenses of the Accounting Firm incurred pursuant to this Section 4.2(c) shall be borne by Purchaser, on the one hand, and the Stockholder Representative (on behalf of the Company Stockholders), on the other hand, as determined by the Accounting Firm based on the inverse of the percentage that the Accounting Firm’s determination (before such allocation) bears to the total value of each Party’s respective position in relation to the total amount of the Unresolved Balance. For purposes of illustration only, if the Unresolved Balance is $100, and the written determination of the Accounting Firm states that $80 of the Unresolved Balance is resolved in Purchaser’s favor and $20 of the Unresolved Balance is resolved in the Stockholder Representative’s favor, Purchaser would bear twenty percent (20%) of the Accounting Firm’s costs and expenses, on the one hand, and the Stockholder Representative (on behalf of the Company Stockholders) would bear eighty percent (80%) of such costs and expenses, on the other hand. All other fees, expenses, and costs incurred by a Party or its Representatives in connection with this Section 4.2 shall be borne by such Party (and in the case of the Stockholder Representative, on behalf of the Company Stockholders).

(d)            Within five (5) Business Days after the date on which the Final Net Adjustment Amount is finally determined in accordance with this Section 4.2:

(i)            if the Post-Closing Adjustment Amount is a positive number and the Estimated Adjustment Shares Amount was zero (0), then (A) Purchaser and the Stockholder Representative shall jointly instruct the Escrow Agent to release to the Exchange Agent, for distribution and issuance to the Company Stockholders (other than any holders of Dissenting Shares) in book-entry form, the entire Adjustment Escrow Shares Amount and the entire Estimated Adjustment Cash Amount (if any), (B) Purchaser shall deposit, or cause to be deposited, with the Exchange Agent for distribution to the Company Stockholders (other than holders of any Dissenting Shares) an amount in cash in immediately available funds equal to the lesser of (x) the full amount of the Post-Closing Adjustment Amount and (y) $20,000,000, and (C) Purchaser shall instruct the Exchange Agent to distribute and issue, as applicable, the full amount of the cash deposited pursuant to the foregoing clause (B), together with the entire Estimated Adjustment Cash Amount, and all of the Purchaser Shares included in the Adjustment Escrow Shares Amount in book-entry form, in each case to the Company Stockholders (other than any holders of Dissenting Shares) in accordance with each such Company Stockholder’s Pro Rata Portion set forth in the Estimated Adjustment Statement, provided that such Company Stockholder has delivered a duly executed Letter of Transmittal to the Exchange Agent and any other required documents in accordance with Section 3.2;

(ii)           if the Post-Closing Adjustment Amount is a positive number and the Estimated Adjustment Shares Amount was positive (such that the Per Share Closing Stock Amount was reduced in respect thereof), then (A) Purchaser and the Stockholder Representative shall jointly instruct the Escrow Agent to release to the Exchange Agent, for distribution and issuance to the Company Stockholders (other than any holders of Dissenting Shares) in book-entry form, the entire Adjustment Escrow Shares Amount, (B) Purchaser shall deposit, or cause to be deposited, with the Exchange Agent for distribution and issuance to the Company Stockholders (other than any holders of Dissenting Shares), an additional amount of Purchaser Shares in book-entry form equal to the lesser of (1) the amount of the Post-Closing Adjustment Amount divided by the Purchaser Share Price and (2) the Estimated Adjustment Shares Amount, (C) if the amount of the Post-Closing Adjustment Amount divided by the Purchaser Share Price exceeds the Estimated Adjustment Shares Amount, then Purchaser shall deposit, or cause to be deposited, with the Exchange Agent for distribution to the Company Stockholders (other than holders of any Dissenting Shares), cash in immediately available funds equal to the lesser of (x) the amount by which the Post-Closing Adjustment Amount exceeds the product of the Estimated Adjustment Shares Amount multiplied by the Purchaser Share Price and (y) $20,000,000 and (D) Purchaser shall instruct the Exchange Agent to distribute and issue, as applicable, the full amount of the cash deposited pursuant to the foregoing clause (C) (if any), together with the Purchaser Shares deposited pursuant to the foregoing clause (B) in book-entry form and all of the Purchaser Shares included in the Adjustment Escrow Shares Amount in book-entry form, in each case to the Company Stockholders (other than any holders of Dissenting Shares) in accordance with each such Company Stockholder’s Pro Rata Portion set forth in the Estimated Adjustment Statement, provided that such Company Stockholder has delivered a duly executed Letter of Transmittal to the Exchange Agent and any other required documents in accordance with Section 3.2;

(iii)          if the Post-Closing Adjustment Amount is a negative number and the Estimated Adjustment Shares Amount was positive (such that the Per Share Closing Stock Amount was reduced in respect thereof), then (A) Purchaser and the Stockholder Representative shall jointly instruct the Escrow Agent to release (1) to Purchaser, from the Adjustment Escrow Shares Amount, that number of Purchaser Shares (not to exceed the total number of Purchaser Shares in the Adjustment Escrow Shares Amount) which is equal to the absolute value of the Post-Closing Adjustment Amount divided by the Purchaser Share Price, and (2) to the Exchange Agent, for distribution and issuance in book-entry form to the Company Stockholders (other than any holders of Dissenting Shares), the remaining portion (if any) of the Adjustment Escrow Shares Amount after giving effect to the foregoing clause (A)(1); and (B) Purchaser shall instruct the Exchange Agent to distribute and issue such portion of the Adjustment Escrow Shares Amount described in the foregoing clause (A)(2) to the Company Stockholders (other than any holders of Dissenting Shares) in book-entry form accordance with each such Company Stockholder’s Pro Rata Portion set forth in the Estimated Adjustment Statement, provided that such Company Stockholder has delivered a duly executed Letter of Transmittal to the Exchange Agent and any other required documents in accordance with Section 3.2; and

(iv)          if the Post-Closing Adjustment Amount is a negative number and the Estimated Adjustment Shares Amount was zero (0), then (A) Purchaser and the Stockholder Representative shall jointly instruct the Escrow Agent to release (1) to Purchaser, from the Estimated Adjustment Cash Amount then held in escrow, the lesser of the absolute value of the Post-Closing Adjustment Amount and the Estimated Adjustment Cash Amount, and if the absolute value of the Post-Closing Adjustment Amount exceeds the Estimated Adjustment Cash Amount (any such excess, an “Adjustment Deficit”), from the Adjustment Escrow Shares Amount then held in escrow, that number of Purchaser Shares which is equal to the amount of the Adjustment Deficit divided by the Purchaser Share Price, and (2) to the Exchange Agent, for distribution and issuance, as applicable, to the Company Stockholders (other than any holders of Dissenting Shares), the remaining portion (if any) of the Estimated Adjustment Cash Amount and/or the Adjustment Escrow Shares Amount after giving effect to the foregoing clause (A)(1), and (B) Purchaser shall instruct the Exchange Agent to distribute and issue in book-entry form, as applicable, such remaining portion of the Estimated Adjustment Cash Amount and/or Adjustment Escrow Shares Amount described in the foregoing clause (A)(2) to the Company Stockholders (other than any holders of Dissenting Shares) in accordance with each such Company Stockholder’s Pro Rata Portion set forth in the Estimated Adjustment Statement, provided that such Company Stockholder has delivered a duly executed Letter of Transmittal to the Exchange Agent and any other required documents in accordance with Section 3.2.

For additional clarity, the Parties intend pursuant to this Section 4.2(d) that (i) to the extent that the Post-Closing Adjustment Amount is a negative number, Purchaser’s recourse shall first be to the Estimated Adjustment Cash Amount, if any, and then, second to the Adjustment Escrow Shares Amount, and (ii) in no event shall the aggregate number of Purchaser Shares issued pursuant to this Agreement, and in connection with the Transactions, exceed the Base Purchaser Share Amount (it being understood that the Estimated Net Adjustment Amount and/or the Post-Closing Adjustment Amount shall be payable in cash, subject to Section 4.2(e), to the extent the aggregate number of Purchaser Shares issued pursuant to this Agreement, and in connection with the Transactions, would otherwise exceed the Base Purchaser Share Amount).

(e)            Notwithstanding anything to the contrary contained herein, in no event shall the Aggregate Adjustment Cash Amount (together with any indemnification payments made by Purchaser pursuant to Section 11.3) exceed an amount equal to 19.9% of the product of the Purchaser Share Price multiplied by the Purchaser Shares issued to the Company Stockholders pursuant to this Agreement (taking into account any Purchaser Shares released to the Company Stockholders from the Adjustment Escrow Shares Amount, but excluding the Indemnity Shares Amount).

Article V

REPRESENTATIONS AND WARRANTIES REGARDING THE COMPANY ENTITIES

Except as set forth in the corresponding section (or any other section to the extent the relevance of such information to such first section is reasonably apparent on the face of the applicable disclosure) of the disclosure schedules delivered to Purchaser and Merger Sub by the Company (the “Company Disclosure Schedules”), the Company represents and warrants to Purchaser and Merger Sub as of the date hereof and, with respect to the Company Fundamental Representations, as of the Closing Date, as follows:

5.1           Organization of the Company.

(a)           The Company is validly existing and in good standing under the Laws of its jurisdiction of incorporation and has all requisite corporate power and authority to own, lease, and operate its properties and assets and to conduct the Business.

(b)           The Company is validly licensed or qualified to do business and (where such concept is applicable) is in good standing under the Laws of each jurisdiction in which the properties and assets leased or owned by it or the conduct of the Business makes such licensing or qualification necessary or advisable, except where the failure to be licensed or qualified would not reasonably be expected to be material to the Business or the Company’s properties or assets.

(c)           The Company has made available to Purchaser true and complete copies of its certificate of incorporation and bylaws, including all amendments thereto, in each case as in effect as of the date hereof. The Company is in compliance in all material respects with its Organizational Documents.

5.2           Authorization; Board Approval; Voting Requirements.

(a)           The Company has all requisite corporate power and authority to execute, deliver, and perform this Agreement and its Related Agreements and, subject to obtaining the Required Company Stockholder Approval, to consummate the transactions contemplated hereby and thereby. The execution, delivery and performance by the Company of this Agreement and its Related Agreements and the consummation by the Company of the transactions contemplated hereby and thereby have been validly authorized by all necessary action by the Company Board, and, other than obtaining the Required Company Stockholder Approval, no other corporate action by the Company or the Company Stockholders is necessary to authorize this Agreement or its Related Agreements or to consummate the transactions contemplated hereby or thereby. The Company has validly executed and delivered this Agreement, and, at the Closing, will have validly executed and delivered its Related Agreements. This Agreement and each of the Related Agreements to which the Company is a party constitute, or when executed and delivered by the Company, shall constitute the legal, valid, and binding obligations of the Company, enforceable against the Company in accordance with its respective terms, subject to the Enforceability Limitations.

(b)           The Company Board, at a meeting duly called and held at which all directors of the Company were present or participated and voted, has unanimously adopted resolutions (i) determining that this Agreement and the Transactions are advisable, fair to, and in the best interests of the Company and the Company Stockholders, (ii) approving and declaring advisable this Agreement and the Transactions, (iii) approving the Company’s Related Agreements and the transactions contemplated thereby, (iv) directing that the adoption of this Agreement be submitted to a vote of the Company Stockholders and (v) recommending to the Company Stockholders approval of each of the matters requiring the Required Company Stockholder Approval.

(c)           The only vote or Consent of the Company Stockholders required to adopt this Agreement and approve the Merger, the Company’s Related Agreements, the other transactions contemplated hereby and thereby, and the other matters set forth in the Written Consent, is the affirmative vote of the holders of at least two-thirds of the outstanding Voting Common Stock voting as a single class (the “Required Company Stockholder Approval”). No other vote of the Company Stockholders is required by Law, the Organizational Documents of the Company, or any Contract to which the Company is a party.

5.3           Capitalization of the Company.

(a)           The authorized capital stock of the Company consists of 1,727,250 shares, all of which are designated as Company Common Stock, of which (A) 100,000 shares are designated as Class A Common Stock, (B) 1,400,000 shares are designated as Class B Common Stock, (C) 2,250 shares are designated as Class M Common Stock, and (D) 225,000 shares are designated as Class N Common Stock. As of the date of this Agreement, there are 9,439 shares of Class A Common Stock issued and outstanding, 944,128 shares of Class B Common Stock issued and outstanding, 1,048.002 shares of Class M Common Stock issued and outstanding, and 118,000.854 shares of Class N Common Stock issued and outstanding.

(b)           All such issued and outstanding shares of capital stock of the Company, including the Company Common Stock, (x) have been duly authorized, (y) are validly issued, fully-paid and non-assessable and (z) were not offered, issued or granted in violation of any preemptive right, subscription right, right of first refusal or other similar right.

(c)           Except for this Agreement and repurchase rights pursuant to the Management Stock Plan, there are no outstanding options, warrants, rights, calls, convertible securities or other Contracts obligating any Company Entity to issue, transfer, sell, repurchase or redeem any Equity Interests of the Company Entities (including, for the avoidance of doubt, pursuant to the Management Stock Plan). Except for the Phantom Stock Plan, there are no outstanding or authorized stock appreciation, phantom or similar rights with respect to the Company. Other than the Company Stockholder Support Agreements, there are no voting trusts, stockholder agreements, proxies or other Contracts, obligations or understandings in effect to which the Company is a party with respect to the ownership, voting or transfer of any of the Company’s Equity Interests. The Company has no outstanding debt or debt instruments providing for voting rights with respect to the Company to the holders thereof. There are no existing rights with respect to registration under the Securities Act of 1933, as amended, of any Equity Interests in the Company Entities. There are no preemptive or other similar rights or Liens on any Equity Interests of the Company Entities.

(d)           Set forth on Schedule 5.3(d) is a true and complete list of all loans which are outstanding as of the date hereof made by the Company to the Company Stockholder Debtors to fund such Company Stockholder Debtors’ purchase of Company Shares (together with any such loans made after the date hereof in compliance with Section 7.1, the “Company Stockholder Loans”), and the amount of principal outstanding under each such Company Stockholder Loan as of the date hereof.

(e)           As of the date hereof, the Company Common Stock is owned of record, in those amounts, and by those holders of Company capital stock, set forth on Schedule 5.3(e), and such ownership is free and clear of all Liens (other than restrictions under applicable securities Laws), which Company Common Stock represents all of the issued and outstanding capital stock of the Company. As of immediately prior to the Closing, the Company Common Stock is owned of record, in those amounts, and by those holders of Company capital stock, set forth on Schedule 5.3(e), excluding any Company Shares issued in connection with the Permitted M/N Option Grants and any repurchases or net exercises of Company Shares pursuant to the Management Stock Plan during the period between the date of this Agreement and the Closing, and such ownership is free and clear of all Liens (other than restrictions under applicable securities Laws). No Person other than the Company Stockholders listed on Schedule 5.3(e) is entitled to receive any payment or property in connection with the Merger in respect of any Company Shares or other Equity Interests of the Company. The Pro Rata Portions to be received by each Company Stockholder set forth in the Estimated Adjustment Statement shall be, as of the Closing Date, accurate and complete, and the calculations performed to compute the information contained therein comply with the applicable provisions of this Agreement.

5.4           Subsidiaries.

(a)           Other than its Subsidiaries listed on Schedule 5.4(a) (such Subsidiaries, the “Company Subsidiaries”) and (prior to the Spinoff) EIS, the Company does not directly or indirectly own, or have any interest in or right to acquire or control, any Equity Interests of any other Person.

(b)           Each Company Subsidiary is validly existing and (to the extent such concept exists under applicable Law) in good standing under the Laws of its jurisdiction of incorporation and has all requisite corporate power and authority to own, lease and operate its properties and assets and to conduct the Business, except where the failure to be in good standing would not reasonably be expected to have a Company Material Adverse Effect.

(c)           The Company is, directly or indirectly, the record holder and Beneficial Owner of all of the outstanding Equity Interests of the Company Subsidiaries, free and clear of any Lien (other than restrictions under applicable securities Laws). All of such Equity Interests (x) have been duly authorized, (y) are validly issued, fully-paid and non-assessable and (z) were not offered, issued or granted in violation of any preemptive right, subscription right, right of first refusal or other similar right. Except for the Equity Interests in other Company Subsidiaries, no Company Subsidiary owns, directly or indirectly, any Equity Interests in any other Person.

(d)           There are no outstanding options, warrants, rights, calls, convertible securities or other Contracts to which any Company Entity is bound with respect to the transfers, voting or other disposition of the Equity Interests of any Company Subsidiary. There are no outstanding or authorized stock appreciation, phantom or similar rights with respect to the Company Subsidiaries. There are no voting trusts, stockholder agreements, proxies or other Contracts or understandings in effect to which any Company Entity is a party with respect to the voting or transfer of any of the Company Subsidiaries’ Equity Interests. No Company Entity has granted to any Person any Contract, warrant or option, or any other conversion right or right to purchase, subscribe for or receive an issuance of any Equity Interests of such Company Subsidiary.

5.5           Governmental Consents; No Conflicts.

(a)           The execution, delivery, and performance by the Company of this Agreement or its Related Agreements, and the consummation by the Company of the transactions contemplated hereby and thereby, do not and will not require any Consent of or with any Governmental Authority, other than (i) any Consent that is required as a result of any facts or circumstances relating solely to Purchaser or any of its Affiliates, (ii) the filing of the Certificate of Merger with the Secretary of State of the State of Delaware, (iii) (A) the filing with the SEC of the Proxy Statement in accordance with Regulation 14A promulgated under the Exchange Act, (B) the filing with the SEC, and the declaration of effectiveness under the Securities Act, of the Form S-4, and (C) the filing with the SEC of such reports under, and such other compliance with the Exchange Act and the Securities Act as may be required in connection with this Agreement and the Transactions, (iv) such Consents, registrations, declarations, notices or filings as are required to be made or obtained under the securities or “Blue Sky” Laws of various states in connection with the issuance of the Purchaser Shares, (v) such filings with and approvals of the NYSE as are required to permit the consummation of the Merger and the listing of the Purchaser Shares and (vi) the filings, submissions and declarations required under the HSR Act with respect to the Transactions.

(b)           Except as set forth on Schedule 5.5(b), the execution, delivery, and performance by the Company of this Agreement and its Related Agreements, and the consummation by the Company of the transactions contemplated hereby and thereby, do not and will not, violate, conflict with, result in a breach, cancellation or termination of, constitute a default under, result in the creation of any Lien on any of the properties or assets of any Company Entity under, or result in a circumstance that, with or without notice or lapse of time or both, would constitute any of the foregoing under, (i) any Law or Order applicable to or binding on the Company Entities or any of their respective properties or assets, (ii) any Material Contract, (iii) any Permit held by any Company Entity or (iv) any of the Organizational Documents of the Company, except, in the case of each of clauses (ii) and (iii), where such violation, conflict, breach, cancellation, termination or default would not, individually or in the aggregate, be expected to be material to the Company Entities taken as a whole.

5.6           Company Financial Statements.

(a)           Set forth on Schedule 5.6 are true and complete copies of the Company Financial Statements. The Company Financial Statements (i) are correct and complete in all material respects, (ii) have been prepared in accordance with GAAP and, in the case of the Audited Carve-Out Financial Statements, Regulation S-X promulgated pursuant to the Exchange Act, in each case in all material respects, and (iii) present fairly, in all material respects, the financial condition and results of operations, changes in cash flows and changes in stockholders’ equity of the Company’s “Water Solutions Business Unit” (as described therein) as of the respective dates thereof and for the respective periods covered thereby, subject to, in the case of the Unaudited Carve-Out Financial Statements, normal recurring year-end adjustments (the effect of which will not, individually or in the aggregate, be material) and the absence of footnotes.

(b)           No financial statements of any Person other than the Company Entities are required by GAAP to be included in the Company Financial Statements, it being understood that the Company Financial Statements have been prepared on a carve-out basis to exclude EIS and the EIS Business. Except for the Company Stockholder Loans, the Company Entities have not extended or maintained credit, arranged for the extension of credit, or renewed an extension of credit, in the form of a personal loan to or for any of its directors or executive officers (or equivalent thereof). None of the Company Entities is a party to any off-balance sheet arrangements that could have a material current or future effect upon the financial condition or results of operations of the Company Entities.

(c)           The Company Entities maintain a system of internal accounting controls sufficient to provide reasonable assurance that (i) all transactions are executed in accordance with management’s general or specific authorizations, (ii) all transactions are recorded as necessary to permit the preparation of financial statements in conformity with GAAP and any other applicable Laws and to maintain proper accountability for assets, (iii) access to assets is permitted only in accordance with management’s general or specific authorization and (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences.

(d)           Except as set forth on Schedule 5.6(d)(i), the Company Entities do not have any Liabilities except for (i) Liabilities reflected or reserved against in the Company Financial Statements, (ii) Liabilities incurred in the ordinary course of business since the Interim Balance Sheet Date or in contemplation of the Transactions or with respect thereto since the Interim Balance Sheet Date, and (iii) Liabilities that would not, individually or in the aggregate, be material. Without limiting the generality of the foregoing, the Company Entities do not have any Liabilities in respect of EIS or the EIS Business except as set forth on Schedule 5.6(d)(ii).

(e)           Set forth on Schedule 5.6(e) is a true and complete list of all outstanding Indebtedness (other than Indebtedness described in clauses (l) through (v) of the definition thereof) of the Company Entities.

5.7           Banking Relationships. Set forth on Schedule 5.7 are the names and locations of all banks and trust companies in which the Company Entities have banking accounts, investment accounts or lines of credit and with respect to each such account or line of credit, the names of all persons authorized to draw thereon or to have access thereto.

5.8           Accounts Receivable; Inventory; Accounts Payable.

(a)           All notes receivable and accounts receivable existing as of the Interim Balance Sheet Date are reflected in accordance with GAAP on the Interim Balance Sheet and represent valid obligations arising from sales actually made or services actually performed by the Company Entities in the ordinary course of business and are free and clear of all Liens (except Permitted Liens). Such notes and accounts receivable will as of the date of the Effective Time be current and collectible, net of the respective reserve shown in the corresponding line items shown on the Interim Balance Sheet. Subject to such reserves, each such note and account receivable either has been or will be collected in full, without any setoff, within ninety (90) days after the date on which it first becomes due and payable. As of the date hereof, there is no contest, claim, defense or right of setoff, other than returns in the ordinary course of business, relating to the amount or validity of material amount due under any note or account receivable, except to the extent written down on the Company Financial Statements or the books and records of the Company Entities in accordance with GAAP consistent with the Company Entities’ past custom and practices.

(b)           The inventory items of the Company Entities existing as of the Interim Balance Sheet Date consist of purchased goods as set forth on the Interim Balance Sheet and are of a quality and quantity useable and saleable in the ordinary course of business, except for obsolete, damaged or outdated inventory written down on the Company Financial Statements or the books and records of the Company Entities in accordance with GAAP consistent with the Company Entities’ past custom and practices.

(c)           Schedule 5.8(c) lists (i) all accounts payable of the Company Entities as of the Interim Balance Sheet Date, and (ii) any customer deposits or other deposits held by the Company Entities as of February 6, 2022. All accounts payable of the Company Entities that arose after the Interim Balance Sheet Date have been recorded on the accounting books and records of the Company Entities. All outstanding accounts payable of the Company Entities represent valid obligations arising from bona fide purchases of assets or services.

(d)           All books and records of the Company Entities are accurate and complete in all material respects and are maintained in accordance with applicable Laws in all material respects.

5.9           Absence of Certain Changes. Since the Interim Balance Sheet Date, (i) each of the Company Entities has conducted its business and operations in the ordinary course of business, (ii) there has not been any material damage, destruction or loss, whether or not covered by insurance, affecting the Company Entities or any change, event or occurrence that had or would reasonably be expected to have a Company Material Adverse Effect and (iii) none of the Company Entities have taken any of the actions that would require Purchaser’s consent as set forth in Section 7.1.

5.10           Title to and Sufficiency of Properties and Assets.

(a)           Except for assets disposed of in the ordinary course of business since the Interim Balance Sheet Date that are not material to the Business or operations of the Company Entities, or as set forth on Schedule 5.10(a), each of the Company Entities has good and valid title to all properties and assets purported to be owned by it, or has a valid leasehold interest in or a valid license to use all of its properties or assets purported to be leased or licensed by it, free and clear of all Liens, except for Permitted Liens.

(b)           The properties, buildings, plants, structures, furniture, fixtures, machinery, equipment, vehicles and other items of tangible personal property owned, leased or licensed by the Company Entities (i) constitute all of the material properties and assets used in or necessary to conduct the Business and are sufficient for the continued conduct of the Business after the Closing in substantially the same manner as conducted prior to the Closing, (ii) are structurally sound, are in good operating condition and repair (subject to normal wear and tear), and are adequate for the uses to which they are being put in all material respects, and (iii) none is in need of maintenance or repairs except for ordinary, routine maintenance and repairs that are not material in nature or cost. Except for (i) overhead services, (ii) those assets and liabilities set forth in the Spin-Off Documents and (iii) as otherwise set forth on Schedule 5.10(b), none of the properties, buildings, plants, structures, furniture, fixtures, machinery, equipment, vehicles and other items of tangible personal property owned, leased or licensed by EIS and/or the Spinoff Business are used in connection with, or are necessary for the conduct of the Business.

5.11           Real Property.

(a)           Schedule 5.11(a)(i) sets forth a correct list of the addresses and the fee owner of all real property owned by the Company Entities (the “Owned Real Property”). The Company and its Subsidiaries, as applicable, have good fee simple and marketable fee title to all of the Owned Real Property free and clear of any Lien (other than Permitted Liens). Except as set forth on Schedule 5.11(a)(ii), none of the Company Entities have leased, licensed or otherwise granted to any Person the right to use or occupy the Owned Real Property, and there are no outstanding options, rights of first offer or rights of first refusal to purchase or lease the Owned Real Property (or, in each case, any portion thereof or interest therein).

(b)           Schedule 5.11(b) sets forth a correct list of all Contracts pursuant to which any Company Entity leases, subleases, licenses or otherwise occupies any real property as tenant, subtenant, licensee or otherwise (the Contracts required to be listed on Schedule 5.11(b), each, a “Real Property Lease”), together with the address of the related property (the “Leased Real Property” and, together with the Owned Real Property, the “Company Real Property”). The Company has provided to Purchaser a complete and correct copy of each Real Property Lease, including all amendments, modifications, exhibits and schedules. The applicable Company Entity has a valid leasehold interest under each Real Property Lease, free and clear of any Lien (other than Permitted Liens). Each such Real Property Lease is in full force and effect and constitutes a legal, valid, and binding obligation of the Company Entities and, to the Company’s Knowledge, the other party or parties thereto, enforceable against the Company Entities and, to the Company’s Knowledge, such other party or parties in accordance with its terms, subject to the Enforceability Limitations. The Company Entities have performed and complied in all material respects with all of their covenants and obligations under each Real Property Lease, and no Company Entity nor, to the Company’s Knowledge, any other party to a Real Property Lease, is in, or is alleged to be in, breach of or default under such Real Property Lease, nor has there occurred an event or condition that, with the passage of time or giving of notice (or both), would constitute such a breach or default. The Company does not sublease, as sublessor, any portion of the Leased Real Property to any other Person. To the Company’s Knowledge, there are no material disputes with respect to any lease or other agreement for any Leased Real Property.

(c)           To the Company’s Knowledge, there are no condemnation proceedings pending, threatened or proposed against any Company Entity and, to the Company’s Knowledge, there is no existing plan or study by any governmental body or any other Person that challenges or otherwise adversely affects the continuation of the use or operation of the Company Real Property.

5.12           Intellectual Property; Data Security.

(a)           Schedule 5.12(a)(i) (with respect to the Company Trademarks), Schedule 5.12(a)(ii) (with respect to the Company Patents), and Schedule 5.12(a)(iii) (with respect to the Company Copyrights) set forth complete and accurate lists of all of the Company Trademarks, Company Patents, and Company Copyrights that are the subject of a registration or pending application, including the owner, application and registration or grant number (if applicable), relevant jurisdiction, status/next deadline in each case, registered with a Governmental Authority or a domain name registrar. Schedule 5.12(a)(iv) sets forth a complete and accurate list of all material Company Owned Software. All of the Company Owned Intellectual Property is subsisting, and to the Company’s Knowledge, valid (or, in the case of pending applications, validly applied for) and enforceable. The Company Entities own all right, title, and interest in and to the Company Owned Intellectual Property, free and clear of any Lien (other than Permitted Liens) and have the valid and legally enforceable right to use Company Licensed Intellectual Property as necessary for or used or held for use in the operation of the Business. All registration, maintenance and renewal fees required as of the date of this Agreement to be paid in connection with the Company Owned Intellectual Property have been paid and all necessary documents and certificates in connection with the foregoing have been filed with the relevant Governmental Authorities for the purposes of registering, perfecting, prosecuting, and maintaining the foregoing. All Company Intellectual Property will be owned or available for use (as applicable) by a Company Entity on substantially similar terms and conditions immediately after the Closing, and there is no (i) Intellectual Property that is owned by, (ii) Company Owned Intellectual Property licenses to, or (iii) Intellectual Property exclusively licensed to, the Spinoff Business that is necessary for or used in the operation of the Business. The Company Intellectual Property constitutes all Intellectual Property that is necessary for or used in the operation of the Business.

(b)           Except as set forth on Schedule 5.12(b), with respect to the Company Owned Intellectual Property: a Company Entity is the sole and exclusive owner, and no Company Entity has transferred to, or permitted under any Contract to which a Company Entity is a party, any third party to retain ownership of or has granted any exclusive licenses to a third party in respect of any of such Company Owned Intellectual Property. No material item of Company Owned Intellectual Property is subject to any action or outstanding Order or settlement agreement or stipulation in any dispute proceeding that restricts in any material manner the use, provision, transfer, assignment or licensing thereof by a Company Entity or affects in any material manner the validity, use, ownership, registrability or enforceability of such Company Owned Intellectual Property.

(c)           The Company Owned Intellectual Property, the conduct of the Business as currently conducted and as proposed to be conducted, and all of the products sold and services provided by a Company Entity in connection therewith, do not infringe, dilute, misappropriate or otherwise violate, and in the past six (6) years, have not infringed (directly, contributorily, by inducement or otherwise), diluted, misappropriated or otherwise violated any Intellectual Property of any other Person. Except as set forth in Schedule 5.12(c), as of the date of this Agreement, and in the past six (6) years, there have been no pending or threatened in writing or to the Company’s Knowledge, threatened orally, claims (including cease and desist letters, invitations to take a license, and indemnification claims or notices), Proceedings or litigation related to the Company Owned Intellectual Property. To the Company’s Knowledge, no third party is infringing, diluting, misappropriating or otherwise violating any Company Intellectual Property in any material manner.

(d)           The Company Entities take and have taken commercially reasonable steps to protect and maintain the Company Owned Intellectual Property constituting trade secrets under applicable Law and the confidentiality of the Know-How in its possession. Except where failure to do so would not be material to the Company Entities taken as a whole, each employee, consultant or contractor of a Company Entity that has contributed to the creation, development, invention, modification or improvement of material Company Owned Intellectual Property used in the operation of the Business has (i) entered into a written agreement with a Company Entity that obliges such employee, consultant or contractor to disclose and assign to a Company Entity any and all rights, title and interests in and to the Company Owned Intellectual Property and (ii) assigned all such rights, title and interests to such Company Entity in all jurisdictions where such disclosure and assignment is not mandated by operation of applicable Law.

(e)           The Company Entities own or have obtained and possess valid licenses to use all Software, hardware, network and other computer systems used by the Company in the operation of the Business immediately prior to Closing (collectively, the “Company Systems”), and all such Company Systems will be owned or available for use (as applicable) by the Company Entities on identical terms and conditions immediately after the Closing. The Company Systems: (i) are in satisfactory working order and are scalable to meet current and reasonably anticipated capacity, (ii) have appropriate security, back-ups, disaster recovery arrangements, and hardware and software support and maintenance to minimize the risk of material error, breakdown, failure, or security breach occurring and to ensure if such event does occur it does not cause a material disruption to the operation of the Business, (iii) are configured and maintained to minimize the effects of viruses and do not contain Trojan horses or other malicious code, and (iv) have not suffered any material error, breakdown, failure, or security breach. In the thirty-six (36) months ending on the Closing Date, there has not been any material failure with respect to any of the Company Systems that has not been remedied or replaced.

(f)            The Company Entities have not embedded, used or distributed any open source, copyleft or community source code (including but not limited to any libraries or code, software, technologies or other materials that are licensed or distributed under any General Public License, Lesser General Public License or similar license arrangement or other distribution model described by the Open Source Initiative at www.opensource.org, collectively “Open Source Software”) in connection with any of their products or services that are generally available or in development in any manner that would materially restrict the ability of a Company Entity to protect its proprietary interests in any such product or service or in any manner that requires, or purports to require (i) any Company Intellectual Property (other than the Open Source Software itself) be disclosed or distributed in source code form or be licensed for the purpose of making derivative works; (ii) any restriction on the consideration to be charged for the distribution of any Company Owned Intellectual Property; (iii) the creation of any obligation for the Company with respect to Company Owned Intellectual Property, or the grant to any third party of any rights or immunities under Company Owned Intellectual Property; or (iv) any other limitation, restriction or condition on the right of any Company Entity with respect to its use or distribution of any Company Owned Intellectual Property.

(g)           The Company Entities are in compliance in all material respects with (a) all of the following to the extent relating to the collection, processing, storage or disclosure of any Personal Data (whether in electronic or any other form or medium) or otherwise relating to privacy and applicable either to the Company Entities or to the conduct of their businesses as conducted as of the date hereof: (i) all applicable Laws, (ii) customer Contracts by which any Company Entity is bound, including privacy policies of the Company Entities and (iii) Material Contracts (together “Data Privacy Requirements”), and (b) all of the following to the extent relating to the security of Confidential Information (whether in electronic or any other form or medium) and applicable either to the Company Entities or to the conduct of their businesses as conducted as of the date hereof: (A) all applicable Laws and applicable industry standards, (B) Contracts pursuant to which any Company Entity licenses data used in the conduct of its business as conducted as of the date hereof, and (C) Material Contracts pursuant to which the Company Entities license data used in the conduct of their businesses as conducted as of the date hereof. The Company Entities have established and maintain reasonable technical, administrative, and physical safeguards to protect Personal Data or Confidential Information within their possession from loss or unauthorized access or acquisition (“Data Security Incident”). There have been no Data Security Incidents impacting Personal Data stored by or on behalf of any Company Entity. The Company Entities have not received notice of any alleged noncompliance with the Data Privacy Requirements or any actual or potential Data Security Incident, nor to the Company’s Knowledge is there any basis for any such allegation. Neither the execution, delivery or performance of this Agreement nor any of the agreements contemplated by this Agreement, nor the consummation of any of the Transactions violate the Data Privacy Requirements.

5.13           Customers and Suppliers.

(a)           Schedule 5.13(a) sets forth (i) the top twenty (20) largest customers measured by invoiced sales by the Company Entities during the twelve (12) month period ending on the Interim Balance Sheet Date (collectively, the “Material Customers”), and (ii) the amount of consideration paid to the Company Entities by each Material Customer during such period. None of the Company Entities has received any written notice, or to the Company’s Knowledge, oral notice, that any of the Material Customers has ceased, and to the Company’s Knowledge, no Material Customer intends to cease after the Closing, to use its goods or services or to otherwise terminate or materially reduce its relationship with the Company Entities.

(b)           Schedule 5.13(b) sets forth (i) the top twenty (20) suppliers of the Company Entities measured by gross spending by the Company Entities during the twelve (12) month period ending on the Interim Balance Sheet Date (collectively, the “Material Suppliers”) and (ii) the consideration paid by the Company Entities to such Material Suppliers during such period. None of the Company Entities have received any written notice, or to the Company’s Knowledge, oral notice, that any of the Material Suppliers has ceased, and, to the Company’s Knowledge, no Material Supplier intends to cease after the Closing, to supply goods or services or to otherwise terminate or materially reduce its relationship with the Company Entities.

5.14           Material Contracts. Schedule 5.14 sets forth a correct list as of the date hereof of all of the Contracts of the following types to which any of the Company Entities is a party or by which any of the Company Entities or their respective properties or assets is bound or receives a benefit under:

(a)           all Contracts providing for a merger, consolidation, acquisition or sale of all or a material (to the Company Entities, taken as a whole) portion of the assets of, or other extraordinary transaction in respect of, any Company Entity with or to any other Person, or any material capital investment in any Person, in each case entered into since January 1, 2017 or pursuant to which any Company Entity has any ongoing indemnification or other similar surviving obligations;

(b)           any Contract (other than purchase orders or sales orders) entered into with a customer or supplier which involves the payment or receipt of an amount in excess of Five Million Dollars ($5,000,000) per annum (measured by the trailing (12) month period ending on the Interim Balance Sheet Date) and which cannot be terminated within ninety (90) days;

(c)           for the purchase of materials, supplies, goods, services, equipment or other assets, which is with a Material Supplier (other than purchase orders);

(d)           for the sale or license by a Company Entity of materials, supplies, goods, services, equipment or other assets, which is with a Material Customer (other than sales orders);

(e)           that (1) requires a Company Entity to purchase its total requirements of any product or service from a third party or that contains “take or pay” provisions, (2) contains a “most-favored-nation” clause or similar term that provides preferential pricing or treatment to any third party, (3) contains any non-competition or non-solicitation covenant by a Company Entity in favor of another Person or otherwise limits the freedom of a Company Entity to engage in any line of business in any area or (4) grants any Person an option or a first refusal, first offer or similar preferential right to purchase or acquire any assets of any Company Entity;

(f)           that is with a Governmental Authority;

(g)           that is between a Company Entity, on the one hand, and any Related Party or EIS, on the other hand (each, an “Affiliate Agreement”);

(h)           any credit agreement, loan agreement or indenture relating to Indebtedness of a Company Entity;

(i)            any Contract under which the Company Entities have permitted any material asset to become encumbered by a Lien (other than a Permitted Lien);

(j)            that provides for, directly or indirectly, the establishment or operation or a partnership or joint venture, or otherwise involves a sharing of profits, losses, costs or liabilities with any Person;

(k)           pursuant to which a Company Entity effected any compromise or settlement of any Proceeding since the Interim Balance Sheet Date;

(l)            the primary purposes of which is the indemnification of any other Person by a Company Entity;

(m)          that provides for a retention, severance, change in control or sale bonus payment in excess of One Hundred Thousand Dollars ($100,000) (or would provide for such bonus subject to the satisfaction of any conditions or contingencies) and any Company Retention Bonus Agreements;

(n)           (A) that is a written Contract for the employment of any Employee located outside of the United States (i) with annual base salary and target annual cash bonus in excess of $150,000; (ii) that is not terminable at will or upon notice of sixty (60) days or less for a cost (exclusive of costs arising prior to termination) of less than $200,000; or (iii) that would result in any payments to such person upon consummation or solely as a result of the Merger; (B) that is a written Contract for the employment of any Employee located in the United States (x) with an annual base salary in excess of $150,000; (y) that is not terminable at will; or (z) that would result in any payments to such individual upon the consummation or as a result of the Merger (either alone or in combination with another event);

(o)           any Contract providing for a license to a Company Entity of Company Licensed Intellectual Property (other than licenses of commercially available Software licensed under a click-wrap or shrink-wrap license or subscription agreement, in each case, on a non-exclusive basis and having an annual license, subscription or maintenance fee of $250,000 or less in the aggregate);

(p)           any lease or agreement under which a Company Entity is lessee of, or holds or operates any personal property owned by any other party, for which the annual rent exceeds $250,000;

(q)           pursuant to which a Company Entity has made or may make a capital investment in, loan to, acquisition or divestiture of the Equity Interests or assets of, any Person, or the acquisition or divestiture of any business or third Person; and

(r)            any Contract providing for a license by a Company Entity of Company Owned Intellectual Property to a third party (other than non-exclusive licenses granted to a Company Entity’s, resellers and end-user customers in connection with the sale, distribution or use of a Company Entity’s products and services in the ordinary course of business).

The Company has provided to Purchaser a true and complete copy (or, with respect to any oral Contract, a written summary of the material terms and conditions of such oral Contract) of each Contract set forth or required to be set forth on Schedule 5.14 (including all amendments, modifications, exhibits and schedules) (collectively with the Real Property Leases, the “Material Contracts”). Each Material Contract is in full force and effect and constitutes a legal, valid, and binding obligation of a Company Entity, and to the Company’s Knowledge, the other party or parties thereto, enforceable against such Company Entity, and to the Company’s Knowledge, such other party or parties in accordance with its terms, subject to the Enforceability Limitations. The Company Entities have performed or complied with all material covenants and obligations under each Material Contract, and neither the Company Entities nor, to the Company’s Knowledge, any other party to a Material Contract is in, or is alleged to be in, material breach of or default under such Material Contract, nor has there occurred an event or condition that with the passage of time or giving of notice (or both) would constitute such a material breach or default by a Company Entity or to the Company’s Knowledge, any other party to such Material Contract. No party to a Material Contract has provided notice to a Company Entity that it plans to terminate any Material Contract or, if in writing (or to the Company’s Knowledge, oral), materially reduce its business with the Company Entities.

5.15           Permits. Each Company Entity has at all times since January 1, 2016 lawfully owned, held, possessed and/or used in the operation of its business all material Permits or other accreditations required by applicable Law to own, lease, and operate its properties and assets and to conduct the Business,. All such Permits and accreditations are valid and in full force and effect, and each Company Entity has performed in all material respects its obligations under and is, and since the Lookback Date has been in compliance, in all material respects, with all such Permits and accreditations. All fees and charges with respect to any Permit or accreditation, as of the date hereof, have been paid in full and all filing, reporting, and maintenance obligations have been completely and timely satisfied in all material respects. There have been no occurrences, events, or Proceedings that are pending, under investigation, or, to the Company’s Knowledge, threatened, nor has any Company Entity received, any notification which has resulted in or would reasonably be expected to result in the material limitation or impairment, modification, revocation, withdrawal, cancellation, lapse, integrity review, suspension, nonrenewal or any other materially adverse action against any material Permit or accreditation. All material Permits and accreditation will continue to be valid and in full force and effect upon the Closing Date.

5.16           Benefit Plans.

(a)           Schedule 5.16(a) sets forth a correct list of all Company Benefit Plans. A true and complete copy of each of the Company Benefit Plans, and all Contracts relating thereto, or to the funding thereof, including all trust agreements, insurance Contracts, administration Contracts, investment management agreements, subscription and participation agreements, and recordkeeping agreements, have been provided to Purchaser. In the case of any Company Benefit Plan which is not in written form, the Company has provided Purchaser with a true and reasonably complete written description of such Company Benefit Plan. A true and complete copy of the most recent annual report, actuarial report, accountant’s opinion of the plan’s financial statements, summary plan description and Internal Revenue Service determination or opinion letter with respect to each Company Benefit Plan, to the extent applicable, has been provided to Purchaser, and there have been no material changes in the financial condition in the respective Company Benefit Plans from that stated in the annual reports and actuarial reports supplied.

(b)           Each Company Benefit Plan has been established, maintained and administered in compliance in all material respects with its terms and the applicable requirements of ERISA, the Code, and any other applicable Laws. The Company Entities and their respective Affiliates have timely performed all obligations required to be performed by it under each Company Benefit Plan. Each Company Benefit Plan that is intended to be qualified under Section 401(a) of the Code has received a favorable determination letter from the Internal Revenue Service or is the subject of a favorable opinion letter from the Internal Revenue Service on the form of such Company Benefit Plan and, to Company’s Knowledge, no event or omission has occurred that would cause any Company Benefit Plan to lose such qualification, require corrective action to the Internal Revenue Service or Employee Plan Compliance Resolution System to maintain such qualification, or adversely affect the qualified status of any such plan or the Tax-exempt status of any related trust. No event has occurred and no condition exists that would subject Purchaser to any excise Tax, fine, encumbrance, material penalty or other liability imposed by ERISA, the Code or any other applicable Law with respect to any Company Benefit Plan.

(c)           Each Company Benefit Plan may be modified, amended or terminated without the consent of any Person, including any participant therein, except for any Company Benefit Plan that is an employment, consulting, severance, grant agreement, separation agreement, or similar agreement with an Employee or former Employee.

(d)           Neither the Company nor any of its ERISA Affiliates has, or has had in the previous six (6) years, any Liability with respect to a Multiemployer Plan or a plan that is subject to Title IV of ERISA. None of the Company Benefit Plans is a “multiple employer plan” (within the meaning of Section 413(c) of the Code) or a “multiple employer welfare arrangement” (within the meaning of Section 3(40) of ERISA), or a plan subject to the minimum funding requirements of Section 412 of the Code or Section 302 of ERISA.

(e)           Except as set forth on Schedule 5.16(e), no Company Benefit Plan (other than the Company Executive Retiree Health Plan) provides for post-employment or retiree welfare benefits, except as required by applicable Laws and there have been no written communications to Employees or former Employees (other than pursuant to the Company Executive Retiree Health Plan) which could reasonably be interpreted to promise or guarantee such employee any post-termination or retiree welfare benefits.

(f)            Neither the Company nor any other “disqualified person” or “party in interest” (as defined in Section 4975(e)(2) of the Code and Section 3(14) of ERISA, respectively) has engaged in any “prohibited transactions” (as defined in Section 406 of ERISA or Section 4975 of the Code) in connection with any Company Benefit Plan.

(g)           None of the Company Entities or any of their respective Affiliates has any obligation to compensate any Person for excise Taxes payable pursuant to Section 4999 of the Code or for Taxes payable pursuant to Section 409A of the Code. Each Company Benefit Plan that is a “nonqualified deferred compensation plan” (as defined under Section 409A of the Code) has been operated in compliance with Section 409A of the Code and has complied with applicable documentary requirements of Section 409A of the Code.

(h)           Each Company Benefit Plan that primarily covers Employees based outside of the United States and/or that is subject to any Law other than United States federal, state or local Law (i) has been established, operated, maintained and administered in compliance with its terms and operated in compliance with all applicable Law, (ii) if required to be registered or approved by a non-United States Governmental Authority, has been registered or approved and has been maintained in good standing with applicable regulatory authorities, and, to the Company’s Knowledge, no event has occurred since the date of the most recent approval or application therefor relating to any such plan that would reasonably be expected to adversely affect any such approval or good standing, (iii) that is intended to qualify for special Tax treatment meets all requirements for such treatment, and (iv) if required to be fully funded or fully insured, is fully funded or fully insured on an ongoing and termination or solvency basis (determined using reasonable actuarial assumptions) in compliance with applicable Law. None of the Company Entities or any of their respective Affiliates maintains, establishes, sponsors, participates in or contributes, has an obligation to contribute to, or has any Liability with respect to, any defined benefit pension plan that is subject to any Law other than any United States federal, state or local Law.

(i)            Neither the execution and delivery by the Company of this Agreement nor the consummation of the Transactions would reasonably be expected to (i) entitle any current or former officer, director, Employee or independent contractor of the Company Entities to any payment or benefit (or result in the funding of any such payment or benefit), or (ii) accelerate the time of vesting or the time of payment, or increase the amount, of any compensation or benefits due to any current or former director, officer, Employee or independent contractor of the Company. None of the payments contemplated by the Company Benefit Plans in connection with this Agreement and the Transactions (whether alone or together with any other actions) would, in the aggregate, constitute excess parachute payments as defined in Section 280G of the Code (without regard to subsection (b)(4) thereof).

(j)            All contributions (including all employer contributions and employee salary reduction contributions), premium payments and other payments required to be made in respect of any Company Benefit Plan, under the terms of any such Company Benefit Plan, related funding arrangement or in accordance with applicable Law, have been paid within the time so prescribed or have been properly accrued in accordance with GAAP.

(k)           There are no Proceedings (other than routine claims for benefits, none of which, individually or in the aggregate, are material to the Company) pending or, to the Company’s Knowledge, threatened, involving any Company Benefit Plan or the assets of any Company Benefit Plan.

5.17           Employee and Labor Matters.

(a)           The Company has made available a true and complete employee census that sets forth, except as identified in Section 5.17(b) below, all persons who were employees, as of February 1, 2022, including for each such individual his or her (a) name, (b) job title, (c) department, (d) base salary or wage rate, (e) date of hire, (f) status as a full-time or part-time employee, (g) exempt or non-exempt status under applicable wage and hour Laws, (h) current year bonus, commission and other incentive-based compensation opportunity and actual bonus, commission, and other incentive-based compensation paid for the prior performance year, (i) accrued vacation and paid time off, (j) principal work location, and (k) leave status. The Company has made available a true and complete list as of February 1, 2022 of its Company-paid temporary employees. As of January 31, 2022, all compensation, including wages, commissions, bonuses, fees and other compensation, payable to all employees, independent contractors or consultants of each Company Entity for services performed on or prior to such date have been paid in full and there are no outstanding agreements, understandings or commitments of any Company Entity with respect to any compensation, commissions, bonuses or fees.

(b)           The Company has made available a true and complete census of all employees of the Company Entities who are represented by a labor organization for the purposes of collective bargaining with respect to such Employee’s employment with such Company Entity (“Union Employees”) that sets forth his or her (i) name or employee identification number; (ii) job classification; (iii) employing entity; (iv) work location; (v) current annual base compensation or annual rate of pay, as applicable; and (vi) the labor organization and bargaining unit.

(c)           Except as disclosed on Schedule 5.17(c), no Company Entity is party to any collective bargaining agreement, works council agreement or any other Contract with a labor organization and since the Lookback Date through the date of this Agreement there has not existed and, to the Company’s Knowledge, there has never been threatened, any (i) labor dispute, arbitration, strike, walkout, boycott, work slowdown, lockout, picketing, work stoppage, or similar involving any labor organization, Employee(s), and/or any Company Entity; (ii) activity, petition, including petitions filed with the National Labor Relations Board, demand or proceeding by any individual or group of individuals, or labor organization, to facilitate organizing, organize, or seek recognition or certification as a bargaining representative of an Employee.

(d)           No executive of any Company Entity has informed any Company Entity in writing of any plan to terminate employment with or services for the Company Entities nor do the Company Entities have a present intention to terminate the employment of any of the foregoing. To the Company’s Knowledge, no employee of the Company Entities is obligated under any Contract (including licenses, covenants or commitments of any nature) or other agreement, or subject to any Order of any court or administrative agency, that would interfere with the use of such employee’s reasonable best efforts to promote the interests of any Company Entity or that would conflict with the Company Entities’ business.

(e)           Since the Lookback Date, the Company Entities have been in compliance in all material respects with all applicable Laws pertaining to labor and employment practices to the extent they relate to employees, volunteers, interns, consultants and independent contractors of the Company Entities, including without limitation, all Laws relating to collective bargaining, labor relations, equal employment practices, employment discrimination, harassment, retaliation, reasonable accommodation, disability rights or benefits, immigration, wages, hours, overtime compensation, the classification and payment of employees and independent contractors, child labor, hiring, promotion, and termination of employees, working conditions, meal and break periods, privacy, health and safety (including compliance with the Occupational Safety and Health Act), workers’ compensation, leaves of absence, paid sick leave, unemployment insurance, payment of social security and other Taxes. Except as set forth on Schedule 5.17(d), no Company Entity has incurred, and no circumstances exist under which any Company Entity would reasonably be expected to incur, any Liability arising from the misclassification of employees as consultants or independent contractors and/or from the misclassification of employees as exempt from the requirements of the Fair Labor Standards Act or similar state Laws.

(f)            To the Company’s Knowledge, since the Lookback Date, there are no Proceedings or Orders against any Company Entity pending, or to Company’s Knowledge, threatened to be brought or filed, by or before any Governmental Authority by or concerning any current or former applicant, employee, consultant or independent contractor of any Company Entity, and there have been no such Proceedings or Orders pending, or to the Company’s Knowledge, threatened.

(g)           Except as set forth on Schedule 5.7(g), no employee of any Company Entity is employed pursuant to a visa, work permit or other work authorization that is time-limited. The Company Entities are in compliance with and have complied with all immigration Laws, including Form I-9 requirements and any applicable mandatory E-Verify obligations.

(h)           No Company Entity has, during the ninety (90) day period prior to the date hereof, taken any action that would constitute employee layoffs or plant closings within the meaning of the Worker Adjustment and Retraining Notification Act of 1988, as amended or similar state Law.

(i)            To the Company’s Knowledge, since the Lookback Date, (a) there has been no threatened, any allegation of sexual harassment, sexual abuse or sexual misconduct against (i) any current or former director, manager, or officer of any Company Entity, or (ii) any current or former employee or independent contractor of any Company Entity who, directly or indirectly, supervise or have managerial oversight over (or supervised or had managerial oversight over) any other current or former employees or independent contractors of any Company Entity, and (b) no Company Entity has entered into any settlement agreement related to allegations or threatened allegations of sexual harassment, sexual abuse or sexual misconduct by any current or former director, manager, officer, employee, independent contractor, or other service provider of any Company Entity.

(j)            The Company Entities have (a) taken commercially reasonable steps to minimize potential workplace exposure in light of COVID-19 and (b) have delivered accurate and complete copies of all applicable (i) workplace communications from the Company Entities to employees regarding actions or changes in workplace schedules or employee hours, employee travel, remote work practices, onsite meetings, implementation and enforcement of health and safety, social distancing and return-to-work practices and protocols or other changes that have been implemented in response to COVID-19, (ii) contingency plans for workplace cessation in light of COVID-19, and (iii) policies implemented in relation to COVID-19.

5.18           Environmental Matters. Except as disclosed on Schedule 5.18:

(a)           The Company Entities are, and since the Lookback Date have been, in compliance in all material respects with all Environmental Laws (including holding and complying with all required Environmental Permits).

(b)           No written notice or Environmental Claim from any Governmental Authority or any other Person is pending or unresolved, or to the Company’s Knowledge, threatened against, any Company Entity claiming that (i) any Company Entity or the operation of the Business is in material violation of any Environmental Law or Environmental Permit, or (ii) any of the Company Entities is or is potentially responsible for material Remedial Action or has potential material Liability under Environmental Laws or Environmental Permits.

(c)           No Company Real Property, or to the Company’s Knowledge, any other real property formerly owned, leased, operated or occupied by any Company Entity (or any of their respective predecessors): (i) is listed or proposed to be listed pursuant to CERCLA or any similar Law on the National Priorities List, the SEMS or any state or regional equivalent list of known or suspected contaminated sites, or (ii) is subject to an Environmental Claim, Proceeding or Order or other written request or written demand to take material Remedial Action.

(d)           No Releases of Hazardous Substances have occurred and no Person has been exposed to any Hazardous Substances at, from, in, to, on, or under any Company Real Property or any other real property formerly owned, leased, operated or occupied by the Company Entities (or any of their respective predecessors) that would reasonably be expected to result in material Liability to any Company Entity pursuant to Environmental Law.

(e)           To the Company’s Knowledge, no Company Entity and no predecessor of any Company Entity and no entity previously owned by a Company Entity, has transported or arranged for the treatment, storage, handling, disposal, or transportation of any Hazardous Substances to any off-site location which would reasonably be expected to result in material Liability to a Company Entity pursuant to Environmental Law.

(f)           (i) No Company Entity has entered into or is subject to, any outstanding Order with any Governmental Authority under or relating to any Environmental Laws or Environmental Permits, and (ii) the Company Entities are and have been in material compliance with any such Orders, requirements and agreements.

(g)           There are no Phase I or Phase II environmental assessments which are in the possession of any of the Company Entities (or any advisors or representatives thereof) with respect to any Company Real Property or the Company Entities’ operations which have not been delivered to Purchaser prior to execution of this Agreement.

(h)           Neither the execution of this Agreement nor consummation of the Transactions will require any notification to or consent of any Governmental Authority or the undertaking of any investigations or remedial actions, in each case, pursuant to Environmental Laws.

(i)            Except for the Real Property Leases, ordinary course of Business purchase orders and sales orders, and other Contracts entered into by the Company Entities in the ordinary course of its Business, no Company Entity has assumed responsibility for or agreed to indemnify or hold harmless any Person for any liability or obligation, arising under or relating to Environmental Laws (in each case, which obligation or liability has not expired) and there are no claims threatened or pending under or with respect to any such agreements.

5.19           Taxes.

(a)           All Tax Returns of each Company Entity have been duly and timely filed as required by applicable Law (within any applicable extension periods) and all such Tax Returns are true, complete and correct in all material respects. All Taxes due and payable on or before the Closing Date (whether or not shown or required to be shown on any Tax Return) have been timely paid in full. There has been made available to Purchaser true and complete copies of (i) all Tax Returns of the Company Entities for all taxable periods for which the applicable statute of limitations has not run as of the Closing Date, and (ii) all revenue agents’ reports and other similar reports relating to the audit and examination of the Tax Returns of the Company Entities for all taxable periods ending after December 31, 2015.

(b)           All deficiencies asserted or assessments made as a result of any Proceeding by a Governmental Authority of any Tax Returns of any Company Entity have been fully and timely paid. No Proceeding related to any Liability in respect of Taxes or any Tax Return of any Company Entity by any Governmental Authority is presently pending, nor has any Company Entity received any notice of any request for such an audit or other examination.

(c)           The Company Entities have each complied in all material respects with all applicable Laws, rules and regulations relating to the payment and withholding of Taxes and has duly and timely withheld and has paid over to the appropriate Governmental Authority all amounts required to be so withheld and paid over in connection with amounts paid or owed to any Employee, independent contractor, creditor, shareholder, or other third party for all periods under all applicable Law, and has complied with all material information reporting and backup withholding provisions of applicable Law.

(d)           Each Company Entity is properly registered for and have collected all material sales and use and goods and services and value added and similar Taxes required to be collected, has remitted, or will remit on a timely basis, such amounts to the appropriate Governmental Authority, or has been furnished properly completed exemption certificates and has maintained all such records and supporting documents in the manner required by, and has otherwise been at all relevant times in compliance in all material respects with, all applicable sales and use Tax statutes and regulations.

(e)           There are no Liens with respect to Taxes on the assets or business of any Company Entity (other than Permitted Liens), on any of the properties or assets of any Company Entity or the Company Shares.

(f)            No Company Entity is liable for the Taxes of any Person other than itself as a result of filing unitary, combined or consolidated Tax Returns, as a transferee or successor or by Contract, or is party to or bound by any Tax allocation, Tax indemnification or Tax sharing agreement or arrangement (in each case, other than Taxes imposed under provisions of commercial Contracts entered into in the ordinary course of business the primary purpose of which is other than Taxes).

(g)           The unpaid Taxes of the Company Entities did not, as of the Interim Balance Sheet Date, exceed the reserve for actual Taxes (without regard to any reserve for deferred Taxes established to reflect timing differences between book and Tax income) which has been separately disclosed on the Interim Balance Sheet. No Company Entity will incur any liability for Taxes from the Interim Balance Sheet Date through the Closing Date other than in the ordinary course of business and consistent with reasonable prior practice.

(h)           No Company Entity has (i) waived any statute of limitations applicable to any claim for Taxes, (ii) requested or been granted an extension of the time for filing any Tax Return (other than automatic extensions for income Tax Returns), or (iii) granted to any Person any power of attorney that is currently in force with respect to any Tax matter.

(i)            The Company is not a “foreign person” as defined in Section 1445(f)(3) of the Code.

(j)            The Company is not and has not been a United States real property holding corporation within the meaning of Code §897(c)(2) at any time during the applicable period specified in Code §897(c)(1)(A)(ii).

(k)           No Company Entity will be required to include any item of income in, or exclude any item of deduction from, taxable income for any taxable period ending after the Closing Date as a result of any: (i) change in (or improper use of) any method of accounting for a taxable period ending on or prior to the Closing Date, (ii) closing agreement as described in Section 7121 of the Code (or any corresponding or similar provision of U.S. state, local or non-U.S. Income Tax Law) executed on or prior to the Closing, (iii) intercompany transactions or any excess loss account described in Treasury Regulations under Section 1502 of the Code (or any corresponding or similar provision of U.S. state, local or non-U.S. Income Tax Law), (iv) installment sale or open transaction disposition made on or prior to the Closing, (v) election under Section 108(i) of the Code (or similar provision of U.S. state, local or non-U.S. Tax Law), (vi) prepaid amount received or deferred revenue accrued on or prior to the Closing Date outside the ordinary course of business, (vii) any income under Section 965(a) of the Code, including as a result of any election under Section 965(h) of the Code with respect thereto or (viii) the application of Section 951, 951A, or 956 of the Code to any interest held in a “controlled foreign corporation” (as defined in Section 957 of the Code) with respect to income earned or recognized, payments received or ownership of “United States property” (as defined in Section 956 of the Code) on or prior to the Closing Date (determined without regard to the limitations under Section 952(c)(1) of the Code) and which, for the avoidance of doubt, is attributable, based on an interim closing of the books at the Closing, to any period ending on or prior to the Closing Date.

(l)            Other than with respect to the Spinoff, no Company Entity has ever distributed stock of another Person, or had its stock distributed by another Person, in a transaction that was purported or intended to be governed in whole or in part by Sections 355 or 361 of the Code.

(m)          No Company Entity has entered into a “listed transaction” within the meaning of Treasury Regulation §1.6011-4(b)(2).

(n)           Schedule 5.19(n) lists the U.S. federal Income Tax classification of each Company Entity. No written claim has ever been made by a Governmental Authority in a jurisdiction where Tax Returns with respect to either the Company or any Company Subsidiary are not filed asserting that any Company Entity is or may be subject to Tax in that jurisdiction. Neither the Company nor any other Company Entity has engaged in a trade or business, had a permanent establishment (within the meaning of an applicable Tax treaty), or otherwise become subject to Tax, in each case, in a country other than the country of its formation.

(o)           No Company Entity has requested or received a ruling from any Governmental Authority or signed a closing or other agreement with any Governmental Authority which would affect any taxable period after the Closing Date.

(p)           No Company Entity has deferred any payroll Taxes or availed itself of any of the Tax deferral, credits or benefits pursuant to the CARES Act or otherwise taken advantage of any change in applicable Law in connection with a Public Health Event that has the result of temporarily reducing (or temporarily delaying the due date of) otherwise applicable payment obligations of the Company to any Governmental Authority. The Company has not sought and does not intend to seek a covered loan under paragraph (36) of Section 7(a) of the Small Business Act (15 U.S.C. 636(a)), as added by Section 1102 of the CARES Act.

(q)            The Company and each Company Entity have complied, and are currently in compliance, with all requirements relating to any Tax credits, incentives and any other benefits claimed from an applicable Tax jurisdiction; and, to the Company’s Knowledge, entering into the Transactions will not result in any claw-back of such benefits previously claimed.

Nothing in this Section 5.19 or otherwise in this Agreement shall be construed as a representation or warranty with respect to the amount or availability in a taxable period (or portion thereof) beginning after the Closing Date of any net operating loss, capital loss, Tax credit carryover or other Tax asset generated or arising in or in respect of a taxable period (or portion thereof) ending on or before the Closing Date.

5.20          Proceedings and Orders. There are, and since the Lookback Date have been, no material Proceedings pending or, to the Company’s Knowledge, threatened against any Company Entity or any of their respective directors or officers in their capacities as such, or otherwise affecting the properties or assets of any Company Entity. To the Company’s Knowledge, no event has occurred, and no claim, dispute or other condition or circumstance exists, that will, or that would reasonably be expected to, give rise to or serve as a basis for the commencement of any such Proceedings. There is no material unsatisfied or outstanding judgment, penalty or award against any Company Entity. The operation of the Business is not, and since the Lookback Date has not been, subject to any Order. No Company Entity is a party to or bound by any Contract to settle or compromise any Proceeding under which a Company Entity has any continuing Liability. All judgments, penalties, consent decrees, other compliance agreements, and Orders against any Company Entity or otherwise affecting the properties or assets of any Company Entity are set forth on Schedule 5.20.

5.21          Compliance with Laws. Each Company Entity is, and has at all times since the Lookback Date been, in compliance in all material respects with all Laws applicable to its properties, assets, products, and the Business. No investigation or review by any Governmental Authority is pending or, to the Company’s Knowledge, threatened against any Company Entity. Since the Lookback Date, no Company Entity has received any assertion, whether oral or written, alleging a material violation or failure to comply with any Law to which any of its assets, properties and businesses are subject, nor, to the Company’s Knowledge, has any event occurred and no circumstances exist that (with or without the passage of time or the giving of notice or both) may result in a violation of, conflict with or failure on the part of such Company Entity to conduct its business in material compliance with all applicable Laws.

5.22          Related Party Transactions. Except for the Company Stockholder Loans and the Spinoff Documents, no Related Party has, and no Related Party has at any time since the Lookback Date had, (i) any direct or indirect interest in any material property or asset used in or otherwise relating to the Business, (ii) any indebtedness owed to the Company Entities, (iii) any direct or indirect financial interest in, any contract, transaction or business dealing involving the Company Entities (other than rights as a securityholder and rights to receive compensation for services performed and benefits as an Employee, director or officer of a Company Entity) or (iv) provided any material goods or services to any Company Entity (other than in such Person’s capacity as an Employee, director or officer of such Company Entity).

5.23          Takeover Laws. The Company Board has taken all action necessary in order to exempt this Agreement, the Company’s Related Agreements, the Transactions and the transactions contemplated by the Company’s Related Agreements from, and this Agreement, the Company’s Related Agreements, the Transactions and the transactions contemplated by the Company’s Related Agreements are exempt from, the restrictions on business combinations set forth in Section 203 of the DGCL and any other similar applicable Law. No other “business combination,” “control share acquisition,” “fair price,” “moratorium,” or other similar anti-takeover Law (collectively, “Takeover Laws”) is applicable to this Agreement, the Company’s Related Agreements, the Transactions and the transactions contemplated by the Company’s Related Agreements.

5.24          Anti-Corruption Matters.

(a)            None of the Company Entities nor any director, officer or Employee of the Company Entities nor, to the Company’s Knowledge, any agent, representative or other Person acting on behalf of any Company Entity has (i) violated any provision of the Anti-Corruption Laws, (ii) directly or indirectly, made any bribe, rebate, payoff, influence payment, kickback or other unlawful payment to any Foreign Official to obtain or retain business, (iii) used or attempted to use any corporate funds for any unlawful contribution, gift, entertainment, travel expense or other unlawful expenses relating to political activity or a charitable donation or (iv) made any offer, promise to pay or direct or indirect unlawful payment to or for the use or benefit of any Foreign Official. The Company Entities have instituted and maintains and enforces policies and procedures designed to promote compliance with the Anti-Corruption Laws.

(b)            No Representative of any Company Entity is a Foreign Official.

(c)            There are no, and there have not been any, Proceedings pending or, to the Company’s Knowledge, threatened against any Company Entity or any director, office, agent, Representative, Employee or other Person acting on behalf of a Company Entity involving a violation or alleged violation of any Anti-Corruption Law.

(d)            None of the Company Entities nor any director, officer or Employee of the Company Entities nor, to the Company’s Knowledge, any agent, representative or other Person acting on behalf of a Company Entity (i) is in violation of any anti-money laundering law or (ii) is under investigation by any Governmental Authority for money laundering or any other similar or related activity.

5.25          Trade Compliance; Corrupt Practices; AML Standards; Economic Sanctions.

(a)            Each Company Entity and its respective directors, managers, officers, employees, and to the Company’s Knowledge, each of their respective resellers, distributors or any other Persons acting on behalf thereof, are and have been during the five (5) years preceding the date of this Agreement, in compliance in all material respects with all applicable Laws, regulations, and orders pertaining to trade and economic sanctions and export controls, including such laws and regulations administered and enforced by the U.S. Department of the Treasury’s Office of Foreign Assets Control, the U.S. Department of State Directorate of Defense Trade Controls, and the U.S. Department of Commerce Bureau of Industry and Security (collectively, “U.S. Trade Controls”).

(b)            No Company Entity nor, to the Company’s Knowledge, any Company Entity’s directors, managers, officers, employees, resellers, distributors or any other Person acting on behalf thereof, or any of the Company Entities’ customers, suppliers or vendors, is:

(i)            located, organized, resident or operating in a country or territory that is or may, from time to time be, the target of a comprehensive trade embargo by the U.S. government (presently, Cuba, Iran, North Korea, Syria, or the Crimea region of Ukraine (collectively, “Sanctioned Countries”));

(ii)           the target of restrictions on trade by reason of U.S. Trade Controls, including being identified on a U.S. Government denied, debarred or otherwise prohibited party list, such as Specially Designated Nationals (“SDN”) and Blocked Persons List, owned fifty percent (50%) or more, in the aggregate, by one or more SDNs, Entity List, Denied Persons List, Nonproliferation Sanctions, Arms Export Control Act Debarred List or other U.S. sanctions or restricted listing (collectively, a “Prohibited Party”); or

(iii)          engaged in dealings or transactions in or with Sanctioned Countries or Prohibited Parties in violation of U.S. Trade Controls.

(c)            All products sold or otherwise dealt or traded in by the Company Entities are controlled under export control classification number EAR99.

(d)            The Company Entities have established and maintained a written U.S. Trade Controls program that is consistent with the requirements of the U.S. Trade Controls Laws. The operations of the Company Entities have been conducted at all times in compliance with their U.S. Trade Controls program and the U.S. Trade Controls Laws.

(e)            The Company Entities do not manufacture, assemble, install, service, repair, sell or otherwise deal or trade in any military, government or classified products or services or unclassified products or services that are constructed or provided based on classified specifications, information, orders, instruction or any other type of classified data.

(f)            No Company Entity nor any of their respective directors, officers, members, managers or Employees have been convicted of any criminal offense or found guilty or any civil offense in either case involving U.S. Trade Controls, any Sanctioned Country, any Prohibited Party, fraud, misrepresentation, dishonesty, breach of fiduciary duty, substantive violation of banking or corporate Tax Laws, embezzlement or other fraudulent conversion or misappropriation of property.

(g)            No Company Entity nor any of their respective directors, officers, members, managers, or employees or any third parties acting on its or their behalf has:

(i)            used any corporate or other funds for unlawful contributions, payments, gifts or entertainment (whether in the form of money, products, services or facilities), or made any unlawful expenditures relating to political activity to government officials, candidates or members of political parties or organizations, or established or maintained any unlawful or unrecorded funds in violation of the U.S. Foreign Corrupt Practices Act of 1977, the United Kingdom Bribery Act of 2010, or any other similar Law;

(ii)           offered, promised, paid, accepted or received any unlawful contributions, payments, expenditures, bribes, kickbacks, rebates, discounts or gifts; or

(iii)          otherwise violated or operated in noncompliance with any Laws prohibiting corruption and bribery.

(h)            The Company Entities have established and maintained a written anti-money laundering program that is consistent with the requirements of anti-money laundering Laws. The operations of the Company Entities have been conducted at all times in compliance with their anti-money laundering program and anti-money laundering Laws.

5.26          Brokers. No broker, finder or investment bank is entitled to any brokerage, finder’s or similar fee or commission in connection with the Transactions or the transactions contemplated by any Related Agreement based upon arrangements made by or on behalf of the Company Entities, other than J.P. Morgan Securities LLC and Citigroup Global Markets Inc.

5.27          Insurance. Schedule 5.27 lists all insurance policies and fidelity bonds maintained by the Company Entities covering the assets, business, equipment, properties, operations, employees, officers and directors of the Company Entities. Except as set forth on Schedule 5.27, no Company Entity has received any written notice of any claim by any Company Entity pending under any of such policies or bonds as to which coverage has been questioned, denied or disputed or that the Company Entities has a reason to believe will be denied or disputed by the underwriters of such policies or bonds. In addition, except as set forth on Schedule 5.27, no Company Entity has received any written notice of any pending claim of which its total value (inclusive of defense expenses) would reasonably be expected to exceed the policy limits. All premiums due and payable under all such policies and bonds have been paid, (or if installment payments are due, will be paid if due prior to the Closing Date) and the Company Entities are otherwise in material compliance with the terms of such policies and bonds (or other policies and bonds providing substantially similar insurance coverage). Such policies and bonds (or other policies and bonds providing substantially similar coverage) have been in effect since their respective dates of inception and remain in full force and effect.

5.28          No Other Representations or Warranties. Except for the representations and warranties made by the Company in this Article V or in any Related Agreement, neither the Company nor any other Person makes, and Purchaser has not relied and is not relying on, any express or implied representation or warranty with respect to any of the Company Entities or their respective businesses, operations, assets, Liabilities, conditions (financial or otherwise) or prospects, and the Company hereby disclaims any such other representations or warranties. In particular, without limiting the foregoing disclaimer, except for the representations and warranties made by the Company in this Article V or in any Related Agreement, neither the Company nor any other Person makes or has made any representation or warranty to Purchaser or any of its Affiliates or Representatives with respect to (a) any financial projection, forecast, estimate, budget or prospective information relating to any of the Company Entities or their respective businesses, or (b) any oral or written information presented to Purchaser or any of its Affiliates or Representatives in the course of their due diligence investigation of the Company Entities, the negotiation of this Agreement or in the course of the Transactions.

Article VI

REPRESENTATIONS AND WARRANTIES OF PURCHASER AND MERGER SUB

Except (a) as set forth in the corresponding section (or any other section to the extent the relevance of such information to such first section is reasonably apparent on the face of the applicable disclosure) of the disclosure schedules delivered to the Company by Purchaser and Merger Sub (the “Purchaser Disclosure Schedules”), and (b) as disclosed in any final registration statement, prospectus, report, schedule and definitive proxy statement filed with or furnished to the SEC since January 1, 2019, by Purchaser pursuant to the Securities Act, or the Exchange Act (but disregarding risk factor disclosures contained under the heading “Risk Factors,” or disclosures of risks set forth in any “forward-looking statements” disclaimer or any other statements that are similarly non-specific or cautionary, predictive or forward-looking in nature), Purchaser and Merger Subs hereby represent and warrant to the Company as of the date hereof and, with respect to the Purchaser Fundamental Representations, as of the Closing Date, as follows:

6.1            Organization of Purchaser and Merger Sub.

(a)            Purchaser and Merger Sub are validly existing and in good standing under the Laws of their respective jurisdictions of incorporation and have all requisite corporate power and authority to own, lease and operate their respective properties and assets and to conduct their respective businesses.

(b)            Purchaser and Merger Sub are validly licensed or qualified to do business and (where such concept is applicable) are in good standing under the Laws of each jurisdiction in which the properties and assets leased or owned by Purchaser and Merger Sub or the conduct of their business makes such licensing or qualification necessary or advisable, except where the failure to be licensed or qualified would not reasonably be expected to be material to the business, properties or assets or Purchaser and Merger Sub.

(c)            Purchaser has made available to the Company true and complete copies of its certificate of incorporation and bylaws, including all amendments thereto, in each case as in effect as of the date hereof. Purchaser is in compliance in all material respects with its Organizational Documents.

6.2            Authorization; Board Approval; Voting Requirements.

(a)            Purchaser and Merger Sub have all requisite corporate power and authority to execute, deliver and perform this Agreement and their Related Agreements and, subject to obtaining the Required Purchaser Stockholder Approval and approval of the sole stockholder of Merger Sub, to consummate the transactions contemplated hereby and thereby. The execution, delivery and performance by Purchaser and Merger Sub of this Agreement and their Related Agreements and the consummation by Purchaser and Merger Sub of the transactions contemplated hereby and thereby have been validly authorized by all necessary action by the Purchaser Board, the board of directors of Merger Sub, and, other than obtaining the Required Purchaser Stockholder Approval and approval of the sole stockholder of Merger Sub, no other corporate action by Purchaser, Merger Sub or their respective stockholders is necessary to authorize this Agreement or its Related Agreements or to consummate the transactions contemplated hereby or thereby. Purchaser and Merger Sub have validly executed and delivered this Agreement, and, at the Closing will have validly executed and delivered their Related Agreements. This Agreement and each of the Related Agreements to which Purchaser or Merger Sub is a party constitute, or when executed and delivered by Purchaser or Merger Sub shall constitute, the legal, valid and binding obligations of Purchaser and Merger Sub, as applicable, enforceable against Purchaser and Merger Sub, as applicable, in accordance with its respective terms, subject to the Enforceability Limitations.

(b)            The Purchaser Board, at a meeting duly called and held at which all directors of the Purchaser Board were present or participated and voted, has unanimously adopted resolutions (i) determining that this Agreement and the Transactions are advisable, fair to, and in the best interests of Purchaser and the Purchaser Stockholders, (ii) approving and declaring advisable this Agreement and the Transactions, (iii) approving Purchaser’s Related Agreements and the transactions contemplated thereby, (iv) directing that the adoption of this Agreement be submitted to a vote of the Purchaser Stockholders, and (v) recommending that the Purchaser Stockholders vote to approve the issuance of Purchaser Shares.

(c)            The only vote or Consent of the Purchaser Stockholders required to adopt this Agreement and approve the Merger, Purchaser’s Related Agreements, the other transactions contemplated hereby and thereby, and each of the matters requiring the Required Purchaser Stockholder Approval, is the Required Purchaser Stockholder Approval. No other vote of the Purchaser Stockholders is required by Law, the Organizational Documents of Purchaser or any Contract to which Purchaser is a party.

(d)            Purchaser does not have in effect a “poison pill,” anti-takeover plan or similar stockholder rights plan.

6.3            Capitalization of Purchaser and Merger Sub.

(a)            As of February 3, 2022, the authorized capital stock of Purchaser consists of (i) 200,000,000 shares of common stock, par value $0.01 per share, of which 125,782,456 shares are issued and outstanding, (ii) 10,000,000 shares of preferred stock, par value $0.01 per share, of which zero (0) shares are issued and outstanding. All such issued and outstanding shares of capital stock of Purchaser (x) have been duly authorized, (y) are validly issued, fully-paid and non-assessable and (z) were not issued in violation of any preemptive right, subscription right, right of first refusal or other similar right.

(b)            Except as permitted under this Agreement or as set forth on Schedule 6.3(b), as of February 3, 2022, (i) there are no outstanding options, warrants, rights, calls, convertible securities or other Contracts obligating Purchaser to issue, transfer, sell, repurchase or redeem any of its Equity Interests; (ii) there are no outstanding or authorized stock appreciation, phantom or similar rights with respect to Purchaser; (iii)  there are no voting trusts, stockholder agreements, proxies or other Contracts or understandings in effect to which Purchaser is a party with respect to the voting or transfer of any of Purchaser’s Equity Interests; and (iv) Purchaser has no outstanding debt or debt instruments providing for voting rights with respect to Purchaser to the holders thereof.

(c)            The authorized capital stock of Merger Sub consists of 1,000 shares of common stock, par value $0.01 per share, of which one (1) share is issued and outstanding. All of the issued and outstanding capital stock of Merger Sub is, and at the Effective Time will be, owned by Purchaser. Merger Sub has not conducted any business prior to the date of this Agreement and has no, and prior to the Effective Time will have no, assets, Liabilities or obligations of any nature other than those incident to its formation and pursuant to this Agreement and the Transactions.

6.4            Subsidiaries.

(a)            Other than its Subsidiaries set forth on Schedule 6.4 (such Subsidiaries, the “Purchaser Subsidiaries”), Purchaser does not directly or indirectly own, or have any interest in or right to acquire or control, any Equity Interests of any other Person.

(b)            Each Purchaser Subsidiary is validly existing and (to the extent such concept exists under applicable Law) in good standing under the Laws of its jurisdiction of incorporation and has all requisite corporate power and authority to own, lease, and operate its properties and assets and to conduct Purchaser’s business, except where the failure to be in good standing would not reasonably be expected to have a Purchaser Material Adverse Effect.

(c)            Except as set forth on Schedule 6.4, Purchaser is, directly or indirectly, the record holder and Beneficial Owner of all of the outstanding Equity Interests of the Purchaser Subsidiaries, free and clear of any Lien (other than restrictions under applicable securities Laws). All of such Equity Interests (x) have been duly authorized, (y) are validly issued, fully-paid and non-assessable, and (z) were not issued in violation of any preemptive right, subscription right, right of first refusal or other similar right. There are no outstanding options, warrants, rights, calls, convertible securities or other Contracts to which Purchaser or any Purchaser Subsidiary is bound with respect to the transfer, voting or other disposition of the Equity Interests of any Purchaser Subsidiary. There are no outstanding or authorized stock appreciation, phantom or similar rights with respect to the Purchaser Subsidiaries. There are no voting trusts, stockholder agreements, proxies or other Contracts or understandings in effect to which Purchaser or any Purchaser Subsidiary is a party with respect to the voting or transfer of any of the Purchaser Subsidiaries’ Equity Interests. Neither Purchaser nor any Purchaser Subsidiary has granted to any Person any Contract, warrant or option, or any other conversion right or right to purchase, subscribe for or receive an issuance of any Equity Interests of such Purchaser Subsidiary.

6.5            Governmental Consents; No Conflicts.

(a)            The execution, delivery, and performance by Purchaser and Merger Sub of this Agreement or their Related Agreements, and the consummation by Purchaser and Merger Sub of the transactions contemplated hereby and thereby, do not and will not require any material Consent of or with any Governmental Authority, other than (i) any Consent that is required as a result of any facts or circumstances relating solely to the Company or any of its Affiliates, (ii) the filing of the Certificate of Merger with the Secretary of State of the State of Delaware, (iii) (A) the filing with the SEC of the Proxy Statement in accordance with Regulation 14A promulgated under the Exchange Act, (B) the filing with the SEC, and the declaration of effectiveness under the Securities Act, of the registration statement on Form S-4 in connection with the issuance of the Purchaser Shares in which the Proxy Statement will be included as a prospectus (the “Form S-4”) and (C) the filing with the SEC of such reports under, and such other compliance with the Exchange Act and the Securities Act as may be required in connection with this Agreement and the Transactions, (iv) such Consents, registrations, declarations, notices or filings as are required to be made or obtained under the securities or “Blue Sky” Laws of various states in connection with the issuance of the Purchaser Shares, (v) such filings with and approvals of the NYSE as are required to permit the consummation of the Merger and the listing of the Purchaser Shares and (vi) the filings, submissions and declarations required under the HSR Act with respect to the Transactions.

(b)            Except as set forth on Schedule 6.5(b), the execution, delivery and performance by Purchaser and Merger Sub of this Agreement and their Related Agreements, and the consummation by Purchaser and Merger Sub of the transactions contemplated hereby and thereby, do not and will not violate, conflict with, result in a breach, cancellation or termination of, constitute a default under, result in the creation of any Lien on any of the properties or assets of Purchaser or any of its Subsidiaries under, or result in a circumstance that, with or without notice or lapse of time or both, would constitute any of the foregoing under, (i) any Law or Order applicable to or binding on Purchaser or its Subsidiaries or any of their respective properties or assets, (ii) any Contract to which Purchaser or any of its Subsidiaries is a party or by which Purchaser or its Subsidiaries or any of their respective properties or assets are bound, including any Purchaser Material Contract or Purchaser Real Property Lease, (iii) any Permit held by Purchaser or any of its Subsidiaries or (iv) any of the Organizational Documents of Purchaser or Merger Sub, except, in the case of each of clauses (i) through (iii), where such violation, conflict, breach, cancellation, termination or default would not, individually or in the aggregate, be expected to be material to Purchaser, the Purchaser Subsidiaries and, after the Closing, the Company Entities, taken as a whole.

6.6            Absence of Certain Changes. Since February 16, 2021, there has not been a change, event or occurrence that would result in a Purchaser Material Adverse Effect.

6.7            Assets. Except for assets disposed of in the ordinary course of business since December 31, 2021, or as set forth on Schedule 6.7, Purchaser and Merger Sub have good and valid title to, a valid leasehold interest in, or a valid license to use all of the material properties and assets (tangible or intangible, real or personal) necessary to operate their respective businesses as presently conducted, free and clear of any Lien (other than Permitted Liens).

6.8            Real Property.

(a)            Other than as set forth on Schedule 6.8(a), Purchaser and its Subsidiaries do not own and do not have any right to acquire any real property (the “Purchaser Owned Real Property”).

(b)            Schedule 6.8(b) sets forth a correct list of all Contracts pursuant to which Purchaser or any of its Subsidiaries leases, subleases, licenses or otherwise occupies any real property as tenant, subtenant or licensee with a rental value in excess of $200,000 (each, a “Purchaser Real Property Lease”), together with the address of the related property (the “Purchaser Leased Real Property” and, together with the Purchaser Owned Real Property, the “Purchaser Real Property”). Purchaser has provided to the Company a complete and correct copy of each such Purchaser Real Property Lease, including all amendments, modifications, exhibits and schedules. Purchaser or its Subsidiaries, as applicable, have a valid leasehold interest under each Purchaser Real Property Lease, free and clear of any Lien (other than Permitted Liens). Each such Purchaser Real Property Lease is in full force and effect and constitutes a legal, valid and binding obligation of Purchaser and its Subsidiaries and, to Purchaser’s Knowledge, the other party or parties thereto, enforceable against Purchaser and its Subsidiaries and, to Purchaser’s Knowledge, such other party or parties in accordance with its terms, subject to the Enforceability Limitations. Purchaser and its Subsidiaries have performed and complied with all of their covenants and obligations under each Purchaser Real Property Lease, and neither Purchaser nor its Subsidiaries nor, to Purchaser’s Knowledge, any other party to a Purchaser Real Property Lease, is in, or is alleged to be in, breach of or default under such Purchaser Real Property Lease, nor has there occurred an event or condition that with the passage of time or giving of notice (or both) would constitute such a breach or default. Neither Purchaser nor its Subsidiaries sublease, as sublessor, any portion of the real property owned by Purchaser or its Subsidiaries or subject to their Purchaser Real Property Leases to any other Person.

6.9            Intellectual Property; Data Security.

(a)            All of the Purchaser Owned Intellectual Property is subsisting, and to Purchaser’s Knowledge, valid (or, in the case of pending applications, validly applied for) and enforceable. Purchaser owns all right, title, and interest in and to the Purchaser Owned Intellectual Property, free and clear of any Lien (other than Permitted Liens) and has the valid and legally enforceable right to use the Purchaser Licensed Intellectual Property as necessary for or used or held for use in the operation of Purchaser’s business as currently conducted. The Purchaser Intellectual Property constitutes all Intellectual Property that is necessary for or used in the operation of Purchaser’s business.

(b)            With respect to the Purchaser Owned Intellectual Property, Purchaser or its Subsidiary, as applicable, is the sole and exclusive owner, and neither Purchaser nor its Subsidiaries has transferred to, or permitted under any Contract to which Purchaser is a party, any third party to retain ownership of or has granted any exclusive licenses to a third party in respect of any of such Purchaser Owned Intellectual Property.

(c)            The Purchaser Owned Intellectual Property, the conduct of Purchaser’s business as currently conducted and as proposed to be conducted, and all of the products sold and services provided by Purchaser in connection therewith, do not infringe, dilute, misappropriate or otherwise violate, and since the Lookback Date, have not infringed (directly, contributorily, by inducement or otherwise), diluted, misappropriated or otherwise violated any Intellectual Property of any other Person. Except as set forth on Schedule 6.9(c), as of the date of this Agreement, and since the Lookback Date, there have been no pending, or threatened in writing, claims (including cease and desist letters, invitations to take a license, and indemnification claims or notices), Proceedings, or litigation related to the Purchaser Owned Intellectual Property. To Purchaser’s Knowledge, no third party is infringing, diluting, misappropriating or otherwise violating any material Purchaser Intellectual Property.

(d)            Purchaser and its Subsidiaries take and have taken commercially reasonable steps to protect and maintain the Purchaser Owned Intellectual Property constituting trade secrets under applicable Law and the confidentiality of the Know-How in its possession. Except where failure to do so would not be material to the Purchaser and its Subsidiaries taken as a whole, each employee, consultant or contractor of Purchaser that has contributed to the creation, development, invention, modification or improvement of material Purchaser Owned Intellectual Property used in the operation of Purchaser’s business has (i) entered into a written agreement with Purchaser that obliges such employee, consultant or contractor to disclose and assign to Purchaser any and all rights, title and interests in and to the Purchaser Owned Intellectual Property and (ii) assigned all such rights, title and interests to the Purchaser in all jurisdictions where such disclosure and assignment is not mandated by operation of applicable Law.

(e)            To Purchaser’s Knowledge, Purchaser and its Subsidiaries are in compliance in all material respects with (a) all of the following to the extent relating to the collection, processing, storage or disclosure of any Personal Data (whether in electronic or any other form or medium) or otherwise relating to privacy and applicable either to Purchaser and its Subsidiaries or to the conduct of their businesses as conducted as of the date hereof: (i) all applicable Laws, (ii) customer Contracts by which Purchaser or its Subsidiaries are bound, and (iii) Purchaser Material Contracts, and (b) all of the following to the extent relating to the security of Confidential Information (whether in electronic or any other form or medium) and applicable either to Purchaser and its Subsidiaries or to the conduct of their businesses as conducted as of the date hereof: (A) all applicable Laws, (B) Contracts pursuant to which Purchaser or its Subsidiaries licenses data used in the conduct of its business as conducted as of the date hereof, and (C) Purchaser Material Contracts pursuant to which Purchaser and its Subsidiaries licenses data used in the conduct of their businesses as conducted as of the date hereof.

6.10          Material Contracts. Each Contract that would be required to be filed as an exhibit to any Purchaser SEC Document (as described in Items 601(b)(4) and 601(b)(10) of Regulation S-K under the Securities Act) has been filed as an exhibit to or incorporated by reference in the Purchaser SEC Documents filed prior to the date of this Agreement or the Closing Date, as the case may be (each, a “Purchaser Material Contract”). Subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar Laws of general applicability relating to or affecting creditors’ rights and to general equity principles, each Purchaser Material Contract is a valid and binding agreement of Purchaser or a Subsidiary of Purchaser, as the case may be, and is in full force and effect. None of Purchaser, any Subsidiary of Purchaser or, to Purchaser’s Knowledge, any other party thereto, is in default or breach in any material respect under the terms of any such Purchaser Material Contract.

6.11          Permits. Purchaser and Merger Sub possess or have applied for all material Permits required by applicable Law to own, lease, and operate its properties and assets and to conduct their business as currently conducted, and all such Permits are valid and in full force and effect, and Purchaser and Merger Sub have performed in all material respects their obligations under and are, and since the Lookback Date has been, in compliance, in all material respects, with all such Permits, except, in each case, as would not reasonably be expected to be material to Purchaser, the Purchaser Subsidiaries and, after the Closing, the Company Entities, taken as a whole.

6.12          Benefit Plans. Each Purchaser Plan has been maintained and administered in compliance in all material respects with the applicable requirements of ERISA, the Code, and any other applicable Laws. Each Purchaser Plan that is intended to be qualified under Section 401(a) of the Code has received a favorable determination letter from the Internal Revenue Service or is the subject of a favorable opinion letter from the Internal Revenue Service on the form of such Purchaser Plan and, to Purchaser’s Knowledge, no event or omission has occurred that would cause any Purchaser Plan to lose such qualification.

6.13          Employee and Labor Matters. Except as disclosed on Schedule 6.13, neither Purchaser nor its Subsidiaries is party to any collective bargaining agreement, works council agreement or other labor organization Contract applicable to employees of Purchaser and its Subsidiaries and since the Lookback Date through the date of this Agreement, there has never existed and, to Purchaser’s Knowledge, there is not threatened, any (i) strike, slowdown, picketing or work stoppage, (ii) Proceeding against Purchaser or any of its Subsidiaries alleging a violation of any Laws pertaining to labor relations or employment matters, including any charge or complaint filed by an employee or union with the National Labor Relations Board, the Equal Employment Opportunity Commission or any comparable Governmental Authority or (iii) application for certification of a collective bargaining agent.

6.14          Environmental Matters. Except as disclosed on Schedule 6.14:

(a)            Purchaser is, and since the Lookback Date has been, in compliance in all material respects with all Environmental Laws applicable to its business, except for any such non-compliance that would not reasonably be expected to be material to Purchaser, the Purchaser Subsidiaries and, after the Closing, the Company Entities, taken as a whole.

(b)            Since the Lookback Date, no written notice from any Governmental Authority has been received by Purchaser claiming that (i) the operation of its business is in material violation of any Environmental Law or Environmental Permit, or (ii) Purchaser is responsible for Remedial Action with respect to the operation of its business, except in each case of (i) and (ii), as would not reasonably be expected to be material to Purchaser, the Purchaser Subsidiaries and, after the Closing, the Company Entities, taken as a whole.

(c)            To Purchaser’s Knowledge, no Purchaser Real Property or other real property formerly leased or occupied by Purchaser (i) is listed or proposed to be listed pursuant to CERCLA or any similar Law, the National Priorities List, the SEMS or any state or regional equivalent list of known or suspected contaminated sites, or (ii) is subject to a written claim, Order or other written request or written demand to take Remedial Action, except in each case of (i) and (ii), as would not reasonably be expected to be material to Purchaser, the Purchaser Subsidiaries and, after the Closing, the Company Entities, taken as a whole.

6.15          Taxes.

(a)            All material Tax Returns of Purchaser and each Purchaser Subsidiary have been duly and timely filed as required by applicable Law (within any applicable extension periods) and all such Tax Returns are true, complete and correct in all material respects. All material Taxes shown to be due and payable on or before the Closing Date (whether or not shown or required to be shown on any Tax Return) have been timely paid in full.

(b)           No Proceeding related to any Liability in respect of Taxes or any Tax Return of Purchaser or any Purchaser Subsidiary by any Governmental Authority is presently pending, nor has Purchaser or any Purchaser Subsidiary received any notice of any request for such an audit or other examination.

(c)           Purchaser and the Purchaser Subsidiaries have each complied in all material respects with all applicable Laws, rules, and regulations relating to the payment and withholding of Taxes and has duly and timely withheld and has paid over to the appropriate Governmental Authority all amounts required to be so withheld and paid over in connection with amounts paid or owed to any employee, independent contractor, creditor, shareholder, or other third party for all periods under all applicable Law, and has complied with all material information reporting and backup withholding provisions of applicable Law.

(d)           There are no material Liens with respect to Taxes on the assets or business of Purchaser or any Purchaser Subsidiary (other than Permitted Liens) on any of the properties or assets of Purchaser, any Purchaser Subsidiary or the Purchaser Shares.

(e)           Neither Purchaser nor any Purchaser Subsidiary has waived any statute of limitations applicable to any claim for Taxes, and neither Purchaser nor any Purchaser Subsidiary has requested or been granted an extension of the time for filing any Tax Return (other than automatic extensions for income Tax Returns).

(f)            Purchaser is not a “foreign person” as defined in Section 1445(f)(3) of the Code.

(g)           Purchaser is not and has not been a United States real property holding corporation within the meaning of Code §897(c)(2) at any time during the applicable period specified in Code §897(c)(1)(A)(ii).

(h)           Except as set forth on Schedule 6.15(h), within the past three (3) years, neither Purchaser nor any Purchaser Subsidiary has ever distributed stock of another Person, or had its stock distributed by another Person, in a transaction that was purported or intended to be governed in whole or in part by Sections 355 or 361 of the Code.

(i)            Neither Purchaser nor any Purchaser Subsidiary has entered into a “listed transaction” within the meaning of Treasury Regulation §1.6011-4(b)(2).

(j)            No written claim has been made within the last three (3) years by a Governmental Authority in a jurisdiction where Tax Returns with respect to either Purchaser or any Purchaser Subsidiary are not filed asserting that Purchaser or any Purchaser Subsidiary is or may be subject to Tax in that jurisdiction.

(k)           Neither Purchaser nor any Purchaser Subsidiary has requested or received a ruling from any Governmental Authority or signed a closing or other agreement with any Governmental Authority which would result in taxable income for a taxable period after the Closing Date.

6.16          Proceedings and Orders. Except as set forth on Schedule 6.16, there are and since the Lookback Date have been, no material Proceedings pending or, to Purchaser’s Knowledge, threatened in writing against Purchaser or any of its Subsidiaries or any of their respective directors or officers in their capacities as such. The operation of Purchaser’s business is not and since the Lookback Date has not been, subject to any material Order. Neither Purchaser nor any of its Subsidiaries is a party to or bound by any Contract to settle or compromise any Proceeding under which Purchaser has any continuing Liability.

6.17          Compliance with Laws. Except as set forth on Schedule 6.17, Purchaser and its Subsidiaries are, and have at all times since the Lookback Date been, in compliance in all material respects with all Laws applicable to their properties, assets, products and Purchaser’s business, except where the failure to so comply would not, individually or in the aggregate, reasonably be expected to be material to Purchaser, the Purchaser Subsidiaries and, after the Closing, the Company Entities, taken as a whole.

6.18          Required Purchaser Stockholder Approval. The only vote or Consent of the Purchaser Stockholders required to adopt this Agreement and approve the Merger, Purchaser’s Related Agreements, the other transactions contemplated hereby and thereby is the Required Purchaser Stockholder Approval. No other vote of the Purchaser Stockholders is required by Law, the Organizational Documents of Purchaser or any Contract to which Purchaser is a party.

6.19          Takeover Laws. The Purchaser Board has taken all action necessary in order to exempt this Agreement, Purchaser’s Related Agreements, the Transactions and the transactions contemplated by Purchaser’s Related Agreements from, and this Agreement, Purchaser’s Related Agreements, the Transactions and the transactions contemplated by Purchaser’s Related Agreements are exempt from, the restrictions on business combinations set forth in Section 203 of the DGCL and any other similar applicable Law. No other Takeover Law is applicable to this Agreement, Purchaser’s Related Agreements, the Transactions and the transactions contemplated by Purchaser’s Related Agreements.

6.20          Anti-Corruption Matters.

(a)            Neither Purchaser nor, to Purchaser’s Knowledge, any of its Subsidiaries nor any director, officer, agent, representative, employee or other Person acting on behalf of Purchaser or any of its Subsidiaries has (i) violated any provision of the Anti-Corruption Laws, (ii) made any bribe, rebate, payoff, influence payment, kickback or other unlawful payment to any Foreign Official to obtain or retain business, (iii) used or attempted to use any corporate funds for any unlawful contribution, gift, entertainment, travel expense or other unlawful expenses relating to political activity or a charitable donation or (iv) made any offer, promise to pay or direct or indirect unlawful payment to or for the use or benefit of any Foreign Official, except, in each case, as would not reasonably be expected to be material to Purchaser or any of its Subsidiaries, as applicable. Purchaser has instituted and maintains and enforces policies and procedures designed to promote compliance with the Anti-Corruption Laws.

(b)            No Representative of Purchaser is a Foreign Official.

(c)            There are no, and there have not been any, material Proceedings pending or, to Purchaser’s Knowledge, threatened, against Purchaser or any director, office, agent, representative, employee or other Person acting on behalf of Purchaser involving a violation or alleged violation of any Anti-Corruption Law.

6.21          Brokers. No broker, finder or investment bank is entitled to any brokerage, finder’s or similar fee or commission in connection with the Transactions and the transactions contemplated by Purchaser’s Related Agreements based upon arrangements made by or on behalf of Purchaser, other than Evercore Group L.L.C.

6.22          Opinion of Financial Advisor. The Purchaser Board has received a written opinion or an oral opinion to be subsequently confirmed in writing from Evercore Group L.L.C. (the “Purchaser Financial Advisor”), dated as of February 11, 2022 that, as of the date of such opinion and subject to the assumptions, limitations, qualifications and conditions set forth therein, the Base Purchaser Share Amount is fair, from a financial point of view, to Purchaser. Promptly after execution of this Agreement, Purchaser will furnish to the Company, solely for informational purposes, a true and complete copy of the written opinion of the Purchaser Financial Advisor, it being agreed that such opinion is for the benefit of the Purchaser Board and may not be relied upon by the Company or the Company Stockholders.

6.23          SEC Reports.

(a)            Purchaser has timely filed or furnished all reports, schedules, forms, statements, and other documents required to be filed or furnished by it with or to the SEC since January 1, 2020 (together with all exhibits, financial statements, and schedules thereto, all information incorporated therein by reference and all documents filed with the SEC during such period by Purchaser on a voluntary basis, the “Purchaser SEC Documents”). As of its filing (or furnishing) date or, if amended prior to the date of this Agreement, as of the date of the last such amendment, each Purchaser SEC Document complied in all material respects with the applicable requirements of the Exchange Act and the Securities Act, as the case may be, and the applicable rulings and regulations promulgated thereunder.

(b)            The Purchaser Financial Statements (i) are Compliant and (ii) comply as to form in all material respects with the applicable accounting requirements and the published rules and regulations of the SEC with respect thereto and have been prepared in accordance with GAAP applied on a consistent basis throughout the periods presented, except as otherwise noted therein. The Purchaser Financial Statements (including the related notes) present fairly in all material respects the consolidated financial position of Purchaser and its Subsidiaries as at the respective dates thereof and their consolidated results of operations and cash flows for the periods then ended (subject to normal and recurring year-end audit adjustments in the case of any unaudited interim financial statements).

(c)            As of the date hereof, there are no material outstanding or unresolved written comments from the SEC with respect to the Purchaser SEC Documents. As of the date hereof, none of the Purchaser SEC Documents are, to Purchaser’s Knowledge, the subject of ongoing SEC review.

(d)            The audit committee of the Purchaser Board has established “whistleblower” procedures that meet the requirements of Exchange Act Rule 10A-3, and has delivered or made available to the Company true, complete, and correct copies of such procedures in effect as of the date of this Agreement. Since December 31, 2020 neither Purchaser nor any of its Subsidiaries has received any “complaints” (within the meaning of Exchange Act Rule 10A-3) in respect of any accounting, internal accounting controls or auditing matters. To Purchaser’s Knowledge, since December 31, 2020 no complaint seeking relief under Section 806 of the Sarbanes-Oxley Act has been filed with the United States Secretary of Labor and no employee of Purchaser or any of its Subsidiaries has threatened to file any such complaint.

(e)            To the extent required by the Exchange Act, Purchaser and its Subsidiaries have established and maintain disclosure controls and procedures (as defined in Rule 13a-15 under the Exchange Act) designed to ensure that material information relating to Purchaser, including its Subsidiaries, is made known to Purchaser’s principal executive officer and its principal financial officer by others within those entities, including during the periods in which the periodic reports required under the Exchange Act are being prepared. Each of the principal executive officer of Purchaser and the principal financial officer of Purchaser (or each former principal executive officer of Purchaser and each former principal financial officer of Purchaser, as applicable) has made all certifications required by Rule 13a-14 or 15d-14 under the Exchange Act and Sections 302 and 906 of the Sarbanes-Oxley Act with respect to the Purchaser SEC Documents, and the statements contained in such certifications are true and accurate in all material respects as of the date on which they were made. For purposes of this Section 6.23, “principal executive officer” and “principal financial officer” shall have the meanings given to such terms in the Sarbanes-Oxley Act. Since December 31, 2020 Purchaser has complied in all material respects with the provisions of the Sarbanes-Oxley Act.

(f)            Except as has not had and would not reasonably be expected to have, individually or in the aggregate, a Purchaser Material Adverse Effect, Purchaser maintains a system of “internal control over financial reporting” (as defined in Rule 13a-15(f) of the Exchange Act) to provide reasonable assurance regarding the reliability of Purchaser’s financial reporting and the preparation of Purchaser’s financing statements for external purposes in accordance with GAAP. Purchaser’s principal executive officer and principal financial officer have disclosed, based on their most recent evaluation of such internal controls prior to the date of this Agreement, to Purchaser’s auditors and the audit committee of the Purchaser Board (i) “all significant deficiencies and material weaknesses” in the design or operation of internal controls which are reasonably likely to adversely affect Purchaser’s ability to record, process, summarize and report financial information, and (ii) any fraud, whether or not material, that involves management or other employees who have a significant role in internal controls. Purchaser has made available to the Company prior to the date of this Agreement a true and complete (in all material respects) summary of any disclosure of the type described in the preceding sentence made by management to Purchaser’s auditors and audit committee during the period beginning January 31, 2021 and ending as of the date hereof.

(g)            Neither Purchaser nor any of its Subsidiaries is a party to, or has any commitment to become a party to, any off-balance sheet joint venture, off-balance sheet partnership or other “off-balance sheet arrangement” (as defined in Item 303(a) of Regulation S-K under the Exchange Act).

6.24          Reorganization. As of the Closing Date:

(a)            None of Purchaser nor any of its Subsidiaries has taken any action or has any knowledge of any fact or circumstance that could reasonably be expected to prevent the Merger from qualifying as a “reorganization” within the meaning of Section 368(a) of the Code.

(b)            Merger Sub is treated as a “C” corporation for applicable United States federal Income Tax purposes where no election has been made to treat such entity as a partnership or disregarded entity for such purpose; and Merger Sub is a wholly-owned Subsidiary of Purchaser, formed solely for the purpose of engaging in the Merger, and will carry on no business prior to the Merger.

(c)            Neither Purchaser nor Merger Sub is an “investment company” as such term is defined in Sections 368(a)(2)(F)(iii) and (iv) of the Code.

(d)            Purchaser and its Affiliates have no plan or intention to (i) liquidate the Surviving Corporation (including any transaction that would be treated as a liquidation for U.S. federal Income Tax purposes) or merge the Surviving Corporation with or into any other corporation or entity, (ii) sell or otherwise dispose of the stock of the Surviving Corporation which Purchaser will acquire in the Merger, or (iii) cause the Surviving Corporation to sell or otherwise dispose of any of its assets and distribute the proceeds to its shareholders, in each case, except in the ordinary course of business or if such liquidation, merger, or disposition is described in Section 368(a)(2)(C) of the Code or Treasury Regulation Section 1.368-1(d)(4) or Section 1.368-2(k).

(e)            Prior to the Closing Date, Purchaser has not acquired any shares of the Company (and no related Person to Purchaser within the meaning of Treasury Regulation 1.368-1(e)(3) has acquired any stock of the Company) either directly or through any transaction, agreement, or arrangement with another Person.

(f)             Purchaser has no plan or intention to (i) reacquire any Purchaser stock that is issued in connection with the Closing or the Merger, or (ii) make any distributions after and in connection with the Merger to holders of Purchaser stock, in each case other than dividends, if any, that may be paid in the ordinary course of business consistent with past practice or general market stock repurchase programs.

(g)            Following the Closing and the completion of the Merger, Purchaser intends to cause the Surviving Corporation to continue the Company’s historic business or to use a significant portion of the Company’s historic business assets in a business as required by Section 368 of the Code and the Treasury Regulations promulgated thereunder.

For the avoidance of doubt, nothing within this Section 6.24 shall prevent, or be violated by, any recourse to the Indemnity Share Amount or reduction to the Indemnity Shares Amount pursuant to this Agreement (including Article XI herein).

6.25          No Other Representations or Warranties. Except for the representations and warranties made by Purchaser and Merger Sub in this Article VI or in any Related Agreement or the Disclosure Schedules, neither Purchaser, Merger Sub nor any other Person makes, and the Company or the Company Stockholders have not relied and are not relying on, any express or implied representation or warranty with respect to any of Purchaser, Merger Sub, their respective Subsidiaries or their respective businesses, operations, assets, Liabilities, conditions (financial or otherwise) or prospects, and Purchaser and Merger Sub hereby disclaims any such other representations or warranties. In particular, without limiting the foregoing disclaimer, except for the representations and warranties made by Purchaser in this Article VI or in any Related Agreement or the Disclosure Schedules, neither Purchaser, Merger Sub nor any other Person makes or has made any representation or warranty to the Company or any of its Affiliates or Representatives with respect to (a) any financial projection, forecast, estimate, budget or prospective information relating to Purchaser, any of its Subsidiaries or their respective businesses, or (b) any oral or written information presented to the Company or any of its Affiliates or Representatives in the course of their due diligence investigation of Purchaser, the negotiation of this Agreement or in the course of the Transactions, except in each case, for the representations and warranties made by Purchaser and Merger Sub in this Article VI.

Article VII

COVENANTS RELATING TO CONDUCT OF BUSINESS

7.1            Conduct of Business by and Forbearances of the Company. From the date of this Agreement until the earlier of the Closing Date or the termination of this Agreement, other than (i) as set forth on Schedule 7.1, (ii) as expressly permitted or required by this Agreement (including in connection with the Spinoff in accordance with the Spinoff Documents), (iii) as required by applicable Law or (iv) with the prior written Consent of Purchaser, the Company shall and shall cause the other Company Entities to: (x) subject to Section 7.3, conduct the Business in the ordinary course of business consistent with past practice in all material respects, (y) take no action which would reasonably be expected to materially and adversely affect the ability of the Company to consummate the Transactions and (z) not:

(a)            (i) except in connection with Permitted M/N Option Grants, issue, sell, transfer, pledge, grant, dispose of, encumber or deliver any Equity Interests of any class or any securities convertible into or exercisable or exchangeable for voting or Equity Interests of any class, or (ii) adjust, split, combine, recapitalize or reclassify any of its equity securities; provided, that nothing contained herein shall prevent the Company from issuing replacement Certificates to Company Stockholders prior to the Closing upon receipt of a customary lost stock affidavit and indemnity;

(b)            declare, set aside or pay any dividend or other distribution (other than cash) with respect to any Equity Interests, or repurchase, redeem or otherwise reacquire any Equity Interests (other than repurchases of Equity Interests pursuant to the Management Stock Plan);

(c)            (i) lend money to any Person (other than pursuant to routine travel advances made to an employee of the Company Entities in the ordinary course of business and consistent with past practice), (ii) incur, assume or guarantee any Indebtedness or (iii) forgive any loans to any Person;

(d)            create or assume any Lien on any of their property or assets, except for Permitted Liens;

(e)            threaten, commence or settle any Proceeding (whether or no commenced prior to the date of this Agreement) other than Proceedings that are not in excess of $500,000 and in the aggregate are not in excess of $2,000,000;

(f)            other than the Company Certificate of Amendment, adopt any material amendments to their respective Organizational Documents;

(g)            other than in the ordinary course of business consistent with past practice, accelerate the payment, funding, right to payment or collection of accounts receivable, delay the payment of accounts payable, defer expenses or reduce inventory levels;

(h)            make or become legally committed to any capital expenditure which exceeds $20,000,000 in the aggregate;

(i)             enter into any agreement or participate in any transaction, other than the Merger and the Spinoff and the Related Agreements (as applicable), with a Related Party or EIS;

(j)             adopt or implement, or resolve to adopt or implement, any plan of liquidation or dissolution with respect to any of the Company Entities;

(k)            adopt, enter into, materially amend or terminate any collective bargaining agreement, except as required by applicable Law;

(l)             enter into any new Contract that would have been a Material Contract under this Agreement if such Contract were in effect on the date hereof or, except for amendments, terminations or non-renewals in the ordinary course of business and consistent with past practice, or materially amend, terminate or fail to use its commercially reasonable efforts to renew any Material Contract;

(m)            merge or consolidate with any Person, or acquire Equity Interests in, or any material amount of assets of, any other Person (excluding acquisitions of inventory or equipment in the ordinary course of business);

(n)            sell, assign, license, transfer, pledge or otherwise dispose of any material assets (excluding Company Intellectual Property, which is covered by Section 7.1(f)) outside the ordinary course of business, except with respect to assets with a purchase price, in the aggregate, of less One Hundred Thousand Dollars ($100,000);

(o)            sell, assign, license, transfer, pledge or otherwise dispose of any material Company Intellectual Property outside the ordinary course of business;

(p)            except as required by Law or GAAP, change any of the material accounting principles or practices used by the Company Entities;

(q)            except as otherwise required by Law or the terms of a Company Benefit Plan in existence as of the date hereof, (i) increase or accelerate the vesting or payment of any compensation or benefits provided or payable or to become provided or payable to any officer, director, manager, Employee or other individual service provider of the Company Entities; provided, that the Company may increase the base salary of employees in the ordinary course of business consistent with past practice in an aggregate amount of up to 4% of base salaries for all employees or up to 10% of the base salary for any individual employee (which, for the avoidance of doubt, shall be included in the overall 4% cap), (ii) hire, promote, terminate the employment (other than for cause) or otherwise change the employment status or title of any or Employee, (iii) enter into any new or amend any existing employment, bonus, incentive, severance, retention or change in control agreement with any of its officers, directors or Employees other than grants of options pursuant to the Management Stock Plan and other than annual adoption of applicable performance goals and target amounts for 2022 for employees for the Company MIP and the Company MTI, in each case, in the ordinary course of business consistent with past practice, (iv) amend any terms of the Company’s Equity Interests or any awards issued thereunder other than the amendment to the Management Stock Plan with respect to the Permitted M/N Option Grants, (v) adopt, establish, amend or terminate any Company Benefit Plan, or any agreement, plan, policy, trust, fund or other arrangement that would constitute a Company Benefit Plan if it were in existence on the date hereof, (vi) enter into, amend or modify any collective bargaining agreement or labor organization contract with any labor organization; or (vii) voluntarily recognize any new collective bargaining representative or new collective bargaining unit or agree to alter the scope of an existing collective bargaining unit;

(r)            (i) make, change or revoke any Tax election, change any accounting method with respect to Taxes, (ii) file any amended Tax Return or (iii) enter into any closing agreement with respect to Taxes, or settle or compromise any Proceeding with respect to any Tax claim or assessment relating to any of the Company Entities;

(s)            terminate any of the Related Agreements; or

(t)             agree or commit to do, or enter into any Contract to take, or resolve, authorize or approve any action to do, any of the foregoing actions.

Notwithstanding the foregoing, the Company shall be permitted to, and to cause its Subsidiaries to, (x) make dividends and distributions of cash prior to the Closing; and (y) make payments (including prepayments) of any Indebtedness (provided, that in the case of any indebtedness for borrowed money, customary payoff letters are obtained in a form reasonably approved by Purchaser); provided, that during the period between the Determination Time and the Effective Time, in no event shall the Company, and the Company shall cause the other Company Entities not to, dividend or distribute any Cash or Cash Equivalents or incur any Indebtedness. Notwithstanding anything to the contrary, nothing contained in this Agreement shall give Purchaser, directly or indirectly, prior to the Closing, the right to control the operations of the Company Entities. Prior to the Closing, the Company Entities shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over their respective operations.

7.2            Conduct of Business by and Forbearances of Purchaser. From the date of this Agreement until the earlier of the Closing Date or the termination of this Agreement, other than (i) as set forth on Schedule 7.2, (ii) as expressly permitted or required by this Agreement, (iii) as required by applicable Law or (iv) with the prior written Consent of the Company, Purchaser shall, and Purchaser shall cause its Subsidiaries (including Merger Sub) to, (x) subject to Section 7.3, use their commercially reasonable efforts to conduct their businesses in the ordinary course of business consistent with past practice in all material respects, (y) take no action which would reasonably be expected to materially and adversely affect the ability of Purchaser or Merger Sub to consummate the Transactions and (z) not:

(a)            issue, sell, transfer or deliver any equity securities of any class or any securities convertible into or exercisable or exchangeable for voting or equity securities of any class, other than (i) shares of Purchaser Common Stock issued upon exercise of options (or any other incentive equity securities or any securities convertible into or exercisable or exchangeable for voting or equity securities of any class) granted prior to February 3, 2022 and listed on Schedule 6.3(b), or which are granted after such date in the ordinary course of business; and (ii) issuances of shares of Purchaser Common Stock as consideration for any merger, acquisition or other strategic transaction having a value in the aggregate of not more than Four Hundred Million Dollars ($400,000,000).

(b)            amend the Organizational Documents of Purchaser or Merger Sub in a manner that would materially and adversely affect the holders of Company Shares, or adversely affect the holders of Company Shares relative to other holders of Purchaser Common Stock, except, for the avoidance of doubt, in connection with the name change required pursuant to Section 8.12(a).

(c)            take any action or knowingly fail to take any action where such action or failure to act could reasonably be expected to prevent the Merger from qualifying as a “reorganization” within the meaning of Section 368(a) of the Code under this Agreement; or

(d)            agree or commit to do, or enter into any Contract to take, or resolve, authorize or approve any action to do, any of the foregoing actions.

Notwithstanding anything to the contrary, nothing contained in this Agreement shall give the Company, directly or indirectly, prior to the Closing, the right to control or direct the operations of Purchaser or its Subsidiaries.

7.3            Emergency Actions. Notwithstanding anything in this Agreement to the contrary, following, to the extent reasonably practicable, advance notice to and consultation with the other Parties, a Party may take (or not take, as the case may be) any action that would otherwise be inconsistent with the obligation to conduct its business in the ordinary course of business consistent with past practice in all material respects to the extent reasonably necessary and prudent (a) to prevent material harm to the health and safety of any Employees, customers, distributors, vendors, suppliers or Affiliates of the Company or its Subsidiaries, or (b) to ensure compliance with any Public Health Measures enacted or becoming applicable to any member of the Company and its Subsidiaries after the date hereof. Any action taken or not taken in accordance with this Section 7.3 shall be deemed to occur in the ordinary course of business consistent with past practice for purposes of Section 7.1 or Section 7.2 of this Agreement.

Article VIII

ADDITIONAL AGREEMENTS AND COVENANTS

8.1           Consents and Approvals.

(a)           Subject to the terms and conditions of this Agreement, each of Purchaser and the Company will use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper, or advisable under applicable Law to consummate the Transactions, including obtaining as promptly as reasonably practicable any necessary Consents from any Governmental Authority or other third party (“Third-Party Consents”) necessary in connection with the consummation of the Transactions. The Company Stockholders (as a Transaction Cost) shall be responsible for all costs of obtaining the Third-Party Consents referred to above, including all fees, charges, costs and expenses levied by a counterparty in granting its consent, including assignment fees.

(b)           In furtherance and not in limitation of the foregoing, each of Purchaser and the Company shall (i) make or cause to be made the filings, submissions and declarations required of such Party under the HSR Act with respect to the Transactions as promptly as practicable after the date of this Agreement (and in any event, in the case of the HSR Act, within ten (10) Business Days after the date of this Agreement), (ii) certify substantial compliance at the earliest practicable date, and no later than six (6) months after its issuance, with any request under the HSR Act for additional information, documents or other materials received by such Party from the FTC, the Antitrust Division of the U.S. Department of Justice (the “Antitrust Division”), or by any other Governmental Authority in respect of such filings, submissions and declarations or the Merger, and (iii) act in good faith and reasonably cooperate with the other Party in connection with any such filings, submissions, and declarations and in connection with resolving, and use reasonable best efforts to resolve, any investigation or other inquiry of any such agency or other Governmental Authority under any of the HSR Act or any other Antitrust Law with respect to any such filings, submissions, and declarations or any of the Transactions; provided, however, that Purchaser shall not be obligated to agree to any structural or conduct remedy except as set forth in Section 8.1(c)(ii). To the extent not prohibited by applicable Law, the Company, on the one hand, will provide Purchaser, and Purchaser, on the other hand, will provide the Company, with copies of any material correspondence, filing (other than any Notification and Report Form submitted under the HSR Act) or communication between such Party or any of its Representatives, on the one hand, and any Governmental Authority or members of their respective staffs, on the other hand, with respect to this Agreement and the Transactions. Prior to submitting or making any such correspondence, filing or communication to any such Governmental Authority or members of their respective staffs, the Parties shall, to the extent permitted by applicable Law, first provide the other Party with a copy of such correspondence, filing or communication in draft form and give such other Party a reasonable opportunity to discuss its content before it is submitted or filed with the relevant Governmental Authorities, and shall consider and take account of all reasonable comments timely made by the other Party with respect thereto. To the extent permitted by applicable Law, each of the Parties shall ensure that the other Party is given the opportunity to attend any meetings with or other appearances before any Governmental Authority with respect to this Agreement or the Transactions. Notwithstanding this Section 8.1(b), but subject to Section 8.1(c) and its obligations to use reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper, or advisable under applicable Law to consummate the Transactions, Purchaser shall determine the timing and strategy and be solely responsible for the final content of any substantive communications with any applicable Governmental Authority with respect to any investigation under any Antitrust Law.

(c)           For purposes of this Section 8.1, “reasonable best efforts” shall include: (i) vigorously defending, contesting and objecting to any Proceedings challenging this Agreement or the Merger or that would otherwise prevent or materially impede, interfere with, hinder or delay the consummation of the Merger and other transactions contemplated hereby; and (ii) selling, divesting, holding separate or otherwise conveying or agreeing to sell, divest, hold separate or otherwise convey, any business of Purchaser and the Purchaser Subsidiaries that generated net revenue during the twelve month period ending December 31, 2021 of not more than Thirty Million Dollars ($30,000,000); provided, however, that no action contemplated by this Section may be taken if such action would bind Purchaser, the Company or any of their respective Subsidiaries if the Closing does not occur.

(d)           Purchaser shall be responsible for all filing and application fees associated with obtaining all Consents pursuant to this Section 8.1 (other than any Third-Party Consents).

8.2           Preparation and Mailing of Proxy and Filing of the Form S-4.

(a)           As promptly as reasonably practicable following the date hereof, (i) Purchaser and the Company shall cooperate to prepare a proxy statement/prospectus/consent solicitation statement, in such form or forms as may be determined by Purchaser and the Company, relating to the Purchaser Stockholders Meeting (in such context, together with all amendments and supplements thereto, the “Proxy Statement”) and to the solicitation of consents of the Company Stockholders to the Merger (in such context, together with all amendments and supplements thereto, the “Company Solicitation Statement”), and (ii) Purchaser shall prepare and file with the SEC the Form S-4, in which, unless otherwise determined by Purchaser and the Company, the Proxy Statement/Company Solicitation Statement will be included. Unless otherwise determined by Purchaser and the Company, the Proxy Statement/Company Solicitation Statement will be included in and will constitute a part of the Form S-4 as Purchaser’s prospectus. The Form S-4 and the Proxy Statement shall comply as to form in all material respects with the applicable provisions of the Securities Act and the Exchange Act rules and regulations promulgated thereunder. Each of the Company and Purchaser shall furnish all information concerning such Person and its Affiliates to the other, and provide such other assistance, as may be reasonably requested in connection with the preparation, filing, and distribution of the Form S-4, Proxy Statement and Company Solicitation Statement, and the Form S-4, Proxy Statement and Company Solicitation Statement shall include all information reasonably requested by such other party to be included therein. All filings by Purchaser with the SEC in connection with the Transactions, including the Form S-4, and all mailings to the Purchaser Stockholders in connection with such transactions shall be subject to the reasonable prior review and comment by the Company.

(b)           Purchaser, with the assistance of the Company, shall use commercially reasonable efforts to have the Proxy Statement cleared by the SEC as promptly as practicable after its filing and to have the Form S-4 declared effective under the Securities Act as promptly as practicable after its filing and keep the Form S-4 effective for so long as necessary to consummate the transactions contemplated hereby.

(c)           Each of Purchaser and the Company shall, as promptly as practicable after receipt thereof, provide the other Parties copies of any written comments and advise the other Parties of any oral comments, with respect to the Proxy Statement or the Form S-4 received from the SEC. Purchaser shall provide the Company with a reasonable opportunity to review and comment on any amendment or supplement to the Form S-4 and any communications prior to filing such with the SEC and will promptly provide the Company with a copy of all such filings and communications made with the SEC.

(d)           Purchaser shall cause the Proxy Statement to be mailed to the Purchaser Stockholders at the earliest reasonable practicable time after the date upon which the Form S-4 is declared effective under the Securities Act (the “S-4 Effective Date”). Each Party will advise the other Parties, promptly after it receives notice thereof, of the time when the Form S-4 has become effective, the issuance of any stop Order, the suspension of the qualification of Purchaser Shares issuable in connection with the Merger for offering or sale in any jurisdiction, or any request by the SEC for amendment of the Proxy Statement or the Form S-4.

(e)           If at any time prior to the Effective Time, (i) any event or change occurs (including, in the case of Purchaser, a Purchaser Change in Recommendation) with respect to the Parties or any of their respective Affiliates, officers or directors, which, in accordance with applicable Law, should be set forth in an amendment of, or supplement to, the Form S-4, the Proxy Statement or the Company Solicitation Statement, or (ii) any information relating to the Parties, or any of their respective Affiliates, officers or directors, should be discovered by any of the Parties which should be set forth in an amendment or supplement to the Form S-4, the Proxy Statement or the Company Solicitation Statement so that, in any such case, any such document 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, the Parties shall cooperate to prepare and file as promptly as reasonably practicable with the SEC a mutually acceptable (acting reasonably) amendment of, or supplement to, the Form S-4, the Proxy Statement or the Company Solicitation Statement and, to the extent required by applicable Law, Purchaser shall disseminate the information contained in such amendment or supplement to the Purchaser Stockholders.

(f)            Purchaser shall also use commercially reasonable efforts to obtain all necessary state securities Law or “blue sky” Permits and approvals required to carry out the transactions contemplated by this Agreement, and the Company shall furnish all information concerning the Company and the Company Stockholders as may be reasonably requested in connection with any such action.

8.3           Required Company Stockholder Approval.

(a)           Promptly following the S-4 Effective Date, and in any event within five (5) Business Days after the S-4 Effective Date, the Company shall deliver (or cause to be delivered) the Company Solicitation Statement included in the Form S-4 to each Company Stockholder, which statement shall be subject to the reasonable review and comment of Purchaser and shall include (i) a disclosure statement with respect to this Agreement and the Related Agreements and the transactions contemplated hereby and thereby in accordance with the DGCL, (ii) notice to such Company Stockholders of the actions taken by the Written Consent pursuant to Section 228(e) of the DGCL and a copy of the Written Consent and (iii) notice to such Company Stockholders of their appraisal rights pursuant to Section 262 of the DGCL. The Company Solicitation Statement shall include a copy of Section 262 of the DGCL and shall be sufficient in form and substance to start the twenty (20) day period during which a Company Stockholder must demand appraisal of such Company Stockholder’s Company Common Stock as contemplated by Section 262(d)(2) of the DGCL. In connection with the foregoing, Purchaser shall have the right to review and approve, in advance, the Company Solicitation Statement and all documents and other materials submitted to the Company Stockholders in accordance with this Section 8.3(a).

(b)           The Company shall use its reasonable best efforts to obtain, as promptly as practical after the S-4 Effective Date and in any event by 8:00 p.m. central time on the second (2^nd) Business Day following the S-4 Effective Date (the “Company Stockholder Written Consent Deadline”), the Required Company Stockholder Approval pursuant to the Company Stockholder Support Agreements and the Written Consent duly executed by Company Stockholders that hold at least 72.5% of the outstanding Voting Common Stock voting as a single class in accordance with Section 228 of the DGCL and the Company’s Organizational Documents. Promptly following receipt of the Written Consent, the Company shall deliver a correct copy, certified by the secretary or an assistant secretary of the Company, of the Written Consent to Purchaser.

8.4           Merger Sub Stockholder Approval. Promptly following the execution and delivery of this Agreement, Purchaser shall adopt this Agreement in its capacity as sole stockholder of Merger Sub and deliver to the Company evidence of its vote or action by written Consent relating thereto in accordance with the DGCL and the Organizational Documents of Merger Sub.

8.5           Required Purchaser Stockholder Approval.

(a)           As promptly as reasonably practicable following the S-4 Effective Date, Purchaser shall, in consultation with, and with the reasonable assistance and cooperation of, the Company, in accordance with applicable Law and Purchaser’s Organizational Documents, (i) establish a record date (the “Purchaser Record Date”) for and duly call and give notice of a meeting of the stockholders of Purchaser (the “Purchaser Stockholders Meeting”) for the purpose of obtaining the Required Purchaser Stockholder Approval, (ii) cause the Proxy Statement (and all other proxy materials for the Purchaser Stockholders Meeting) to be mailed to the Purchaser Stockholders, and (iii) duly convene and hold the Purchaser Stockholders Meeting. Purchaser shall use commercially reasonable efforts to solicit proxies from the Purchaser Stockholders to obtain the Required Purchaser Stockholder Approval, except, where Purchaser shall have made any Purchaser Change in Recommendation in accordance with Section 8.6(a), following such Purchaser Change in Recommendation. Purchaser shall not, without the prior written Consent of the Company (such Consent not to be unreasonably withheld conditioned or delayed), adjourn or postpone the Purchaser Stockholders Meeting; provided that Purchaser may, notwithstanding the foregoing, without the prior written Consent of the Company, adjourn or postpone the Purchaser Stockholders Meeting (A) if, after consultation with the Company, Purchaser believes in good faith that such adjournment or postponement is reasonably necessary to allow reasonable additional time to (1) solicit additional proxies necessary to obtain the Required Purchaser Stockholder Approval, or (2) distribute any supplement or amendment to the Proxy Statement that the Purchaser Board has determined in good faith after consultation with outside legal counsel is necessary under applicable Law and for such supplement or amendment to be reviewed by Purchaser Stockholders prior to the Purchaser Stockholders Meeting, or (B) for an absence of a quorum. Notwithstanding the foregoing, Purchaser may not, without the prior written Consent of the Company (such Consent not to be unreasonably withheld, conditioned or delayed), adjourn or postpone the Purchaser Stockholders Meeting more than a total of three times pursuant to clause (A)(1) or (B) of the immediately preceding sentence, and no such postponement or adjournment pursuant to clauses (A)(1) or (B) of the immediately preceding sentence shall be, without the prior written Consent of the Company (such Consent not to be unreasonably withheld, conditioned or delayed), for a period exceeding ten (10) Business Days. Without the prior written Consent of the Company (such Consent not to be unreasonably withheld, conditioned or delayed), the issuance of Purchaser Shares in connection with the Merger shall be the only matter (other than matters of procedure and matters required by applicable Law to be voted on by Purchaser Stockholders in connection with this Agreement and the Transactions, including any adjournment proposal) that Purchaser shall propose to be acted on by the Purchaser Stockholders at the Purchaser Stockholders Meeting.

(b)           Subject to Section 8.61.1(b), the Proxy Statement shall include the Purchaser Recommendation, and neither the Purchaser Board nor any committee thereof, shall (x) withdraw or qualify (or amend or modify in a manner adverse to the Company) or (y) publicly propose to withdraw or qualify (or amend or modify in a manner adverse to the Company), the Purchaser Recommendation (any of the actions described in clauses (x) or (y), a “Purchaser Change in Recommendation”); provided that the Purchaser Board may make a Purchaser Change in Recommendation in accordance with Section 8.61.1(a).

(c)           Notwithstanding any Purchaser Change in Recommendation or anything in this Agreement to the contrary (including obligations under Section 8.5(a)), unless this Agreement is terminated in accordance with its terms, the obligations of the Company and Purchaser under this Section 8.5 shall continue in full force and effect. Without limiting the generality of the foregoing, if pursuant to Section 8.5 the Purchaser Board effects a Purchaser Change in Recommendation, unless and until this Agreement is validly terminated, Purchaser shall procure that the Purchaser Board submits the issuance of the Purchaser Shares in connection with the Merger to the stockholders of Purchaser for approval at the Purchaser Stockholders Meeting notwithstanding such Purchaser Change in Recommendation.

8.6           Purchaser Change in Recommendation.

(a)           Except as provided in this Section 8.6(a), neither the Purchaser Board nor any committee thereof shall, directly or indirectly, effect a Purchaser Change in Recommendation. Notwithstanding the foregoing, at any time prior to receipt of the Required Purchaser Stockholder Approval, the Purchaser Board may, in response to a Purchaser Intervening Event, effect a Purchaser Change in Recommendation; provided that the Purchaser Board determines in good faith (after consultation with its outside legal counsel and a financial advisor of nationally recognized reputation) that the failure to do so would be inconsistent with its fiduciary duties under applicable Law; provided, further, that the Purchaser Board may not effect such a Purchaser Change in Recommendation unless:

(i)           the Purchaser Board shall have first provided four (4) Business Days’ prior written notice to the Company that it is prepared to effect a Purchaser Change in Recommendation in response to a Purchaser Intervening Event (it being understood that the delivery of such notice shall not in and of itself constitute a Purchaser Change in Recommendation), which notice shall state in reasonable detail the material facts underlying, and the rationale and basis for, the determination that a Purchaser Intervening Event has occurred (it being understood and agreed that a material change to the facts and circumstances that are the basis for such Purchaser Intervening Event shall require an updated notice and a new three (3) Business Day period pursuant to this clause (i) during which period Purchaser shall be required to comply with this Section 8.6(a) anew with respect to such additional notice);

(ii)          during such four (4) Business Day period, Purchaser and its Representatives, to the extent reasonably requested by the Company, engaged in good faith negotiations with the Company to amend this Agreement in such a manner to obviate the need to effect a Purchaser Change in Recommendation; and

(iii)         after taking into account any revised terms offered in writing by the Company, the Purchaser Board determines in good faith, after consultation with its outside legal counsel, that the failure to make a Purchaser Change in Recommendation would continue to be inconsistent with its fiduciary duties under applicable Law.

(b)           Nothing contained in Section 8.6(a) shall prohibit Purchaser from making any disclosure to the Purchaser Stockholders if the Purchaser Board determines in good faith (after consultation with its outside legal counsel) that the failure to make such disclosure would be inconsistent with its fiduciary duties under applicable Law; provided, however, that neither the Purchaser Board nor any committee thereof shall, except as expressly permitted by Section 8.6(a), effect a Purchaser Change in Recommendation.

8.7           Indemnification and Insurance.

(a)           For a period of six (6) years after the Effective Time, Purchaser and the Surviving Corporation agree that they shall indemnify and hold harmless each present and former director and officer of the Company and each of its Subsidiaries (the “D&O Indemnified Persons”) against any costs or expenses (including reasonable attorneys’ fees), judgments, fines, losses, claims, damages or Liabilities incurred in connection with any action, whether civil, criminal, administrative or investigative, arising out of or pertaining to matters existing or occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent that the Company or its Subsidiaries, as the case may be, would have been permitted under applicable Law and its certificate of incorporation, bylaws or other Organizational Documents in effect on the date of this Agreement to indemnify such D&O Indemnified Person (including the advancing of expenses as incurred to the fullest extent permitted under applicable Law). Without limiting the foregoing, for a six (6) year period following the Closing Date, Purchaser shall, and shall cause the Surviving Corporation and its Subsidiaries to, (i) maintain for a period of not less than six (6) years from the Effective Time, provisions in its Organizational Documents concerning the indemnification and exoneration (including provisions relating to expense advancement) of officers and directors that are no less favorable in any material respect to those D&O Indemnified Persons than the provisions of such certificates of incorporation (if applicable), bylaws and other Organizational Documents as of the date of this Agreement, and (ii) not amend, repeal or otherwise modify such provisions in any material respect that would adversely affect the rights of such D&O Indemnified Persons thereunder, in each case, except as required by Law. Purchaser shall assume, and be liable for, and shall cause the Surviving Corporation and its Subsidiaries to honor, each of the covenants in this Section 8.7.

(b)           Purchaser and the Company shall reasonably cooperate in connection with obtaining the “tail” insurance policy or endorsement referenced in the following sentence. Prior to the Closing, the Company shall obtain, effective as of the Closing, a fully-paid six (6)-year “tail” insurance policy covering each D&O Indemnified Person with a claims reporting or discovery period of at least six (6) years from the Closing Date (the “D&O Tail”) as well as “tail” policies or endorsements for Fiduciary and Employment Practices Liability (the “Tail Policies”), placed with insurance companies having the same or better AM Best Financial rating as the Company Entities’ current directors’ and officers’ liability insurance companies, with terms and conditions providing retentions, limits and other material terms no less favorable in any material respect than the current directors’ and officers’, fiduciary and employment practices liability insurance policies maintained by the Company Entities with respect to matters, acts or omissions existing or occurring at or prior to the Effective Time in a form reasonably acceptable to Purchaser. The costs and expenses of the D&O Tail and the Tail Policies shall be a Transaction Cost.

(c)           In the event that Purchaser, the Surviving Corporation or any of their respective successors or assigns consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger, or transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, Purchaser and the Surviving Corporation shall ensure that proper provisions shall be made so that the successors and assigns of Purchaser or the Surviving Corporation, as the case may be, shall succeed to the obligations set forth in this Section 8.7. The obligations of Purchaser and the Surviving Corporation under this Section 8.7  shall survive the consummation of the Merger and any consolidation or merger set forth in the immediately preceding sentence, and shall not be terminated or modified in such a manner as to materially and adversely affect any D&O Indemnified Person (or any such D&O Indemnified Person’s heirs and representatives) to whom this Section 8.7 applies without the prior written Consent of the affected D&O Indemnified Person (and, after the death of such D&O Indemnified Person, such D&O Indemnified Person’s heirs and representatives).

(d)           Each of the D&O Indemnified Persons referred to in this Section 8.7 (and, after the death of any such D&O Indemnified Person, such D&O Indemnified Person’s heirs and representatives) are intended to be third-party beneficiaries of this Section 8.7, with full rights of enforcement as if a party thereto. The rights of D&O Indemnified Persons under this Section 8.7 (and, after the death of such D&O Indemnified Person, such D&O Indemnified Person’s heirs and representatives) shall be in addition to, and not in substitution for, any other rights that such individuals may have under any and all indemnification agreements of or entered into by the Company or any of its Subsidiaries prior to the date hereof and provided to Purchaser, or applicable Law (whether at law or in equity).

8.8           Access to Information; Confidentiality.

(a)           Prior to the earlier of the Effective Time and the termination of this Agreement in accordance with Section 10.1, upon reasonable notice, the Company shall, and shall cause the Company Subsidiaries and their respective Representatives to, afford Purchaser and Purchaser’s Representatives access during normal business hours to the Company Entities’ properties, books, records, Contracts, and personnel and shall furnish, and shall cause to be furnished, as promptly as reasonably practicable to Purchaser all other information with respect to the Company Entities as Purchaser may reasonably request, including in connection with the preparation of the Estimated Adjustment Statement.

(b)           Notwithstanding anything to the contrary in this Section 8.8, none of the Company, Purchaser pursuant to Section 4.2(b)  or any of their respective Subsidiaries shall be required to provide access to, disclose information to or assist or cooperate with the other party, in each case if such access, disclosure, assistance or cooperation (i) would, as reasonably determined based on the advice of outside legal counsel, jeopardize any attorney-client privilege with respect to such information, or (ii) would contravene any applicable Law or Contract to which the applicable party is a subject or bound; provided that the Company and Purchaser shall, and each shall cause its Subsidiaries to, use reasonable best efforts to make appropriate substitute disclosure arrangements under circumstances in which such restrictions apply (including redacting such information (A) to remove references concerning valuation, (B) as necessary to comply with any Contract in effect on the date hereof or after the date hereof, and (C) as necessary to address reasonable attorney-client, work-product or other privilege or confidentiality concerns) and to provide such information as to the applicable matter as can be conveyed. Notwithstanding the foregoing, from the date of this Agreement until the Closing Date, Purchaser shall not sample or analyze any soil, groundwater, other environmental media or building material at any Company facility.

(c)           Until the Effective Time, all information furnished pursuant to this Section 8.8 shall be subject to the Confidentiality Agreement.

8.9           Exclusivity. From the date of this Agreement until the Effective Time, the Company shall not, directly or indirectly, (a) solicit, initiate or encourage the submission of any proposal or offer from any other Person relating to a potential business combination with or acquisition of the Company or the Business (whether by way of merger, purchase of Equity Interests, purchase of assets or otherwise) or any portion of the Equity Interests or assets of the Company (a “Competing Transaction”), (b) participate in or continue any activities, discussions or negotiations regarding a Competing Transaction or (c) provide information regarding the Company or the Business to, or enter into or agree to enter into any Contract with, any Person, other than Purchaser and its Representatives, in connection with a possible Competing Transaction with such Person. The Company shall, and shall cause its Representatives to, cease any existing activities, discussions, and negotiations with any other Person with respect to any of the foregoing. The Company shall advise Purchaser orally and in writing of the receipt by the Company or any of its Representatives of any oral or written communication, proposal, offer or inquiry from any other Person regarding a Competing Transaction, including the identity of the Person making the same and the material terms and conditions of any proposal or offer.

8.10           Public Announcements. The Company, Purchaser and Merger Sub agree that the press release announcing the execution and delivery of this Agreement shall be a joint release of, and shall not be issued prior to the approval of each of, the Company and Purchaser. Subject to Section 8.6, including any Purchaser Change in Recommendation and except as may be required by applicable Law or any listing agreement with or rule of any national securities exchange or association, Purchaser and the Company shall use commercially reasonable efforts to develop a joint communications plan and each Party shall (x) consult with the other Party prior to issuing any press releases or other public statements or communications with respect to the Transactions, and (y) consult with each other, and give each other the opportunity to review and comment upon, before issuing any press release or, to the extent practicable, otherwise making any public statement or communication with respect to this Agreement or the Transactions. Subject to Section 8.6, Purchaser shall not be required by this Section 8.10 to consult with the Company or any other Person with respect to a public announcement in connection with a Purchaser Change in Recommendation.

8.11           Takeover Laws. If any “fair price,” “business combination” or other similar statute or regulation is or shall become applicable to the Transactions, the Company shall use all reasonable best efforts to grant such approvals and take such actions as are necessary so that the Transactions may be consummated as promptly as practicable on the terms contemplated hereby and shall otherwise act to minimize the effects of any such statute or regulation on the Transactions.

8.12           Certain Additional Purchaser Covenants.

(a)           As promptly as practicable after the Closing (and in any event within two (2) Business Days thereafter), Purchaser shall cause to be filed an amendment with the Secretary of State of the State of Delaware to its certificate of incorporation to change the name of Purchaser to “Zurn Elkay Water Solutions Corporation.”

(b)           Effective upon the Closing, the Purchaser Board shall appoint Ted Hamilton as President of the Surviving Corporation with commensurate authority with respect to the Business reporting directly to the Chief Executive Officer of Purchaser.

(c)           Subject to applicable Law, Purchaser shall procure that the Purchaser Board declare quarterly dividends for each of the four fiscal quarters following the Effective Time such that the Purchaser Shares issued in the Merger Consideration, receive gross proceeds of at least Fourteen Million Dollars ($14,000,000) in the aggregate during such period from dividends paid in respect of such Purchaser Shares (including, for the avoidance of doubt, any dividends paid pursuant to Sections 2.6 and 3.6).

(d)           Prior to the Effective Time, Purchaser shall take such steps as may be reasonably necessary or advisable to cause any acquisitions of Purchaser Common Stock (including derivative securities) pursuant to the Transactions by each individual who may become subject to the reporting requirements of Section 16(a) of the Exchange Act with respect to Purchaser to be exempt under Rule 16b-3 promulgated under the Exchange Act.

8.13           Company Stockholder Loans. Notwithstanding anything to the contrary contained herein, the Company shall use commercially reasonable efforts to procure that all Company Stockholder Loans are paid in full or otherwise satisfied in accordance with the Management Stock Plan prior to the Closing; provided, however, that in the event that any Company Stockholder Loan has not been paid or otherwise satisfied in full as of immediately prior to the Closing, the Company shall have the right to sell such Company Stockholder Loans to EIS for a cash payment by EIS to the Company equal to the outstanding balance (including accrued interest) of such Company Stockholder Loans (without any recourse or liability to any of the Company Entities).

8.14           Tax Matters.

(a)           Cooperation. Following the Closing Date, Purchaser, the Surviving Corporation and the Stockholder Representative shall, as reasonably requested by any Party: (i) assist any other Party in preparing and filing any Tax Returns relating to the Company or any of its Subsidiaries or former Subsidiaries that such other Party is responsible for preparing and filing; (ii) cooperate in preparing for any Tax claim or Proceeding with any Governmental Authority regarding and any judicial or administrative proceeding relating to, liability for Taxes, in the preparation or conduct of litigation or investigation of claims and in connection with the preparation of financial statements or other documents to be filed with any Governmental Authority, in each case with respect to the Company or any of its Subsidiaries or former Subsidiaries; (iii) make available to the other Parties and to any Governmental Authority as reasonably requested all information, records and documents relating to Taxes relating to the Company or any of its Subsidiaries or former Subsidiaries (at the cost and expense of the requesting party); and (iv) furnish the other Parties with copies of all correspondence received from any Governmental Authority in connection with any Tax audit or information request with respect to any taxable periods for which any such other party is responsible. For the avoidance of doubt, the cooperation noted in this Section 8.14(a) shall include signing any Tax Returns, amended Tax Returns, claims or other documents with respect to any Tax controversy or Proceeding, with respect to Taxes, the retention and (upon the other Party’s request) the provision of records and information which are reasonably relevant to any such audit, litigation or other proceeding and making employees available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. Notwithstanding anything in this Agreement to the contrary (including in this Section 8.14(a)), Purchaser shall not be obligated to share with the Stockholder Representative any Tax books and records or Tax Returns (or portion thereof) reflecting the assets or operation of Purchaser or any of its Affiliates (other than the Company Entities), including any Tax Return prepared on a combined, consolidated or unitary basis with respect to a group of Persons of which Purchaser is a member, or Tax audit materials relating thereto.

(b)           Tax Treatment of the Merger. Purchaser, Merger Sub, and the Company shall use its reasonable best efforts to cause the Merger to qualify, and shall not take or knowingly fail to take (and shall cause any Subsidiaries or Affiliates of such Party not to take or knowingly fail to take) any action that could reasonably be expected to prevent or impede the Merger from qualifying, as a “reorganization” within the meaning of Section 368(a) of the Code. Each of Purchaser, Merger Sub, and the Company shall treat, and shall not take any Tax reporting position inconsistent with the treatment of, the Merger as a “reorganization” within the meaning of Section 368(a) of the Code for U.S. federal, state and other relevant Tax purposes, unless otherwise required pursuant to a “determination” within the meaning of Section 1313(a) of the Code.

(c)           Tax Opinion. Each of Purchaser, Merger Sub, and the Company shall reasonably cooperate with one another to obtain a written opinion delivered to the Company from Mayer Brown LLP (“Company Tax Counsel”), in form and substance reasonably satisfactory to the Company, dated as of the Closing Date, to the effect that, on the basis of the facts, representations and assumptions set forth or referred to in such opinion, the Merger will qualify as a “reorganization” within the meaning of Section 368(a) of the Code. In rendering such opinion, Company Tax Counsel shall be entitled to rely upon assumptions, representations, warranties, and covenants, including those contained in the Company Tax Certificate (as defined below) and the Purchaser Tax Certificate (as defined below) and such other information as Company Tax Counsel deems relevant. In connection therewith, Company shall deliver to Company Tax Counsel a duly executed certificate containing such representations, warranties and covenants as shall be reasonably necessary or appropriate to enable such counsel to render the opinion described in this Section 8.14(c) (the “Company Tax Certificate”), and (ii) Purchaser and Merger Sub shall deliver to Company Tax Counsel a duly executed certificate containing such representations as set forth in Section 6.24 and any further representations, warranties, and covenants as shall be reasonably necessary or appropriate, as agreed between the Company and Purchaser, to enable Company Tax Counsel to render the opinion described in this Section 8.14(c) (the “Purchaser Tax Certificate”), in each case, dated as of the Closing Date. The Parties shall provide such other information requested by Company Tax Counsel for purposes of rendering the opinion described in this Section 8.14(c).

(d)           Pre-Closing Tax Period Tax Returns. The Company Entities shall, at the Company’s expense, prepare or cause to be prepared and timely file or cause to be timely filed all Tax Returns for the Company Entities for all taxable periods ending on or before the Closing Date and which are due on or before the Closing Date and the Company Entities shall pay or cause to be paid all Taxes with respect to such periods. The Surviving Corporation shall prepare or cause to be prepared all Income Tax Returns for the Company Entities for all taxable periods ending on or prior to the Closing Date and which are due after the Closing Date (each such Tax Return a “Post-Closing Company-Prepared Income Tax Return”). All Tax Returns referred to in this Section 8.14(c) shall be prepared in accordance with past practices of the Company Entities, unless otherwise required by applicable Law. The Surviving Corporation shall submit each Post-Closing Company-Prepared Income Tax Return to the Stockholder Representative at least thirty (30) days prior to the due date for such Tax Return (including extensions). The Surviving Corporation shall consider in good faith any reasonable comments provided by the Stockholder Representative and, with the cooperation of the Stockholder Representative, Purchaser shall timely file or cause to be filed such Post-Closing Company-Prepared Income Tax Return. Notwithstanding anything herein to the contrary, but subject to the Tax Matters Agreement, the obligations of the Surviving Corporation and Purchaser pursuant to this Section 8.14(d). shall expire at the time the Indemnity Share Amount is reduced to zero (including pursuant to Sections 11.1(b). or 11.2); provided, however, that such obligations shall not expire with respect to any actions or filings that would reasonably be expected to adversely affect the Company Stockholders.

(e)           End of Tax Year. The Parties shall, to the extent permitted or required under applicable Law, treat the Closing Date as the last day of the taxable period of the Company Entities for all Tax purposes, including pursuant to Treasury Regulation Section 1.1502-76, and Purchaser shall cause the Company Entities (where possible) to join Purchaser’s federal Income Tax consolidated group, effective on the day after the Closing Date.

(f)           Allocation of Taxes. For all purposes of this Agreement:

(i)           In the case of any Straddle Period, the amount of Taxes allocable to the portion of the Straddle Period ending on the Closing Date shall be determined as follows: In the case of Taxes imposed on a periodic basis (such as real or personal property Taxes), the amount of such Taxes for the entire period (or, in the case of such Taxes determined on an arrears basis, the amount of such Taxes for the immediately preceding period) multiplied by a fraction, the numerator of which is the number of calendar days in the Straddle Period ending on and including the Closing Date and the denominator of which is the number of calendar days in the entire relevant Straddle Period. In the case of Taxes not described in the immediately preceding sentence, (such as franchise Taxes, Taxes that are based upon or related to income or receipts, based upon occupancy or imposed in connection with any sale or other transfer or assignment of property (real or personal, tangible or intangible)), the amount of any such Taxes shall be determined as if such taxable period ended as of the close of business on the Closing Date.

(ii)          Any Taxes imposed on the Company or any domestic Subsidiary of the Company under Section 951(a) or 951A(a) of the Code, determined as though the taxable period of the Company and all its Subsidiaries ended on the Closing Date, will be deemed to be attributable to a Pre-Closing Tax Period.

(g)           Transfer Taxes. Any transfer, stamp, documentary, sales, use, registration, value added Tax, and other similar Taxes (including all applicable real estate Transfer Taxes) incurred in connection with this Agreement and the Transactions (“Transfer Taxes”) will be borne equally by Purchaser, on the one hand, and the Company Stockholders, on the other hand, as a Transaction Cost. Purchaser agrees to file or cause to be filed in a timely manner all necessary documents (including all Tax Returns) with respect to all such amounts. Purchaser shall provide the Stockholder Representative with evidence satisfactory to the Stockholder Representative that such Transfer Taxes have been paid.

(h)           Tax Claims. Purchaser agrees to give written notice to the Stockholder Representative of the receipt of any written notice by the Surviving Corporation, Purchaser or any of Purchaser's Affiliates which involves the assertion of any claim, or the commencement of any action, in respect of which an indemnity may be sought by Purchaser (a “Tax Claim”); provided, that failure to comply with this provision shall not affect Purchaser’s right to indemnification hereunder except to the extent the Company Stockholders were actually and materially prejudiced as a result thereof. Purchaser shall control the contest or resolution of any Tax Claim relating to a Pre-Closing Tax Period; provided, however, that (i) Purchaser shall keep the Stockholder Representative reasonably informed of the progress of any such Tax Claim and (ii) the Stockholder Representative shall have the right to participate in the defense of any such Tax Claim with separate counsel of their choosing at the Stockholder Representative’s sole cost and expense. Purchaser shall obtain the prior written consent of the Stockholder Representative (which consent shall not be unreasonably withheld, conditioned or delayed) before entering into any settlement of such Tax Claim or ceasing to defend such Tax Claim. If Purchaser fails to, or does not elect to, timely exercise control over the contest or resolution of any such Tax Claim, the Stockholder Representative shall have the right to control the contest or resolution of such Tax Claim; provided, however, that Purchaser shall have the right, but not the obligation, to participate in such defense with separate counsel of its choosing at its sole cost and expense. The Stockholder Representative shall obtain the prior written consent of the Purchaser (which consent shall not be unreasonably withheld, conditioned or delayed) before entering into any settlement of such Tax Claim or ceasing to defend such Tax Claim. Notwithstanding anything herein to the contrary, but subject to the Tax Matters Agreement, the obligations of the Surviving Corporation and Purchaser pursuant to this Section 8.14(h) shall expire at the time the Indemnity Share Amount is reduced to zero (including pursuant to Sections 11.1(b) or 11.2); provided, however, that such obligations shall not expire with respect to any actions or filings that would reasonably be expected to adversely affect the Company Stockholders.

8.15           Employees and Employee Benefits.

(a)           During the period commencing at the Closing Date and ending on December 31, 2022, Purchaser shall provide, or shall cause the Surviving Corporation to provide, the Employees who were employed by the Company immediately prior to the Closing (the “Continuing Employees”) with (i) equivalent base compensation to that in effect on the Closing Date, (ii) target incentive opportunities under the MIP that are, in the aggregate, both consistent with target incentive opportunities under the MIP in effect on the date of this Agreement and at least equal to the amount accrued for such MIP on the Company’s financial statements as of the Closing, (iii) payment of a Christmas bonus in December of 2022 consistent with past practice (with any such payments, in the aggregate, at least equal to the amount accrued for the Christmas bonuses on the Company’s financial statements as of the Closing); and (iv)  health, dental, vision, and Tax-qualified retirement plan benefits pursuant to the Company Benefit Plans as in effect on the date of the Closing.

(b)           To the extent applicable, with respect to Benefit Plans, programs, and arrangements that are established or maintained by Purchaser (“Purchaser Plans”) and in which Continuing Employees become eligible to participate after the Closing, (i) Purchaser shall cause Continuing Employees (and their eligible dependents) to be given credit for their service with the Company (A) for purposes of eligibility to participate, vesting, and benefit accrual to the extent such service was taken into account under a corresponding Company Benefit Plan, and (B) for purposes of satisfying any waiting periods, evidence of insurability requirements or the application of any pre-existing condition limitations, and (ii) Purchaser shall use its commercially reasonable efforts to cause Continuing Employees to be given credit for amounts paid under a corresponding Company Benefit Plan during the same period for purposes of applying deductibles, copayments and out-of-pocket maximums as though such amounts had been paid in accordance with the terms and conditions of the applicable Purchaser Plan. Notwithstanding the foregoing provisions of this Section 8.15(b), service and other amounts shall not be credited to Continuing Employees (or their eligible dependents) to the extent the crediting of such service or other amounts would result in duplication of benefits.

(c)           During the period commencing at the Closing Date and ending on December 31, 2023, if Purchaser or any of its Affiliates terminates the employment of any Continuing Employee without cause, Purchaser shall pay or shall cause an Affiliate to pay to such Continuing Employee cash severance in an amount not less than the amount listed on Schedule 8.15(c). In addition, subject to applicable Law, Purchaser shall provide to each such terminated Continuing Employee with benefit continuation for such period as may be required by the relevant employment standards legislation (where applicable).

(d)           No later than thirty (30) days following the Closing Date, Purchaser shall take, or shall cause the Surviving Corporation or an Affiliate to take, all actions necessary (i) to make all payments required by the Company Retention Bonus Agreements to all Continuing Employees who have not otherwise forfeited the right to receive such payments prior to the Closing Date, and (ii) to make all payments for all amounts accrued under the Company MTI to all Continuing Employees who have not otherwise forfeited the right to receive such payments prior to the Closing Date.

(e)           Purchaser shall take, or shall cause the Surviving Corporation or an Affiliate to take, all actions necessary to make payments under the MIP, to the extent the performance criteria thereunder has been satisfied, to all applicable Continuing Employees who have not otherwise forfeited the right to receive such payments in the ordinary course, consistent with the terms of the MIP in place as of the date of this Agreement.

(f)            For a period of not less than ten (10) years following the Closing Date, Purchaser shall maintain, or shall cause the Surviving Corporation to maintain, the Company Executive Retiree Health Plan for the benefit of all current participants and Continuing Employees who become participants prior to the Closing with (i) such plan providing benefits substantially comparable to the benefits provided pursuant to such plan immediately prior to the Closing or (ii) comparable benefits offered pursuant to a comparable Purchaser Plan.

(g)           Notwithstanding anything in this Section 8.15 to the contrary but without limitation of any obligation of Purchaser contained therein, in the case of any Continuing Employee who is a Union Employee, Purchaser agrees to provide Union Employees with terms and conditions of employment in accordance with the applicable collective bargaining agreement.

(h)           The Company shall comply with any notice and effects bargaining obligations which any Company Entity owes to any labor organization in connection with the Merger. In its undertaking of any such obligations, the Company shall permit Purchaser to participate, and shall not impose any new Liabilities on Purchaser or any other Company Entity, including extending, modifying, or renegotiating any collective bargaining agreements.

(i)            Except as provided on Schedule 8.15(h), this Section 8.15 shall be binding upon and inure solely to the benefit of each of the Parties to this Agreement, and nothing in this Section 8.15, express or implied, shall confer upon any Employee, any beneficiary, or any other Person any rights or remedies of any nature whatsoever under or by reason of this Section 8.15. Nothing contained herein, express or implied: (i) shall be construed to establish, amend, or modify any benefit plan, program, agreement, or arrangement, (ii) shall alter or limit the ability of the Surviving Corporation, Purchaser, or any of their respective Affiliates to amend, modify, or terminate any benefit plan, program, agreement, or arrangement at any time assumed, established, sponsored, or maintained by any of them, or (iii) shall prevent the Surviving Corporation, Purchaser, or any of their respective Affiliates from terminating the employment of any Continuing Employee following the Effective Time. The parties hereto acknowledge and agree that the terms set forth in this Section 8.15 shall not create any right in any Employee or any other Person to any continued employment with the Surviving Corporation, Purchaser, or any of their respective Affiliates or compensation or benefits of any nature or kind whatsoever, or otherwise alters any existing at-will employment relationship between any Employee and the Surviving Corporation.

(j)            Effective no later than the day immediately preceding the Closing Date, the Company shall take all actions necessary to terminate and freeze the Company Nonqualified Plans pursuant to and in compliance with Treasury Regulation Section 1.409A-3(j)(4)(ix)(B) and the terms of such plans effective on the Closing. No later than the day immediately preceding the Closing Date, the Company shall provide Purchaser with evidence that such Company Nonqualified Plans have been terminated. Purchaser agrees as provided above to distribute all such accrued benefits within twelve (12) months following the Closing.

(k)           The Stockholder Representative shall be entitled to enforce the provisions of this Section 8.15.

8.16           Section 280G Matters. At least fourteen (14) days prior to the Closing Date, the Company shall use its reasonable best efforts to (i) obtain an executed written agreement (a “Section 280G Waiver”) from each “disqualified individual,” within the meaning of Section 280G of the Code and the applicable rulings and final regulations promulgated thereunder (“Section 280G of the Code”), waiving the right to receive any payments and/or benefits that may separately or in the aggregate constitute “parachute payments” within the meaning of Section 280G (“Section 280G Payment”) and to accept in substitution therefor the right to receive such payments only if approved by the Company Stockholders in a manner that complies with Section 280G(b)(5)(B) of the Code, (ii) provide the Company Stockholders with adequate disclosure, within the meaning of Section 280G(b)(5)(B)(ii) of the Code, of all material facts concerning the Section 280G Payments, and (iii) obtain approval of such Section 280G Payments, in a manner which satisfies the requirements of Section 280G of the Code. Prior to soliciting executed Section 280G Waivers and Company Stockholder approval as provided in this Section, the Company shall provide drafts of the Company Stockholder approval materials and Section 280G Waivers to Purchaser and Purchaser’s advisors for their review and approval, which approval shall not be unreasonably withheld. Prior to the Closing Date, the Company shall deliver to Purchaser evidence that a vote of the Company Stockholders was solicited in accordance with this Section with respect to each Person who executes a Section 280G Waiver and that either (i) the requisite Company Stockholder approval was obtained with respect to each Person who executes a Section 280G Waiver, or (ii) the requisite Company Stockholder approval was not obtained and, as a consequence, the Section 280G Payments shall not be made to any Person who executes a Section 280G Waiver.

8.17           Consummation of the Spinoff. The Company shall, and shall cause EIS to, (a) enter into each of the Spinoff Documents in the form attached hereto as Exhibit C and (b) consummate the Spinoff as soon as practicable after the date hereof, but not prior to March 5, 2022. For the avoidance of doubt, the Spinoff shall be consummated prior to the Effective Time.

8.18           R&W Insurance Policy. Purchaser has conditionally bound the R&W Insurance Policy, a copy of which has been provided to the Company prior to the date of this Agreement. All costs and expenses related to the R&W Insurance Policy, including the total premium, underwriting costs, brokerage commission, due diligence fees, Taxes related to such policy and other fees and expenses associated with such policy (other than the retention) will be borne by Purchaser. Purchaser agrees that it will not amend, waive or otherwise modify Section VIII.B of the R&W Insurance Policy as it relates to the Insurer’s subrogation rights against the Seller and the Seller Parties (as such terms are defined in the R&W Insurance Policy) in any manner materially adverse to the Company Stockholders, without the prior written consent of the Stockholder Representative.

8.19           Termination of Affiliate Agreements. Except the Spinoff Documents and as set forth on Schedule 8.19, at or prior to the Closing, the Company Entities shall have caused to be terminated the Affiliate Agreements to which any Company Entity is a party, without any further force or effect following the Closing, such that Purchaser, the Surviving Corporation or any of its Subsidiaries following the Closing do not have any further liabilities or obligations in respect thereof following the Closing.

8.20           Stock Exchange Listing. From the date hereof through the Closing, Purchaser shall use reasonable best efforts to ensure Purchaser remains listed as a public company on, and for shares of Purchaser Common Stock to remain listed on, the NYSE.

8.21           Purchaser Public Filings. From the date hereof through the earlier of the Closing and the termination of this Agreement pursuant to Section 10.1, Purchaser will use commercially reasonable efforts to keep current and timely file all reports required to be filed or furnished with the SEC and otherwise comply in all material respects with its reporting obligations under applicable securities Laws.

8.22           JPMorgan Credit Facility. Prior to the Closing Date, Purchaser shall have the right, but not the obligation, with the Company’s reasonable cooperation (which shall not include payment of any consent fee or other amount), to seek any Consents required under the JPMorgan Credit Facility that would be required as a result of the Transactions in order for the JPMorgan Credit Facility to remain in effect after the Closing. Notwithstanding the foregoing, unless Purchaser has obtained such Consents, Purchaser shall pay, at the Closing in accordance with the payoff letter obtained pursuant to Section 3.10(a), on behalf of the Company Entities, all principal, interest and other amounts set forth in such payoff letter.

8.23           Permitted M/N Grant. Purchaser agrees that the Company may grant options, during the period between the date of this Agreement and the Closing, to purchase newly issued Class M/N Company Shares to certain Company Stockholders in the ordinary course of business consistent with past practice pursuant to the Management Stock Plan (the “Permitted M/N Option Grants”); provided, that, prior to such Permitted M/N Option Grants, the Company agrees to amend the Management Stock Plan to provide that the Permitted M/N Option Grants shall not be exercisable until immediately prior to the Closing (unless this Agreement is terminated in accordance with Article 10), at which time they shall be automatically exercised pursuant to a net exercise where the Company shall retain a number of Company Shares that would otherwise be delivered on the exercise of the Permitted M/N Option Grants with a fair market value equal to the exercise price and tax withholding required with respect to the exercise of such option; provided, further, that as a condition for receiving such Permitted M/N Option Grants, the Company will require any recipient who holds an outstanding Company Stockholder Loan pursuant to the Management Stock Plan to agree to repay any such Company Stockholder Loan prior to the Closing (which may be effectuated through a repurchase of Company Shares if agreed by such Company Stockholder and the Company). Prior to making the Permitted M/N Option Grants, the Company shall provide drafts of the amendment to the Management Stock Plan and the grant agreement for the Permitted M/N Option Grants to Purchaser and Purchaser’s advisors for their review and approval, which approval shall not be unreasonably withheld.

8.24           Stockholder Release. In consideration of, among other things, the entry into this Agreement by Purchaser and Merger Sub and the consummation of the Transactions upon the terms and conditions set forth herein, by delivery of a Letter of Transmittal to the Exchange Agent, effective as of the Effective Time, each Company Stockholder shall thereby (a) forever waive all appraisal and dissenter’s rights under applicable Law, (b) withdraw and forever waive all written objections to the Merger and/or demands for appraisal, if any, with respect to the Company Shares owned by such Company Stockholder and (c) on behalf of himself, herself or itself, any Affiliate, whether a past, present or future Affiliate, joint ventures, firms, corporations, limited liability companies, partnerships, trusts, associations, organizations, representatives, investors, stockholders, members, managers, directors, officers, employees, partners, trustees, principals, consultants, contractors, family members, heirs, executors, administrators, predecessors, successors and assigns (each, a “Releasing Party” and, collectively, the “Releasing Parties”) unconditionally and irrevocably release and absolutely forever discharge Purchaser, the Company, Merger Sub, their respective Subsidiaries and their respective officers, directors, securityholders, stockholders, Affiliates, employees, advisors and agents (each, a “Released Party”) from and against all Released Matters. “Released Matters” means any and all claims, demands, damages, debts, liens, sums of money, accounts, judgments, liabilities, obligations, costs, expenses (including attorneys’ and accountants’ fees and expenses), suits, actions and causes of action and other relief of any nature whatsoever, whether now known or unknown, suspected or unsuspected, that the Releasing Parties now have, or at any time previously had, or shall or may have in the future, as a securityholder, creditor, holder of stock options, investor, officer, director, contractor, consultant or employee of the Company or its Subsidiaries, arising by virtue of or in any matter related to any actions or inactions of the Released Parties or the affairs of the Company and its Subsidiaries on or before the closing of the Merger, including, without limitation, any claims relating to the approval and adoption of this Agreement or the transactions contemplated hereby; provided that Released Matters shall not include (i) any right that any Releasing Party may have pursuant to this Agreement or any Related Agreement to which such Releasing Party is a party; (ii) in the case of Releasing Parties who are or were directors, officers or employees of the Company or any of its Subsidiaries, any rights under (A) indemnification and/or exculpation provisions of the Organizational Documents of the Company or such Subsidiary, and (B) any directors’ and officers’ liability insurance policy (or tail coverage thereunder) or life insurance policy maintained by the Company, as applicable, or (iii) in the case of Releasing Parties who are or were directors, officers or employees of the Company or any of its Subsidiaries, any rights under any employment, compensation or other director, officer or employee-related agreements or plans, including any rights to vested benefits or accrued but unpaid compensation. In connection with such release, each Company Stockholder shall further agree that such release shall be effective as a full and final accord and satisfaction and general release of and from all Released Matters and the final resolution by such Company Stockholder and the Released Parties of all Released Matters, including accrued but unpaid dividends, accrued and unpaid interest, unpaid principal and payments in connection with a liquidation or change of control transaction. The invalidity or unenforceability of any part of this Section 8.24 shall not affect the validity or enforceability of the remainder of this Section 8.24, which shall remain in full force and effect. In furtherance of the foregoing, each Company Stockholder shall agree not to, and agree to cause his, her or its respective Affiliates and subsidiaries not to, whether in his, her or its own capacity, as successor, by reason of assignment or otherwise, assert, commence, join in, or assist or encourage any third party in asserting, any claim against any Released Party with respect to the Released Matters. Each Company Stockholder shall further acknowledge that he, she or it is familiar with Section 1542 of the Civil Code of the State of California (“Section 1542”) and shall expressly waive all rights under Section 1542 and any similar applicable Law or common law principle in any applicable jurisdiction prohibiting or restricting unknown claims. Section 1542 reads as follows: “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.” Notwithstanding the provisions of Section 1542 or any similar applicable Law or common law principle in any applicable jurisdiction, each Company Stockholder shall expressly acknowledge that the foregoing release is intended to include in its effect all claims within the scope of the foregoing release which such Company Stockholder does not know or suspect to exist in his, her or its favor against any of the Released Parties (including, without limitation, unknown and contingent claims) and that the foregoing release expressly contemplates the extinguishment of all such claims (except to the extent expressly set forth herein).

Article IX

CONDITIONS PRECEDENT

9.1           Conditions to Each Party’s Obligation to Effect the Merger. The obligations of Purchaser, Merger Sub, and the Company to consummate the Transactions subject to the satisfaction (or waiver by each of Purchaser and the Company) of the following conditions as of the Closing Date:

(a)           HSR Waiting Period. The applicable waiting period under the HSR Act shall have expired or been terminated.

(b)           Stockholder Approvals. The Required Company Stockholder Approval and the Required Purchaser Stockholder Approval shall have been obtained.

(c)           NYSE Listing. The Purchaser Shares that shall be issuable pursuant to this Agreement shall have been authorized for listing on the NYSE, subject only to official notice of issuance.

(d)           Effectiveness of Form S-4. The Form S-4 shall have been declared effective by the SEC under the Securities Act. No stop Order suspending the effectiveness of the Form S-4 shall have been issued by the SEC and remain in effect and no Proceedings for that purpose shall have been initiated or threatened by the SEC.

(e)           No Injunctions or Restraints; Illegality. No Laws shall have been adopted or promulgated after the date of this Agreement, and no temporary restraining Order, preliminary or permanent injunction, or other Order, shall have been issued and remain in effect, by a Governmental Authority of competent jurisdiction having the effect of making the Merger illegal or otherwise prohibiting consummation of the Merger (collectively, “Restraints”).

9.2           Additional Conditions to Obligations of Purchaser and Merger Subs.

(a)           Each of the Company Fundamental Representations (other than the representations and warranties set forth in Sections 5.3(d), 5.3(e) and 5.22) shall be true and correct as of the date hereof and as of the Closing Date as though made on the Closing Date (except to the extent any such Company Fundamental Representation speaks as of the date of this Agreement or any other specific date, in which case such Company Fundamental Representation shall be true and correct as of such date), other than de minimis inaccuracies. The representations and warranties of the Company set forth in Sections 5.3(d), 5.3(e) and 5.22 shall be true and correct in all material respects as of the date hereof and as of the Closing Date as though made on the Closing Date (except to the extent any such representation and warranty speaks as of the date of this Agreement or any other specific date, in which case such representation and warranty shall be true and correct as of such date). Each of the other representations and warranties of the Company set forth in Article V (disregarding all qualifications as to materiality or Company Material Adverse Effect set forth therein) shall be true and correct as of the date hereof and as of the Closing Date as though made on the Closing Date (except to the extent any such representation or warranty speaks as of the date of this Agreement or any other specific date, in which case such representation or warranty shall be true and correct as of such date), except, in any case, where the failure of such representations and warranties to be so true and correct, individually or in the aggregate, has not had, and would not reasonably be expected to result in, a Company Material Adverse Effect.

(b)           The Company shall have performed or complied with in all material respects all covenants and agreements set forth in this Agreement, including Section 7.1 and Articles II, III, IV and VIII, to the extent required to be performed or complied with by the Company on or prior to the Closing or the Effective Time, as applicable.

(c)           Since the date of this Agreement, there shall have been no Company Material Adverse Effect.

(d)           Purchaser shall have received from the Company each delivery required pursuant to Section 3.10.

(e)           The Spinoff shall have been consummated in accordance with the Spinoff Documents prior to the Effective Time.

(f)           Each Related Agreement required to be delivered prior to the Closing shall remain in effect.

9.3           Additional Conditions to Obligations of the Company.

(a)           Each of the Purchaser Fundamental Representations shall be true and correct as of the Closing Date as though made on the Closing Date (except to the extent any such Purchaser Fundamental Representation speaks as of the date of this Agreement or any other specific date, in which case such Purchaser Fundamental Representation shall be true and correct as of such date), other than de minimis inaccuracies. Each of the other representations and warranties of Purchaser and Merger Sub set forth in Article VI (disregarding all qualifications as to materiality set forth therein) shall be true and correct in all material respects as of the date of this Agreement and as of the Closing Date as though made on the Closing Date (except to the extent any such representation or warranty speaks as of the date of this Agreement or any other specific date, in which case such representation or warranty shall be true and correct as of such date), except, in any case, where the failure of such representations and warranties to be so true and correct, individually or in the aggregate, has not had, and would not reasonably be expected to result in, a Purchaser Material Adverse Effect.

(b)           Purchaser and Merger Sub shall have performed or complied with in all material respects all covenants and agreements set forth in this Agreement, including Section 7.2 and Articles II, III, IV and VIII to the extent required to be performed or complied with by Purchaser and Merger Sub under this Agreement on or prior to the Effective Time or the Closing, as applicable.

(c)           The Company shall have received from Purchaser and Merger Sub each delivery required pursuant to Section 3.9.

Article X

TERMINATION AND AMENDMENT

10.1           Termination. This Agreement may be terminated, and the Transactions may be abandoned, by written notice delivered by Purchaser or the Company to the other Party (other than in the case of Section 10.1(a)) at any time prior to the Closing:

(a)           by the mutual written agreement of the Company and Purchaser;

(b)           by either the Company or Purchaser, if:

(i)           the Closing does not occur on or prior to November 14, 2022 (the Outside Date”), provided that, in the event the condition set forth in Section 9.1(a) has not been satisfied, either Party, via email correspondence to the other Party, may extend the Outside Date by a period of three (3) months;

(ii)          the Required Purchaser Stockholder Approval shall not have been obtained at the Purchaser Stockholders Meeting or any adjournments or postponements thereof; or

(iii)          any Restraint (other than a temporary restraining Order, preliminary injunction, or similar non-permanent Order) having any of the effects set forth in Section 9.1(e) shall be in effect and shall have become final and non-appealable;

provided, however, that the right to terminate this Agreement under this Section 10.1(b) shall not be available to a Party whose breach of or failure to perform any of its representations, warranties, covenants or agreements contained in this Agreement has been the primary cause of the failure of the Closing to occur on or prior to the Outside Date, the failure to obtain the Required Purchaser Stockholder Approval, or the imposition of such Restraint.

(c)            by Purchaser, if:

(i)            the Company breaches or fails to perform any of its representations, warranties, covenants or agreements contained in this Agreement, which breach or failure to perform (A) would result in a failure of a condition set forth in Section 9.2(a) or Section 9.2(b), and (B) (1) if capable of being cured, has not been cured by the Company by the earlier of the Outside Date and the date that is thirty (30) days after the Company’s receipt of written notice from Purchaser stating Purchaser’s intention to terminate this Agreement pursuant to this Section 10.1(c), or (2) is incapable of being cured; provided that neither Purchaser nor Merger Sub is then in breach of this Agreement so as to cause any failure of any condition set forth in Section 9.3(a) or Section 9.3(b);

(ii)           as of 5:00 p.m. eastern time on February 13, 2022, the Company has not delivered to Purchaser the Company Stockholder Support Agreements duly executed by Company Stockholders holding at least 72.5% of the outstanding Voting Common Stock voting as a single class; provided, that the right of termination set forth in this Section 10.1(c)(ii) shall lapse upon Purchaser making a public announcement with respect to the Transactions; or

(iii)          the Required Company Stockholder Approval has not been obtained by the Company Stockholder Written Consent Deadline.

(d)            by the Company if Purchaser or Merger Sub breaches or fails to perform any of its representations, warranties, covenants or agreements contained in this Agreement, which breach or failure to perform (A) would result in a failure of a condition set forth in Section 9.3(a) or Section 9.3(b), and (B) (1) if capable of being cured, has not been cured by Purchaser by the earlier of the Outside Date and the date that is thirty (30) days after Purchaser’s receipt of written notice from the Company stating the Company’s intention to terminate this Agreement pursuant to this Section 10.1(d), or (2) is incapable of being cured; provided that the Company is not then in breach of this Agreement so as to cause any failure of any condition set forth in Section 9.2(a) or Section 9.2(b).

10.2          Effect of Termination.

(a)            If this Agreement is terminated pursuant to Section 10.1, subject to Section 10.2(b), this Agreement will immediately become void and have no further force or effect, and no Party will have any Liability to any other Party; provided, however, that (a) the first sentence of this Section 10.2 and Article XII will survive such termination, and (b) subject to Section 10.2(b), no such termination will relieve any Party from Liability for any fraud or willful breach of this Agreement by such Party prior to such termination.

(b)            Notwithstanding Section 10.2(a), if this Agreement is validly terminated (i) pursuant to Section 10.1(b)(i) or Section 10.1(d), in each such case, following a failure of the Purchaser Board to submit the issuance of the Purchaser Shares in connection with the Merger to the stockholders of Purchaser for approval at the Purchaser Stockholders Meeting as required by Section 8.5 (and, for the avoidance of doubt, subject to the last proviso set forth in Section 10.1(b) and 10.1(d)), or (ii) pursuant to Section 10.1(b)(ii), and the Purchaser Board (A) failed to include the Purchaser Recommendation in the Proxy Statement, or (B) effected a Purchaser Change in Recommendation, then Purchaser shall pay to the Company, by wire transfer of immediately available funds to an account designated in writing by the Company, an amount equal to Fifty Million Dollars ($50,000,000) (the “Purchaser Termination Fee”) within five (5) Business Days of the date of such termination. While the Company may simultaneously pursue both a grant of specific performance, injunction or other equitable remedies under Section 13.15 and the payment of the Purchaser Termination Fee under this Section 10.2(b), under no circumstances shall the Company be permitted or entitled to receive both a grant of specific performance of the obligation to consummate the Closing and monetary damages in connection with this Agreement or any termination of this Agreement, including all or any portion of the Purchaser Termination Fee. None of the Company, the Company Stockholders, the Stockholder Representative or any other Person shall be entitled to bring or maintain any Proceeding against Purchaser or any of its Affiliates arising out of or in connection with this Agreement, any of the Transactions or any matters forming the basis for such termination, except (1) Proceedings to enforce Purchaser’s obligation to pay the Purchaser Termination Fee if payable in accordance with this Section 10.2(b), (2) the Company’s right to pursue specific performance as provided in Section 13.15 prior to the termination of this Agreement, and (3) if the Purchaser Termination Fee has not been paid or is then payable, subject to this Section 10.2(b), any Proceeding against Purchaser for fraud or willful breach of this Agreement. Notwithstanding anything to the contrary contained herein, if Purchaser Termination Fee is paid or payable, the sole and exclusive remedy available to the Company for any loss suffered as a result of the failure of the Transactions to be consummated or for a breach or failure to perform hereunder or otherwise relating to or arising out of this Agreement or the Transactions shall be the termination of this Agreement pursuant to Section 10.1(b)(ii) and the payment of the Purchaser Termination Fee pursuant to this Section 10.2(b). It is understood that under no circumstances will the Purchaser Termination Fee be payable on more than one occasion. The Parties hereto acknowledge and hereby agree that the Purchaser Termination Fee if, as and when required pursuant to this Section 10.2 shall not constitute a penalty but will be liquidated damages in a reasonable amount that will compensate the Company in the circumstances in which it is payable for the efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the Merger, which amount would otherwise be impossible to calculate with precision. The Parties acknowledge that the agreements contained in this Section 10.2(b) are an integral part of the Transactions and that, without these agreements, the Parties would not enter into this Agreement. For the avoidance of doubt, and notwithstanding anything to the contrary in this Agreement, the Company’s receipt and acceptance of the Purchaser Termination Fee pursuant to this Section 10.2(b) shall be the sole and exclusive remedy of the Company, the Stockholders’ Representative and the Company Stockholders against Purchaser and its Affiliates for any loss suffered as a result of any breach of any covenant or agreement in this Agreement or the failure of the Transactions to be consummated, in each case, in any circumstance in which the Company is permitted to terminate this Agreement and receive the Purchaser Termination Fee pursuant to this Section 10.2(b), and upon the Company’s receipt of such amount, none of Purchaser, Merger Sub or any of their Affiliates shall have any further liability or obligation relating to or arising out of this Agreement or the Transactions.

Article XI

SURVIVAL; RECOURSE

11.1          Survival and Release of Escrow.

(a)            Subject to the limitations and other provisions of this Agreement, except in the case of fraud, none of the (x) covenants and agreements of the Parties contained in this Agreement that are to be performed in their entirety on or prior to the Closing or (y) representations and warranties contained in this Agreement (other than the Company Fundamental Representations and the Purchaser Fundamental Representations), in each case, shall survive the Closing; provided, however, that (i) the covenants and agreements that explicitly contemplate performance after the Closing shall survive the Closing in accordance with their terms until the earlier of (A) the date on which they have been fully performed or expire in accordance with the terms of this Agreement and (B) sixty (60) days following the expiration of any applicable statute of limitations, and (ii) the indemnification obligations contained in Sections 11.2 and 11.3, together with the Company Fundamental Representations, the Other Company Surviving Representations and the Purchaser Fundamental Representations, shall survive the Closing until second (2^nd) anniversary of the Closing Date (the “Survival Expiration Date”), at which time they shall expire and after which no Party shall have any further Liability in respect thereof, except to the extent that a notice of claim in accordance with the terms of this Agreement was provided by Persons entitled to indemnification prior to the Survival Expiration Date (in which case the indemnification obligations for any such claim shall survive until such claim is fully resolved).

(b)            Not later than the second (2^nd) Business Day after the Survival Expiration Date, Purchaser shall execute and deliver for countersignature by the Stockholder Representative a joint written instruction to the Escrow Agent directing the Escrow Agent to release to the Exchange Agent, for distribution and issuance to the Company Stockholders (other than any holders of Dissenting Shares), the then remaining portion of the Escrow Dividends and the Indemnity Shares Amount, and Purchaser shall instruct the Exchange Agent to distribute and issue such Escrow Dividends and such portion of the Indemnity Shares Amount in book-entry form to the Company Stockholders (other than any holders of Dissenting Shares) in accordance with each such Company Stockholder’s Pro Rata Portion, provided that (i) such Company Stockholder has delivered a duly executed Letter of Transmittal to the Exchange Agent and any other required documents in accordance with Section 3.2 and (ii) (A) first, the Escrow Dividends and (B) second, the Indemnity Shares Amount to be released (if the Escrow Dividends are insufficient) shall be reduced by any then pending claims pursuant to the immediately following sentence. Notwithstanding the foregoing, if one or more indemnification claims pursuant to Section 11.2 is then pending or not fully resolved, an amount of Escrow Dividends and, if such amount is insufficient, an amount of Purchaser Common Stock included in the Indemnity Escrow Amount (valued at the Purchaser Share Price) shall remain in the escrow account equal to the amount of Losses reasonably asserted by Purchaser Indemnified Parties in connection with such pending indemnification claims. Upon final resolution of each such claim, Purchaser and the Stockholder Representative shall execute and deliver to the Escrow Agent joint written instructions providing for the release to Purchaser of the Escrow Dividends and/or Purchaser Common Stock included in the Indemnity Shares Amount in respect of such claim in accordance with Section 11.5(e) (and the remaining portion of the Escrow Dividends and/or shares retained in respect of such claim shall be released to the Exchange Agent for distribution and issuance to the Company Stockholders (other than holders of Dissenting Shares) in book-entry form in accordance with their respective Pro Rata Portions as set forth in the Estimated Adjustment Statement).

11.2          Indemnification by the Company Stockholders.

(a)            From and after the Closing, subject to the provisions of this Article XI, Purchaser, Merger Sub and their respective Affiliates and Representatives, successors and assigns (collectively, the “Purchaser Indemnified Parties”) shall be indemnified and held harmless in accordance with Section 11.2(b), from and against any and all Losses suffered, incurred or sustained by any of them or to which any of them becomes subject, resulting from, arising out of or relating to:

(i)            any breach of or inaccuracy in any Company Fundamental Representation made as of the date hereof or as of the Closing Date (or, in the case of representations and warranties that by their terms speak as of a specific date, as of such date) or in any certificate delivered by the Company prior to the Closing;

(ii)            the exercise or demand of any appraisal or dissenters’ rights under applicable Law by any Company Stockholder, or any Proceeding involving the Surviving Corporation in connection with such appraisal rights, or otherwise in connection with any Dissenting Shares;

(iii)           any breach of fiduciary duty claim with respect to the Company, the Company Board, or the Surviving Corporation or the Company Shares arising out of or relating to the Transactions;

(iv)          any claims relating to the allocation of the Merger Consideration or (and/or the allocation of any adjustment thereto pursuant to Section 4.2(d)) or that any other Person was entitled to Merger Consideration or additional Merger Consideration pursuant to Section 4.2(d);

(v)           the amount of any Pre-Closing Taxes; provided, that to the extent such Pre-Closing Taxes are subject to indemnification by EIS pursuant to the Tax Matters Agreement, Purchaser shall, and shall cause the Purchaser Indemnified Parties to, use commercially reasonable efforts to recover such Losses under the Tax Matters Agreement prior to seeking recovery of such Losses pursuant to this Section 11.2(a)(v) (and, for the avoidance of doubt, the Survival Expiration Date shall be extended with respect to such claim, and the release of Escrow Shares to the extent provided in Section 11.1, shall be extended with respect to such claim, in each case while such claim is being pursued pursuant to Section 11.1); and

(vi)          any Liabilities, other than Income Tax-related Liabilities, of EIS or arising out of or relating to the conduct of the EIS Business whether prior to, at or following the Closing or the Spin-Off, or any payment obligations or other Liabilities of the Company Entities to EIS, in each case, to the extent imposed on any Company Entity other than those obligations which are the express liability of the Company pursuant to the Spinoff Documents (but, in each case, only to the extent that EIS does not perform and discharge when due its indemnification obligations with respect thereto under the Spinoff Documents) (and, for the avoidance of doubt, the Survival Expiration Date shall be extended with respect to such claim, and the release of Escrow Shares to the extent provided in Section 11.1, shall be extended with respect to such claim, in each case while such claim is being pursued pursuant to Section 11.1).

(b)            Purchaser shall, and shall cause the Purchaser Indemnified Parties to, use commercially reasonable efforts to recover any Losses which may be indemnified under Section 11.2(a) from the R&W Insurance Policy. Any amounts payable to the Purchaser Indemnified Parties pursuant to Section 11.2(a)(i) or (v) shall be satisfied (i) first, from the Purchaser Common Stock included in the Indemnity Shares Amount (up to the retention amount of the R&W Insurance Policy), (ii) second, from the R&W Insurance Policy (to the extent of the limits therein), (iii) third, from the Purchaser Common Stock included in the Indemnity Shares Amount and (iv), if applicable, from EIS pursuant to the Spin-Off Documents.

11.3          Indemnification by Purchaser. Purchaser shall indemnify, defend and hold the Company Stockholders and their respective Affiliates and Representatives, successors and assigns (collectively, the “Company Indemnified Parties”) harmless from and against any and all Losses suffered, incurred or sustained by any of them or to which any of them becomes subject, resulting from, arising out of or relating to any breach of or inaccuracy in any Purchaser Fundamental Representations as of the date hereof or as of the Closing Date (or, in the case of representations and warranties that by their terms speak as of a specific date, as of such date), subject to, with respect to the representations and warranties of the Purchaser and Merger Sub contained in Section 6.3 (Capitalization), de minimis exceptions.

11.4          Limitation on Indemnification.

(a)            Notwithstanding any provision of this Agreement to the contrary, except in the case of fraud, with respect to the R&W Insurance Policy and pursuant to the Spin-Off documents, the recourse of the Purchaser Indemnified Parties for indemnification claims made pursuant to Section 11.2 shall be limited exclusively to the Indemnity Shares Amount (and for the avoidance of doubt, no Company Stockholder shall be personally liable for any amount in respect of indemnification pursuant to Section 11.2).

(b)            For the purposes of (i) both determining whether a breach or inaccuracy of any representation or warranty of the Company or Purchaser and Merger Sub, as applicable, set forth in this Agreement occurred and (ii) calculating Losses to which any Indemnified Parties are entitled under this Article XI resulting from a breach of any representation or warranty of the Company or Purchaser and Merger Sub, as applicable, contained in this Agreement, any and all material adverse effect, materiality or Company Material Adverse Effect, Purchaser Material Adverse Effect and similar exceptions and qualifiers set forth in any such representations and warranties shall be disregarded, except with respect to the “Company Material Adverse Effect” in Section 5.6.

(c)            Other than in the case of fraud, the maximum aggregate indemnification obligation of Purchaser pursuant to this Agreement shall not exceed Twenty-Five Million Dollars ($25,000,000).

(d)            No Purchaser Indemnified Party shall have any right to indemnification hereunder with respect to any Loss or alleged Loss to the extent such Loss or alleged Loss is included in the calculation of Company Net Cash, Company Net Indebtedness or Company Net Working Capital.

(e)            In the event of any Loss that may give rise to an indemnification obligation hereunder, the Indemnified Party shall take, and cause its Affiliates to take, commercially reasonable measures to mitigate the consequences of such Loss. Without limiting the generality such Indemnified Party shall use commercially reasonable efforts to obtain such proceeds, benefits and recoveries, including seeking full recovery under all insurance policies issued by unaffiliated third parties covering any Loss, to the same extent as it would if such Loss were not subject to indemnification under this Agreement. Notwithstanding anything to the contrary in this Agreement, the amount of any indemnified Losses shall be calculated after giving effect to any insurance proceeds recoverable from unaffiliated third parties by the Indemnified Party (or any of its Affiliates) with respect to such Loss.

(f)            Notwithstanding anything to the contrary contained herein, in no event shall the amount of the indemnification payments made by Purchaser pursuant to Section 11.3, together with the amount of the Aggregate Adjustment Cash Amount (if any), exceed an amount equal to 19.9% of the product of the Purchaser Share Price multiplied by the Purchaser Shares issued to the Company Stockholders pursuant to this Agreement (taking into account any Purchaser Shares released to the Company Stockholders from the Adjustment Escrow Shares Amount, but excluding the Indemnity Shares Amount).

11.5          Indemnification Procedures. Claims for indemnification pursuant to this Article XI will be asserted and resolved as follows:

(a)            Third-Party Claims. An Indemnified Party may, upon reasonable belief that it may incur a Loss that is indemnifiable hereunder with respect to a claim by a third party (a “Third-Party Claim”), provide written notice (the “Claim Notice”) to Purchaser or the Stockholder Representative on behalf of the Company Stockholders, whichever is the applicable indemnifying party hereunder (the “Indemnifying Party”) of such Third-Party Claim; provided that any failure to deliver a Claim Notice with reasonable promptness shall not relieve the Indemnifying Party of its obligations hereunder except to the extent that the Indemnifying Party’s ability to defend such claim or demand is materially prejudiced by such failure of the Indemnified Party. The Indemnifying Party will notify the Indemnified Party within fifteen (15) days following receipt by the Indemnifying Party of either a Claim Notice or an Indemnity Notice (the “Dispute Period”) whether the Indemnifying Party accepts or disputes the liability of the Indemnifying Party to the Indemnified Party and whether the Indemnifying Party desires, at its sole cost and expense and subject to the limitations set forth herein, to defend the Indemnified Parties against such Third-Party Claim (if such notice disputes the liability of the Indemnifying Party, a “Dispute Notice”).

(b)            Defense by the Indemnifying Party. If the Indemnifying Party notifies the Indemnified Party within the Dispute Period that the Indemnifying Party desires to defend the Indemnified Party with respect to a Third-Party Claim pursuant to this Section 11.5(b) the Indemnifying Party will have the right to defend, at the sole cost and expense of the Indemnifying Party, such Third-Party Claim by all appropriate proceedings, which proceedings will be vigorously and diligently prosecuted or defended by the Indemnifying Party to a final conclusion or will be settled at the discretion of the Indemnifying Party (but only with the prior written consent of the Indemnified Party in its sole discretion in the case of any settlement that provides for any relief other than the payment of monetary damages as to which the Indemnified Party will be indemnified in full pursuant to this Article XI). Subject to the immediately preceding sentence, the Indemnifying Party will have full control of such defense and proceedings, including any compromise or settlement thereof; provided that the Indemnified Party may, at the cost and expense of the Indemnifying Party, at any time prior to the delivery by the Indemnifying Party of the notice referred to in the first sentence of this Section 11.5(b), file any motion, answer or other pleadings or take any other action that the Indemnified Party reasonably believes to be necessary, appropriate or desirable to protect its interests. If requested by the Indemnifying Party, the Indemnified Party will, at the sole cost and expense of the Indemnifying Party, provide reasonable cooperation to the Indemnifying Party in contesting any Third-Party Claim that the Indemnifying Party elects to contest. The Indemnified Party may participate in, but not control, any defense or settlement of any Third-Party Claim controlled by the Indemnifying Party pursuant to this Section 11.5(b) and, except as provided in the preceding sentence, the Indemnified Party will bear its own costs and expenses with respect to such participation. Notwithstanding anything to the contrary set forth in this Section 11.5(b), an Indemnifying Party’s right to assume the defense of any Third-Party Claim with counsel of its choice reasonably satisfactory to the Indemnified Party shall exist so long as: (A) the Indemnifying Party provides the Indemnified Party with evidence reasonably acceptable to the Indemnified Party that the Indemnifying Party will have adequate financial resources to defend against the Third-Party Claim and fulfill the Indemnifying Parties’ indemnification obligations hereunder; (B) the Third-Party Claim involves only money damages and does not seek an injunction or other equitable relief against the Indemnified Party; (C) the Indemnified Party has not been advised by counsel that an actual or potential conflict exists between the Indemnified Party and the Indemnifying Parties in connection with the defense of the Third-Party Claim; and (D) the Third-Party Claim does not relate to or otherwise arise in connection with any criminal or regulatory enforcement Proceeding.

(c)            Defense by the Indemnified Party. If the Indemnifying Party fails to notify the Indemnified Party within the Dispute Period that the Indemnifying Party desires to defend the Third-Party Claim, or if the Indemnifying Party gives such notice but any time thereafter fails to prosecute or defend vigorously and diligently or settle the Third-Party Claim, then the Indemnified Party will have the right to defend, at the sole cost and expense of the Indemnifying Party, the Third-Party Claim by all appropriate proceedings, which proceedings will be prosecuted by the Indemnified Party in good faith or will be settled at the discretion of the Indemnified Party. The Indemnified Party will have full control of such defense and proceedings, including any compromise or settlement thereof, and, if requested by the Indemnified Party, the Indemnifying Party will, at the sole cost and expense of the Indemnifying Party, provide reasonable cooperation to the Indemnified Party and its counsel in contesting any Third-Party Claim which the Indemnified Party is contesting. Notwithstanding the foregoing provisions of this Section 11.5(c), if the Indemnifying Party has notified the Indemnified Party within the Dispute Period that the Indemnifying Party disputes the Indemnifying Party’s liability hereunder to the Indemnified Party with respect to such Third-Party Claim and if such dispute is resolved in favor of the Indemnifying Party in the manner provided in the last sentence of Section 11.5(d), the Indemnifying Party will not be required to bear the costs and expenses of the Indemnified Party’s defense pursuant to this Section 11.5(c) or of the Indemnifying Party’s participation therein at the Indemnified Party’s request, and the Indemnified Party will reimburse the Indemnifying Party in full for all reasonable costs and expenses incurred by the Indemnifying Party in connection with such participation. The Indemnifying Party may participate in, but not control, any defense or settlement controlled by the Indemnified Party pursuant to this Section 11.5(c), and the Indemnifying Party will bear its own costs and expenses with respect to such participation.

(d)            Acceptance by the Indemnifying Party. If the Indemnifying Party notifies the Indemnified Party that it accepts its indemnification liability to the Indemnified Party with respect to the Third-Party Claim, the potential Loss identified in the Claim Notice will, when and in the amount incurred, be conclusively deemed a liability of the Indemnifying Party and the Indemnifying Party shall pay the amount of such Loss, subject to the limitations set forth in this Article XI, to the Indemnified Party on demand. Otherwise, the Indemnifying Party and the Indemnified Party will proceed in good faith to negotiate a resolution of such dispute, and if not resolved through negotiations within 30 days following receipt by an Indemnified Party of a Dispute Notice, such dispute shall be resolved by litigation in a court of competent jurisdiction.

(e)            Non-Third-Party Claims. In the event that the Indemnified Party should have a claim under this Article XI against the Indemnifying Party that does not involve a Third-Party Claim, the Indemnified Party may deliver written notification of a claim for indemnification under this Section 11.5(d) (the “Indemnity Notice”). Any failure or delay by any Indemnified Party to give the Indemnity Notice shall not impair such party’s rights hereunder except to the extent that the Indemnifying Party’s ability to defend is materially prejudiced by such failure or delay. If the Indemnifying Party notifies the Indemnified Party that it does not dispute the claim described in such Indemnity Notice or fails to notify the Indemnified Party within the Dispute Period whether the Indemnifying Party disputes the claim described in such Indemnity Notice, the Loss identified in the Indemnity Notice will be conclusively deemed a liability of the Indemnifying Party under Section 11.2 or Section 11.3, as applicable, and the Indemnifying Party shall pay the amount of such Loss, subject to the limitations set forth in this Article XI, to the Indemnified Party on demand. If the Indemnifying Party has timely disputed the Indemnifying Party’s liability with respect to such claim, the Indemnifying Party and the Indemnified Party will proceed in good faith to negotiate a resolution of such dispute and, if not resolved through negotiations within 30 days following receipt by an Indemnified Party of a Dispute Notice, such dispute shall be resolved by litigation in a court of competent jurisdiction.

(f)            Satisfaction of Claims. Upon (i) mutual agreement by the Indemnifying Party and Indemnified Party, or (ii) final determination of an indemnification claim in accordance with this Section 11.5, in either case as to the disposition of an indemnification claim and the amount of Losses in connection therewith, such indemnification obligation shall be satisfied by the Indemnifying Party within fifteen days thereafter. If the Indemnifying Party is the Stockholder Representative, such indemnification obligation shall be satisfied by the Stockholder Representative (i) by executing and delivering to Purchaser joint written instructions to the Escrow Agent for countersignature by Purchaser, instructing the Escrow Agent to release to Purchaser, out of the Escrow Dividends (if any) and the Indemnity Shares Amount, (A) first, the amount of the Escrow Dividends (up to the amount of such indemnified Loss) and (B) second, if the Escrow Dividends are insufficient, the number of shares (the “Indemnification Shares”) equal to the remaining amount of indemnified Losses in respect of such claim divided by the Purchaser Share Price or (ii) by Purchaser’s delivery of a final determination of an indemnification claim in accordance with this Section 11.5 in accordance with the terms of the Escrow Agreement to the Escrow Agent. If the Indemnifying Party is Purchaser, such indemnification obligation shall be satisfied by payment in immediately available funds in the amount of the finally determined Loss to the Exchange Agent, accompanied by a written instruction from Purchaser to the Exchange Agent directing the Exchange Agent to disburse such funds to the Company Stockholders (other than holders of Dissenting Shares) in accordance with their Pro Rata Portions as set forth in the Estimated Adjustment Statement, provided that such Company Stockholder has delivered a duly executed Letter of Transmittal to the Exchange Agent and any other required documents in accordance with Section 3.2.

(g)            All payments pursuant to Section 11.3 shall, to the extent permitted by applicable Law, be treated for Tax purposes by the parties as an adjustment to the proceeds payable to the Company Stockholders pursuant to Section 2.5(a) hereof except to the extent otherwise required by applicable Law.

11.6         Tax Refunds. If the Company receives any refund, reimbursement, offset, credit, or other similar benefit in respect of Taxes (including any overpayment of Taxes that can be refunded or, alternatively, applied against other Taxes payable), including any interest paid on or with respect to such refund of Taxes attributable to an Income Tax Return for a Pre-Closing Tax Period (a “Tax Refund”) that is not reflected in the Final Net Adjustment Amount, such Tax Refund shall reduce on a dollar-for-dollar basis any amounts owed to Purchaser by the Company Stockholders pursuant to Section 11.2.  Notwithstanding anything to the contrary in this Agreement, if a Company Entity or the Surviving Company receives a Tax Refund attributable to a capital loss or capital loss carryback claimed on a Tax Return for the taxable years ended December 28, 2019 or January 2, 2021 with respect to the stock of Elkay Asia, Inc., a subsidiary of the Company, (the “Elkay Asia Tax Refund”), the party receiving the Elkay Asia Tax Refund shall remit such Tax Refund to the applicable Governmental Authority. The Elkay Asia Tax Refund shall not be taken into account in the Final Net Adjustment Amount. (c) The appropriate Company Entity (or Company Entities) shall file an amended Tax Return (or Tax Returns) prior to the Closing Date, and shall make reasonable best efforts to do so within 30 days after the date hereof, indicating that the Company Entities are no longer claiming the Elkay Asia Tax Refund. A copy of any such amended Tax Return(s) shall be shared with Purchaser within ten days after the filing of such Tax Returns.

11.7. Exclusive Remedy. Except (a) in the case of fraud (in respect of which claims may be made without regard to any limitation set forth herein, notwithstanding anything else herein to the contrary), (b) recovery under the R&W Insurance Policy, (c) claims made under the Spin-Off Documents and (d) specific performance and injunctive relief pursuant to and in accordance with Section 13.5 (as applicable), the remedies provided in this Article XI, subject to the limitations set forth herein, shall, from and after the Closing, be the sole and exclusive remedies of the Purchaser Indemnified Parties and the Company Indemnified Parties for the recovery of Losses resulting from, relating to or arising out of any breach of this Agreement, regardless of the legal theory under which such liability or obligation may be sought to be imposed, whether sounding in contract or tort, or whether at law or in equity, or otherwise. Nothing contained in this Article XI shall be deemed to limit or modify any rights of any Purchaser Indemnified Party under the R&W Insurance Policy or the Spin-Off Documents. The claims period and limits under the R&W Insurance Policy may differ from the terms hereof solely for purposes of administering such R&W Insurance Policy, and shall have no effect on the indemnification obligations of the Company Stockholders hereunder.

Article XII

STOCKHOLDER REPRESENTATIVE

12.1          Authority. By virtue of the approval of the Merger and this Agreement by the Company Stockholders and without any further action of any of the Company Stockholders or the Company, Elkay Interior Systems International, Inc., a Delaware corporation, is hereby appointed as the Stockholder Representative and as the true and lawful attorney-in-fact and exclusive agent under this Agreement. The Stockholder Representative shall have such power and authority as are necessary or appropriate to carry out the functions assigned to it under this Agreement and the Related Agreements, including the full power and authority on behalf of the Company Stockholders to: (i) consummate the Transactions, (ii) execute the Related Agreements and make all decisions required or allowed to be made by the Stockholder Representative pursuant to the Related Agreements, (iii) prepare and cause the Company to deliver the Estimated Adjustment Statement pursuant to Section 4.2(a), negotiate with Purchaser regarding any Proposed Adjustments, and otherwise take all other actions contemplated to be taken by the Stockholder Representative under Section 4.2, (iv) from and after the Closing, execute and deliver any amendment or waiver to this Agreement or any Related Agreement, (v) deliver all notices required to be delivered by the Company Stockholders under this Agreement, (vi) receive all notices required to be delivered by Purchaser to any of the Company Stockholders under this Agreement or any Related Agreement, (vii) receive service of process in connection with any claims under this Agreement, (viii) take all other actions to be taken by or on behalf of the Company Stockholders that the Stockholder Representative may deem necessary or desirable in connection with this Agreement and the Related Agreements and (ix) do each and every act and exercise any and all rights which the Company Stockholders are permitted or required to do or exercise under this Agreement. Notwithstanding the foregoing, the Stockholder Representative shall have no obligation to act on behalf of the Company Stockholders, except as expressly provided herein, , and for purposes of clarity, there are no obligations of the Stockholder Representative in any ancillary agreement, schedule, exhibit or the Company Disclosure Schedules. Such exclusive agency and proxy, and the powers, immunities and rights to indemnification granted to the Stockholder Representative Group hereunder: (i) are coupled with an interest, are therefore irrevocable without the Consent of the Stockholder Representative and shall survive the death, incapacity, bankruptcy, dissolution or liquidation of any Company Stockholder, and (ii) shall survive the delivery of an assignment by any Company Stockholder of the whole or any fraction of his, her or its interest in the Escrow Shares. The Stockholder Representative shall be entitled to: (i) rely upon any signature believed by it to be genuine, and (ii) reasonably assume that a signatory has proper authorization to sign on behalf of the applicable Company Stockholder or other party. All decisions and actions by the Stockholder Representative (to the extent authorized by this Agreement or any Related Agreement) will be binding upon all of the Company Stockholders and their successors as if expressly confirmed and ratified in writing by the Company Stockholders, and no Company Stockholder will have the right to object, dissent, protest or otherwise contest the same. The Stockholder Representative may resign at any time and may be removed or replaced by a majority vote of the Company Stockholders (voting in accordance with their respective Voting Common Stock as if it were still outstanding and governed by the Company’s Organizational Documents as in effect as of immediately prior to the Closing). The immunities and rights to indemnification shall survive the resignation or removal of the Stockholder Representative and the Closing and/or any termination of this Agreement.

12.2          Reliance by Purchaser. Pursuant to such designation, each Company Stockholder shall have further agreed that Purchaser will be entitled to rely on any action taken by the Stockholder Representative on behalf of such Company Stockholder pursuant to this Agreement (each, an “Authorized Action”), and that each Authorized Action shall be binding on such Company Stockholder as fully as if such Company Stockholder had taken such Authorized Action. All notices required to be made or delivered by Purchaser to the Company Stockholders shall be made to the Stockholder Representative for the benefit of the Company Stockholder(s) to whom such notice is intended, and shall discharge in full all notice requirements of Purchaser as applicable, to such Company Stockholder with respect thereto.

12.3          Exculpation. The Stockholder Representative will not, by reason of this Agreement or any Related Agreement, have a fiduciary relationship in respect of any Company Stockholder. Neither the Stockholder Representative nor its members, managers, directors, officers, contractors, agents and employees (collectively, the “Stockholder Representative Group”), will be liable to any Company Stockholder for any action taken or omitted by it or any agent employed by it under this Agreement, any Related Agreement or any other document entered into in connection with this Agreement or any Related Agreement, except that the Stockholder Representative will not be relieved of any Liability imposed by Law for willful misconduct. The Stockholder Representative will not be liable to any Company Stockholder for any apportionment or authorization of distribution of payments made by the Stockholder Representative in good faith, and if any such apportionment or authorization of distribution is subsequently determined to have been made in error, the sole recourse of any Company Stockholder to whom payment was due, but not made, will be to recover from other Company Stockholders any payment in excess of the amount to which such other Company Stockholders are determined to have been entitled. The Stockholder Representative Group will not be required to make any inquiry concerning either the performance or observance of any of the terms, provisions or conditions of this Agreement or any Related Agreement. Neither the Stockholder Representative nor any Representative engaged by it will be liable to any Company Stockholder by virtue of the failure or refusal of the Stockholder Representative for any reason to consummate the Transactions or relating to the performance of its other duties under this Agreement, except that the Stockholder Representative will not be relieved of any Liability imposed by Law for fraud or willful misconduct.

Article XIII

GENERAL PROVISIONS

13.1          Expenses. Except as otherwise provided herein, each Party shall bear its own fees and expenses with respect to this Agreement and the Transactions.

13.2         Amendments. The Parties may amend, modify or supplement this Agreement only by a written agreement signed by Purchaser, the Company, and the Stockholder Representative.

13.3          Notices. Any notice, request, instruction or other communication to be given under this Agreement by a Party shall be in writing and shall be deemed to have been given to the other Party (a) when delivered, if delivered in person or by overnight delivery service (charges prepaid), (b) when sent, if sent via email, provided that no undeliverable message is received by the sender or (c) when received, if sent by registered or certified mail, return receipt requested, in each case to the address, facsimile number or email address of such Party set forth below and marked to the attention of the designated individual, provided that with respect to notices deliverable to the Stockholder Representative, such notices shall be delivered solely via email or facsimile:

If to Purchaser or Merger Sub, to:

Zurn Water Solutions Corporation

511 W. Freshwater Way

Milwaukee, WI 53204

Attention: Jeffrey LaValle, Vice President, General Counsel and Secretary

Email: jeffrey.lavalle@zurn.com

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

Morgan, Lewis & Bockius LLP

101 Park Avenue

New York, NY 10178

Attention:              R. Alec Dawson; Andrew L. Milano and Allison D. Gargano

Email: alec.dawson@morganlewis.com; andrew.milano@morganlewis.com; Allison.gargano@morganlewis.com

Facsimile:              (212) 309-6001

If to the Stockholder Representative or, prior to the Closing, the Company, to:

Elkay Interior Systems International, Inc.
241 N Broadway #600, Milwaukee, WI 53202

Attention: Anthony Lutz
Email: tony.lutz@elkayinteriorsystems.com

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

Mayer Brown LLP
71 S Wacker Drive
Chicago, IL 60606
Attention: Paul Theiss and Jason Wagenmaker
Email: PTheiss@mayerbrown.com and

JWagenmaker@mayerbrown.com

or to such other individual or address or email address as a Party may designate for itself by notice given in accordance with this Section 13.3.

13.4          U.S. Dollars. All cash payments pursuant to this Agreement shall be made by wire transfer in Dollars in immediately available funds to the account or accounts designated in writing by the payee to the payor.

13.5         Waivers. No failure or delay by a Party in enforcing any of such Party’s rights under this Agreement will be deemed to be a waiver of such rights. No single or partial exercise of a Party’s rights will be deemed to preclude any other or further exercise of such Party’s rights under this Agreement. No waiver of any of a Party’s rights under this Agreement will be effective unless it is in writing and signed by such Party (subject to the limitations herein).

13.6         Assignment. This Agreement will be binding on and inure to the benefit of the Parties and their respective successors and permitted assigns. No Party may, by operation of law or otherwise, assign this Agreement or any of such Party’s rights or obligations under this Agreement without the written Consent of the other Parties.

13.7         No Third-Party Beneficiaries. This Agreement is solely for the benefit of the Parties and their respective successors and permitted assigns, and nothing in this Agreement, express or implied, is intended to or will confer on any other Person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.

13.8         Further Assurances. On and after the Closing Date, upon the request of any Party, the other Parties shall execute and deliver such assignments and other instruments and do and perform such other acts and things as may be reasonably necessary or desirable for effecting completely the consummation of the Merger and effectuate the other Transactions.

13.9         Severability. If any provision of this Agreement is declared invalid, illegal or unenforceable, (a) all other provisions of this Agreement will remain in full force and effect, and (b) the Parties shall negotiate in good faith to amend or modify this Agreement to replace such invalid, illegal or unenforceable provision with a valid, legal, and enforceable provision giving effect to the Parties’ intent to the maximum extent permitted by Law.

13.10        Entire Agreement. This Agreement (including all exhibits and schedules hereto), the Company Disclosure Schedules, the Purchaser Disclosure Schedules, the Letters of Transmittal, the Related Agreements and the Confidentiality Agreement contain the entire agreement among the Parties and supersede all prior agreements, arrangements, and understandings, written or oral, among the Parties relating to the subject matter of this Agreement, the Related Agreements and the Confidentiality Agreement.

13.11        Construction. The Parties have each participated in the negotiation and drafting of the terms of this Agreement. The Parties agree that any rule of legal interpretation, to the effect that any ambiguity is to be resolved against the drafting Party, will not apply in interpreting this Agreement. The headings of the sections and paragraphs of this Agreement have been inserted for convenience of reference only and will in no way restrict or otherwise modify any of the terms or provisions hereof. For the purposes of this Agreement, except as otherwise expressly provided in this Agreement or unless the context otherwise requires: (a) the singular number shall include the plural, and vice versa; (b) the masculine gender shall include the feminine and neuter genders; (c) the feminine gender shall include the masculine and neuter genders; (d) the neuter gender shall include masculine and feminine genders; (e) the words “include” and “including,” and variations thereof, shall not be deemed to be terms of limitation, but rather shall be deemed to be followed by the words “without limitation”; (f) the word “extent” in the phrase “to the extent” shall mean the degree to which a subject or other thing extends, and such phrase shall not mean simply “if”; (g) the word “will” shall be deemed to have the same meaning and effect as the word “shall”; (h) the terms “or,” “any” or “either” are not exclusive; (i) except as otherwise indicated, all references in this Agreement to “Sections,” “Exhibits” and “Schedules” are intended to refer to Sections of this Agreement and Exhibits or Schedules to this Agreement; (j) any reference to an applicable “Law” shall be such Law as amended from time to time and (k) references to “made available” or “provided” by either Party shall refer to those materials contained in the “Project Jordan” data room established with Intralinks by the Company, on the one hand, and the “Project Jordan – Reverse Due Diligence” data room established with Intralinks by Purchaser and any publicly filed documents of Purchaser on the other hand, in each case as of February 11, 2022 (and, in the case of the “Project Jordan” data room established with Intralinks by the Company, the additional documents listed on Schedule 13.11).

13.12        Governing Law. This Agreement, and all claims or causes of action that are based on, arise out of or relate to this Agreement, will be governed by and construed in accordance with the Laws of the State of Delaware without regard to its conflicts of law rules and any other Law that would cause the application of the Laws (including the statute of limitations) of any jurisdiction other than the State of Delaware.

13.13       Jurisdiction, Service and Venue. Except with respect to the resolution of Unresolved Adjustments in accordance with Section 4.2, each Party agrees: (a) to submit to the exclusive jurisdiction of the Delaware Court of Chancery in and for New Castle County, and should such Delaware Court of Chancery decline or not exercise jurisdiction, any Delaware State court sitting in New Castle County, unless the federal courts have exclusive jurisdiction, in which case the federal courts located in New Castle County in the State of Delaware (such courts, including appellate courts therefrom, the “Specified Courts”) for any Proceeding arising out of or relating to this Agreement or the Transactions, (b) to commence any Proceeding arising out of or relating to this Agreement or the Transactions only in the Specified Courts, (c) that service of any process, summons, notice or document by U.S. registered mail to the address of such Party set forth in Section 12.3 will be effective service of process for any Proceeding brought against such Party in any of the Specified Courts, (d) to waive any objection to the laying of venue of any Proceeding arising out of or relating to this Agreement or the Transactions in the Specified Courts, and (e) to waive and not to plead or claim that any such Proceeding brought in any of the Specified Courts has been brought in an inconvenient forum.

13.14        WAIVER OF TRIAL BY JURY. EACH PARTY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OF THE TRANSACTIONS. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (B) SUCH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (C) SUCH PARTY MAKES THIS WAIVER VOLUNTARILY, AND (D) SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 13.14.

13.15        Equitable Relief. The Parties agree that irreparable damage, for which monetary relief, even if available, would not be an adequate remedy, would occur in the event that any provision of this Agreement is not performed in accordance with its specific terms or is otherwise breached, including if the Parties fail to take any action required of them hereunder to consummate the Transactions. It is accordingly agreed that subject to Section 10.2(b), prior to the valid termination of this Agreement pursuant to Section 10.1, (a) the Parties will be entitled to an injunction or injunctions, specific performance or other equitable relief to prevent breaches of this Agreement and to enforce specifically the terms and provisions hereof without proof of damages or otherwise, this being in addition to any other remedy to which they are entitled under this Agreement, and (b) the right of specific performance and other equitable relief is an integral part of the Transactions and without that right, neither the Company nor Purchaser would have entered into this Agreement. Subject to Section 10.2(b), prior to the valid termination of this Agreement pursuant to Section 10.1, the Parties agree not to assert that a remedy of specific performance or other equitable relief is unenforceable, invalid, contrary to Law or inequitable for any reason, and not to assert that a remedy of monetary damages would provide an adequate remedy or that the Parties otherwise have an adequate remedy at Law. The Parties acknowledge and agree that any Party pursuing an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement in accordance with this Section 13.15 will not be required to provide any bond or other security in connection with any such Order. Except as otherwise provide in this Agreement, including pursuant to Section 10.2, the remedies available to the Parties pursuant to this Section 13.15 will be in addition to any other remedy to which they were entitled at Law or in equity, and the election to pursue an injunction or specific performance will not restrict, impair or otherwise limit any Party from seeking the payment of any Liabilities, losses, damages, costs or expenses related to any breach of this Agreement (but for the avoidance of doubt, under no circumstances shall the Company be permitted or entitled to receive both a grant of specific performance of the obligation to consummate the Closing and monetary damages in connection with this Agreement including all or any portion of the Purchaser Termination Fee). If, before the Outside Date, any Party hereto brings any action, in each case in accordance with this Section 13.15, to enforce specifically the performance of the terms and provisions hereof by any other party, the Outside Date will automatically be extended (y) for the period during which such action is pending, plus ten (10) Business Days or (z) by such other time period established by the court presiding over such action, as the case may be.

13.16       Privileged Communications. Mayer Brown LLP and the Company’s in-house legal department (collectively, “Counsel”) have acted as counsel for the Company in connection with this Agreement and the Related Agreements and the consummation of the Transactions and the transactions contemplated by the Related Agreements (the “Transaction Engagement”). The Parties acknowledge that (a) all communications in any form or format whatsoever between or among Counsel, on the one hand, and the Company or any of its directors, officers, Employees, agents or advisors, on the other hand, that relate in any way to the Transaction Engagement (collectively, the “Privileged Communications”) will be deemed to be attorney-client privileged communications that belong to the Company, (b) from and after the Closing, the Privileged Communications and the expectation of client confidence relating thereto shall belong solely to the Surviving Corporation and may be controlled by the Surviving Corporation and shall not be claimed by any Company Stockholder or any of its Affiliates, and (c) Counsel shall have no duty whatsoever to reveal or disclose any such Privileged Communications, or any of its files relating to the Transaction Engagement, to any Company Stockholder, any of their respective Affiliates or any of their respective Representatives by reason of any attorney-client relationship between Counsel and any Company Stockholder or otherwise. No Company Stockholder or any of its Affiliates will have access to any such Privileged Communications or to the files of Counsel relating to the Transaction Engagement.

13.17        No Waiver of Privilege; Protection from Disclosure or Use. Nothing in this Agreement will be deemed to be a waiver of any attorney-client privilege, work product protection or other protection from disclosure or use. The Parties have undertaken reasonable efforts to prevent the disclosure of any information that may be confidential, subject to a claim of privilege, or otherwise protected from disclosure or use but, notwithstanding such efforts, the consummation of the Transactions could result in the inadvertent disclosure of such information. The Parties agree that any such inadvertent disclosure of information that may be confidential, subject to a claim of privilege or otherwise protected from disclosure or use will not constitute a waiver of or otherwise prejudice any claim of confidentiality, privilege or protection from disclosure, and further agree to use reasonable best efforts to return any inadvertently disclosed information to the disclosing Party promptly upon becoming aware of its existence. Promptly following the return of any inadvertently disclosed information, the Party returning such information shall destroy any and all copies, summaries, descriptions or notes of such inadvertently disclosed information, including electronic versions thereof, and all portions of larger documents or communications that contain such copies, summaries, descriptions or notes.

13.18        Counterparts. This Agreement may be executed in counterparts (including using any electronic signature covered by the United States ESIGN Act of 2000, Uniform Electronic Transactions Act, the Electronic Signatures and Records Act or other applicable Law, e.g., www.docusign.com), and such counterparts may be delivered in electronic format, including by facsimile, email or other transmission method. Such delivery of counterparts shall be conclusive evidence of the intent to be bound hereby and each such counterpart, including those delivered in electronic format, and copies produced therefrom shall have the same effect as an originally signed counterpart. To the extent applicable, the foregoing constitutes the election of the Parties to invoke any Law authorizing electronic signatures. Minor variations in the form of the signature page, including footers from earlier versions of this Agreement, shall be disregarded in determining a Party’s intent or the effectiveness of such signature. No Party shall raise the use of the delivery of signatures to this Agreement in electronic format as a defense to the formation of a Contract and each such Party forever waives any such defense.

13.19        Disclosure Schedules. The Disclosure Schedules have been arranged for purposes of convenience in separately numbered sections corresponding to the sections of this Agreement; provided, however, that each section of the Disclosure Schedules will be deemed to incorporate by reference all information disclosed in any other section of the Disclosure Schedules to the extent the relevance of such information to such other section of the Disclosure Schedules is reasonably apparent on the face of such disclosure. Capitalized terms used in the Disclosure Schedules and not otherwise defined therein have the meanings given to them in this Agreement. The specification of any Dollar amount or the inclusion of any item in the representations and warranties contained in this Agreement, the Disclosure Schedules or the attached exhibits is not intended to imply that the amounts, or higher or lower amounts, or the items so included, or other items, are or are not required to be disclosed (including whether such amounts or items are required to be disclosed as material or threatened) or are within or outside of the ordinary course of business. The information contained in this Agreement, in the Disclosure Schedules and exhibits hereto is disclosed solely for purposes of this Agreement, and no information contained herein or therein will be deemed to be an admission by any Party hereto to any Person of any matter whatsoever, including any violation of Law or breach of contract.

13.20        Confidential Supervisory Information. Notwithstanding any other provision of this Agreement, no Party shall be required to make any disclosure (whether pursuant to a representation or warranty or otherwise) that would involve the disclosure of confidential supervisory information (including confidential supervisory information as defined in 16 C.F.R. § 261.2(b) and as identified in 16 C.F.R. § 309.5(g)(8)) of a Governmental Authority by any Party to this Agreement to the extent prohibited by applicable Law. To the extent legally permissible, appropriate substitute disclosures or actions shall be made or taken under circumstances in which the limitations of the preceding sentence apply. Notwithstanding the foregoing, no failure to disclose pursuant to this Section 13.20 will operate to waive or exclude a breach of any representation, warranty or covenant of this Agreement.

[Signature Page Follows]

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

[Signature Page to Agreement and Plan of Merger]

Exhibit a

Form of Company Stockholder Support Agreement

Execution Version

FORM OF SUPPORT AGREEMENT

This SUPPORT AGREEMENT, dated as of February [●], 2022 (this “Agreement”), is made by and among [●] (the “Stockholder”), Elkay Manufacturing Company, a Delaware corporation (the “Company” or “Elkay”) and Zurn Water Solutions Corporation, a Delaware corporation (the “Purchaser”).

W I T N E S E T H

WHEREAS, on February 12, 2022, the Purchaser, the Company, Zebra Merger Sub, Inc., a Delaware corporation (“Merger Sub”), and Elkay Interior Systems International, Inc., a Delaware corporation, as representative of the stockholders of the Company for certain purposes described therein, entered into that certain Agreement and Plan of Merger (as amended or restated from time to time, the “Merger Agreement”), pursuant to which, upon the terms and subject to the conditions set forth therein, on the Closing Date, Merger Sub will merge with and into the Company (the “Merger”), the separate existence of Merger Sub shall cease, and the Company shall continue as the surviving corporation and a wholly-owned subsidiary of Purchaser (collectively with the other transactions contemplated by the Merger Agreement, including the Spinoff, the “Transactions”);

WHEREAS, the Stockholder is the Beneficial Owner of, and has the right to vote and consent with respect to, that number of shares of Class [A/M] common stock, par value $0.01 per share, of the Company (the “Class [A/M] Common Stock”) set forth in Section 6.4 of this Agreement (together with any shares of Class [A/M] Common Stock of which the Stockholder acquires Beneficial Ownership after the date hereof, the “Shares”), which are the only voting equity interests of the Company owned by the Stockholder;

WHEREAS, as an inducement to the Purchaser’s willingness to enter into the Merger Agreement and the consummation of the Transactions, the Purchaser has reserved the right to terminate the Merger Agreement if Company Stockholders (as defined in the Merger Agreement) holding a certain percentage of the Voting Stock (as defined in the Merger Agreement) do not enter into Company Stockholder Support Agreements (as defined in the Merger Agreement), including this Agreement; and

WHEREAS, the Purchaser and the Company desire that the Stockholder agree, and the Stockholder agrees, on the terms and subject to the conditions set forth herein, to undertake the obligations set forth herein, including, but not limited to, not to Transfer (as defined below) any of the Shares, and to vote or consent all of the Shares in a manner so as to facilitate the consummation of the Transactions.

NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree as follows:

1.           Definitions and Related Matters.

1.1           Definitions. This Agreement is a “Company Stockholder Support Agreement” as defined in the Merger Agreement. Capitalized terms used but not otherwise defined herein shall have the respective meanings ascribed to such terms in the Merger Agreement. As used in this Agreement, the following terms shall have the meanings indicated below:

“Agreement” shall have the meaning set forth in the Preamble.

“Beneficial Owner”, with respect to an Equity Interest, has the meaning ascribed to such term under Rule 13d-3(a) promulgated under the Exchange Act, and the correlative terms “Beneficially Owned,” “Beneficially Owns” and “Beneficial Ownership” shall be construed accordingly; provided, however, that notwithstanding the foregoing, the term "Beneficial Owner" and each of the foregoing correlative terms shall be deemed to exclude any party or parties having the power pursuant to the express terms of the governing trust instrument of a trust which is a Stockholder to direct the trustee of such trust with respect to the ownership, voting, transfer or other disposition of such trust's Shares (individually or collectively, its “Directing Party”)

“Company” shall have the meaning set forth in the Preamble.

“Control” shall mean the possession, direct or indirect, of the power to direct, or cause the direction of, the management and policies of a Person, whether through the ownership of voting securities, voting equity, limited liability company interests, general partner interests, or other voting interests, by contract or otherwise.

“Directing Party” has the meaning set forth in the definition of Beneficial Owner.

“Expiration Time” shall mean the earliest to occur of (a) the Effective Time and (b) the termination of the Merger Agreement in accordance with its terms.

“Merger” shall have the meaning set forth in the Recitals.

“Merger Agreement” shall have the meaning set forth in the Recitals.

“Merger Sub” shall have the meaning set forth in the Recitals.

“Purchaser” shall have the meaning set forth in the Preamble.

“Shares” shall have the meaning set forth in the Recitals.

“Stockholder” shall have the meaning set forth in the Preamble.

“Subsidiary” of any Person means (a) any corporation, limited liability company, joint venture, trust or other legal entity, an amount of the voting Equity Interests of which sufficient to elect at least fifty percent (50%) of the board of directors, board of managers or other governing body of such corporation, limited liability company, joint venture, trust or other legal entity that is owned or controlled, directly or indirectly, by such Person or one or more other Subsidiaries of such Person or a combination thereof, or (b) any partnership of which such Person or another Subsidiary of such Person is the general partner.

“Transfer” shall mean, with respect to any Share, any direct or indirect sale, offer to sell or otherwise dispose of, transfer, assignment, pledge, option, charge, hypothecation, mortgage, license, gift, creation of a security interest in or lien on, placement in trust (voting or otherwise), encumbrance or other disposition of such Share, in each case whether voluntary, involuntary or by operation of law, as applicable, to any Person, including those by way of any spin-off (such as through a dividend), hedging or derivative transactions, sale, transfer or assignment of any equity interest in, or sale, transfer or assignment of Control of, any Person holding such Share, as applicable, or otherwise.

2.           Agreement to Consent and Approve.

2.1           The Stockholder agrees that, from the date hereof until the Expiration Time, promptly (and in any event by 8:00 p.m. central time on the second (2^nd) Business Day following the S-4 Effective Date (the “Consent Deadline”), the Stockholder shall execute and deliver the Written Consent approving the adoption of the Merger Agreement and the transactions contemplated thereby, which Written Consent is substantially in the form attached hereto as Exhibit A, with respect to all of its Shares entitled to vote on or consent thereto. Any such Written Consent shall be given in accordance with such procedures relating thereto so as to ensure that it is duly counted for purposes of recording the results of such consent.

2.2           The Stockholder shall not enter into any tender, voting or other agreement or arrangement with any Person prior to the Expiration Time, directly or indirectly, to vote, grant a proxy or power of attorney or give instructions with respect to the voting of the Shares in any manner that is inconsistent with this Agreement or otherwise take any other action with respect to the Shares that would in any way restrict, limit or interfere with the performance by the Stockholder of its obligations hereunder or the Transactions, including the approval of the adoption of the Merger Agreement and the Transactions.

2.3           The Stockholder agrees that, from the date hereof until the Expiration Time, it shall vote or cause to be voted (including by written consent) all of its Shares against any action, agreement or transaction involving the Company or any of its Subsidiaries that is intended, or would reasonably be expected, to impede, interfere with, delay, postpone, adversely affect or prevent the consummation of the Transactions. Any attempt by the Stockholder to vote, or express consent or dissent with respect to (or otherwise to utilize the voting power of), its Shares in contravention of the intent of this Agreement, including, but not limited to this Section 2 shall be null and void ab initio. Notwithstanding anything to the contrary contained herein, nothing in this Agreement shall be construed to grant a proxy or power of attorney with respect to voting the Shares other than as described in Section 2 and Section 4.

3.           Agreement Not to Transfer or Encumber. The Stockholder hereby agrees that, from the date hereof until the Expiration Time, it shall not (a) Transfer any Shares, (b) deposit any Shares into a voting trust or enter into a voting agreement or arrangement with respect to any Shares (other than pursuant to this Agreement), or (c) grant a proxy or power of attorney with respect to the Shares that is inconsistent with this Agreement. Any Transfer or attempted Transfer of any Shares in violation of this Section 3 shall be null and void ab initio; provided that any Transfer (x) by will or pursuant to laws of descent and distribution, or (y) that occurs by operation of law pursuant to a qualified domestic relations order or in connection with a divorce settlement shall not be deemed a Transfer (such exempt Transfers, “Permitted Transfers”); provided that any transferee of such Permitted Transfers agrees to be bound by the terms of this Agreement.

4.           POA. Subject to the last sentence of this Section 4, the Stockholder hereby appoints the Purchaser, and any designee of the Purchaser, as its proxy and attorney-in-fact, with full power of substitution and resubstitution, to vote or act by written consent during the term of this Agreement with respect to the Shares in accordance with Section 2.1 and this Section 4. This proxy and power of attorney is given to secure the performance of the duties of the Stockholder under this Agreement. The Stockholder shall take such further action or execute such other instruments as may be necessary to effectuate the intent of this proxy. This proxy and power of attorney granted by the Stockholder shall be irrevocable during the term of this Agreement, shall be deemed to be coupled with an interest sufficient in law to support an irrevocable proxy and shall revoke any and all prior proxies granted by the Stockholder with respect to the Shares. The power of attorney granted by the Stockholder herein is a durable power of attorney and shall survive the dissolution, bankruptcy, death or incapacity of the Stockholder. The proxy and power of attorney granted hereunder shall automatically terminate upon the termination of this Agreement. Notwithstanding anything to the contrary contained herein, the Stockholder’s appointment of Purchaser, and any designee of the Purchaser, as its proxy and attorney-in-fact, with full power of substitution and resubstitution, to vote or act by written consent during the term of this Agreement with respect to the Shares in accordance with Section 2.1 shall only take effect if the Stockholder fails to deliver the Written Consent by the Consent Deadline as described in Section 2.1.

5.           Appraisal and Dissenters’ Rights. The Stockholder hereby (a) irrevocably and unconditionally waives, and agrees not to assert or perfect, any rights of appraisal or rights to dissent from the Transactions that the Stockholder may have by virtue of ownership of Shares and (b) agrees not to commence or participate in any claim, derivative or otherwise, against the Company relating to the negotiation, execution or delivery of this Agreement or the Merger Agreement or the consummation of the Transactions, including any claim (1) challenging the validity of, or seeking to enjoin the operation of, any provision of this Agreement or (2) alleging a breach of any fiduciary duty of the Board of Directors of the Company in connection with this Agreement, the Merger Agreement or the Transactions.

6.           Representations, Warranties and Covenants of the Stockholder. The Stockholder hereby represents and warrants to the Purchaser and the Company as follows:

6.1           Organization of the Stockholder.

(a)           If the Stockholder is not an individual, the Stockholder is duly established and validly existing and under the Laws of its jurisdiction of formation and has all requisite power and authority to own, lease and operate its properties and assets and to conduct its business.

(b)           If the Stockholder is not an individual, the Stockholder is validly licensed or qualified to do business (where such concept is applicable) under the Laws of each jurisdiction in which the properties and assets leased or owned by it or the conduct of its business makes such licensing or qualification necessary or advisable, except where the failure to be licensed or qualified would not reasonably be expected to be material to its business or the Stockholder’s properties or assets.

(c)           If the Stockholder is not an individual, the Stockholder is not in violation of any provisions of its Organizational Documents or the Related Agreements to which it is a party.

6.2           Authority of the Stockholder. (a) If the Stockholder is not an individual, the Stockholder has all requisite power and authority, and (b) if the Stockholder is an individual, the Stockholder has legal competence and capacity, to execute and deliver this Agreement and the Related Agreements to which it is a party and to perform its obligations hereunder and thereunder. The execution and delivery by the Stockholder of this Agreement and Related Agreements to which it is a party and the performance of its obligations hereunder and thereunder have been duly authorized by all necessary action of the Stockholder. This Agreement and Related Agreements to which the Stockholder is a party have been duly executed and delivered by the Stockholder and, assuming the due authorization, execution and delivery of this Agreement and the Related Agreements to which it is a party by the Company and the Purchaser, constitutes the legal, valid and binding obligation of the Stockholder, enforceable against it in accordance with its terms.

6.3           Non-Contravention.

(a)           If the Stockholder is not an individual, the execution and delivery by the Stockholder of this Agreement and the Related Agreements to which it is a party and the performance of its obligations hereunder will not constitute or result in (i) a breach or violation of, or a default under, the Organizational Documents of the Stockholder, (ii) a breach or violation of, a termination (or right of termination) or default under, the creation or acceleration of any obligations under, or the creation of a Lien on any of the assets of the Stockholder (with or without notice, lapse of time or both) pursuant to, any agreement, lease, license, contract, note, mortgage, indenture, arrangement or other obligation binding upon the Stockholder, or (iii) a conflict with, breach or violation of any Law applicable to the Stockholder or by which its properties are bound or affected, except, in the case of clause (ii) or (iii), for any breach, violation, termination, default, creation or acceleration that would not, individually or in the aggregate, reasonably be expected to impair the ability of the Stockholder to perform its obligations under this Agreement on a timely basis.

(b)           If the Stockholder is an individual, the execution and delivery by the Stockholder of this Agreement and the Related Agreements to which it is a party and the performance of its obligations hereunder will not require any consent or approval from any third party that has not been given or other action that has not been taken by any third party, in each case, to the extent such consent, approval or other action would reasonably be expected to impair the ability of the Stockholder to perform its obligations under this Agreement on a timely basis.

6.4           Ownership.

(a)           As of the date hereof, the Stockholder (i) is the holder of record and Beneficially Owns [●] Shares, including [●] shares of Class [A/M] Common Stock, free and clear of any and all Liens, other than those created by this Agreement or any Related Agreements to which the Stockholder is a party, and (ii) has sole voting power over and right to consent with respect to all of such shares of Company Common Stock, including the Shares.

(b)           There are no preemptive rights or other similar rights in respect of the Shares, (ii) there are no Liens (other than Permitted Liens and Liens in favor of the Company to secure outstanding loans made by the Company to the Stockholder to acquire Shares) on the Shares, (iii) other than the Certificate of Incorporation and the Merger Agreement and, if the Stockholder is a trust, other than any power of a Directing Party pursuant to the terms of the governing trust instrument of the Stockholder regarding the trust's ownership, transfer or voting of the Shares (provided that Stockholder represents that such Directing Party has prior to the date hereof directed the Stockholder to execute, deliver and perform under this Agreement, there are no contractual obligations (including for the avoidance of doubt, voting trusts, stockholder agreements, proxies or other agreements) in effect relating to the ownership, transfer or voting of the Shares, (iv) except for Transactions, there is no contractual obligation to purchase, redeem or otherwise acquire, or make any payment (including any dividend or distribution) or any other investment in respect of, the Shares, and (v) there are no existing rights with respect to registration under the Securities Act of 1933, as amended, of the Shares.

6.5           Proceeding Pending. As of the date hereof, there is no Proceeding pending or, to the knowledge of the Stockholder, threatened against or affecting the Stockholder that, individually or in the aggregate, would reasonably be expected to impair the ability of the Stockholder to perform its obligations under this Agreement or to consummate the Transactions on a timely basis.

7.           Publicity. The Stockholder hereby (i) authorizes the Company and the Purchaser to publish and disclose in any announcement or disclosure in connection with the Transactions, including the Form S-4 and any other applicable filings under the Exchange Act or the Securities Act, its identity and the aggregate number of shares of the Company represented by Support Agreements, and the nature of its obligations under this Agreement, (ii) agrees that it shall promptly (A) furnish to the Company and the Purchaser any information that the Company or the Purchaser may reasonably request for the preparation of any such announcement or disclosure and (B) notify the Company and the Purchaser of any required corrections with respect to any written information supplied by it specifically for use in any such announcement or disclosure, if and to the extent that any such information contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading and (iii) agrees that it shall not, without the prior written consent of the Purchaser, make any public statement about the Transactions or this Agreement.

8.           Termination. Other than this Section 8 and Section 11, which shall survive any termination of this Agreement, this Agreement shall terminate and shall have no further force or effect immediately as of and following the Expiration Time. Notwithstanding the foregoing, nothing herein shall relieve any party hereto from liability for any breach of this Agreement that occurred prior to such termination.

9.           Duties. Each of the parties hereto are entering into this Agreement solely in their capacities as Beneficial Owners of the Shares, and nothing in this Agreement shall apply to any Person serving in his or her capacity as a director or officer of the Company.

10.         [Repayment of Company Stockholder Loan.     The Stockholder acknowledges and agrees that if such Stockholder does not, prior to the consummation of the Merger, repay in full all amounts outstanding as of the Effective Time under loans made by the Company to the Stockholder to fund the Stockholder’s purchase of Shares, such loan(s) shall be repaid automatically, and without any further action being required from Stockholder, pursuant to a repurchase of Shares by the Company for no additional consideration as payment in respect of the outstanding balance of such loans, such repurchase to be effective immediately prior to the consummation of the Merger and to consist of an amount of Shares as may be determined by the Board to be equivalent in value to the amount of such loan based on the expected Merger Consideration (having regard to such estimates and methodologies as may be determined by the Board with respect thereto, and excluding the effects of any adjustment to the Merger Consideration after the Closing).]¹

¹ To be included only for stockholders with outstanding loan balances.

11.           Miscellaneous.

11.1         Expenses. Except as otherwise provided herein, each party hereto shall bear its own fees and expenses with respect to this Agreement and the Transactions.

11.2         Notices. Any notice, request, instruction or other communication to be given under this Agreement by a party hereto shall be in writing and shall be deemed to have been given to the other party (a) when delivered, if delivered in person or by overnight delivery service (charges prepaid), (b) when sent, if sent via email, provided that no undeliverable message is received by the sender or (c) when received, if sent by registered or certified mail, return receipt requested, in each case to the address, facsimile number or email address of such party set forth below and marked to the attention of the designated individual:

If to the Purchaser, to:

Zurn Water Solutions Corporation

511 W. Freshwater Way

Milwaukee, WI 53204

Attention: Jeffrey LaValle, Vice President, General Counsel and Secretary

Email: jeffrey.lavalle@zurn.com

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

Morgan, Lewis & Bockius LLP

101 Park Avenue

New York, NY 10178

Attention:     R. Alec Dawson; Andrew L. Milano and Allison D. Gargano

Email: alec.dawson@morganlewis.com; andrew.milano@morganlewis.com; Allison.gargano@morganlewis.com

If to the Company prior to Closing, to:

Elkay Manufacturing Company
1333 Butterfield Road

Suite 200

Downers Grove, IL 60515

Attention: Kathleen J. Deighan

Email: Kathleen.deighan@elkay.com

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

Mayer Brown LLP
71 S Wacker Drive
Chicago, IL 60606
Attention: Paul Theiss
Email: PTheiss@mayerbrown.com and

JWagenmaker@mayerbrown.com

If to the Stockholder, to:

[Name]
[Address]

Attention: [●]
Email: [●]

or to such other individual or address or email address as a party may designate for itself by notice given in accordance with this Section 11.2.

11.3           Amendment; Waivers. The parties may amend, modify or supplement this Agreement only by a written agreement signed by Purchaser, the Stockholder and, if prior to the Closing, the Company. No failure or delay by a party in enforcing any of such party’s rights under this Agreement will be deemed to be a waiver of such rights. No single or partial exercise of a party’s rights will be deemed to preclude any other or further exercise of such party’s rights under this Agreement. No waiver of any of a party’s rights under this Agreement will be effective unless it is in writing and signed by such party (subject to the limitations herein).

11.4           Binding Effect; Assignment. This Agreement will be binding on and inure to the benefit of the parties and their respective successors and permitted assigns. No party may, by operation of law or otherwise, assign this Agreement or any of such party’s rights or obligations under this Agreement without the written Consent of the other parties.

11.5           No Third-Party Beneficiaries. This Agreement is solely for the benefit of the parties and their respective successors and permitted assigns, and nothing in this Agreement, express or implied, is intended to or will confer on any other Person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.

11.6           Severability. If any provision of this Agreement is declared invalid, illegal or unenforceable, (a) all other provisions of this Agreement will remain in full force and effect, and (b) the parties shall negotiate in good faith to amend or modify this Agreement to replace such invalid, illegal or unenforceable provision with a valid, legal, and enforceable provision giving effect to the parties’ intent to the maximum extent permitted by Law.

11.7           Entire Agreement. This Agreement, the Merger Agreement and the Related Agreements (including all exhibits and schedules hereto and thereto), and all other agreements required to be delivered at Closing pursuant hereto and thereto, contain the entire agreement among the parties and supersede all prior agreements, arrangements, and understandings, written or oral, among the parties relating to the subject matter of this Agreement, the Merger Agreement, the Related Agreements and all other agreements required to be delivered at the Closing pursuant hereto and thereto.

11.8           Construction. The parties have each participated in the negotiation and drafting of the terms of this Agreement. The parties agree that any rule of legal interpretation, to the effect that any ambiguity is to be resolved against the drafting party, will not apply in interpreting this Agreement. The headings of the sections and paragraphs of this Agreement have been inserted for convenience of reference only and will in no way restrict or otherwise modify any of the terms or provisions hereof. For the purposes of this Agreement, except as otherwise expressly provided in this Agreement or unless the context otherwise requires: (a) the singular number shall include the plural, and vice versa; (b) the masculine gender shall include the feminine and neuter genders; (c) the feminine gender shall include the masculine and neuter genders; (d) the neuter gender shall include masculine and feminine genders; (e) the words “include” and “including,” and variations thereof, shall not be deemed to be terms of limitation, but rather shall be deemed to be followed by the words “without limitation”; (f) the word “extent” in the phrase “to the extent” shall mean the degree to which a subject or other thing extends, and such phrase shall not mean simply “if”; (g) the word “will” shall be deemed to have the same meaning and effect as the word “shall”; (h) the terms “or,” “any” or “either” are not exclusive; (i) except as otherwise indicated, all references in this Agreement to “Sections,” “Exhibits” and “Schedules,” if any, are intended to refer to Sections of this Agreement and Exhibits or Schedules to this Agreement, if any, and (j) any reference to an applicable “Law” shall be such Law as amended from time to time.

11.9           Governing Law. This Agreement, and all claims or causes of action that are based on, arise out of or relate to this Agreement, will be governed by and construed in accordance with the Laws of the State of Delaware without regard to its conflicts of law rules and any other Law that would cause the application of the Laws (including the statute of limitations) of any jurisdiction other than the State of Delaware.

11.10           Jurisdiction, Service and Venue. Each party agrees: (a) to submit to the exclusive jurisdiction of the Delaware Court of Chancery in and for New Castle County, and should such Delaware Court of Chancery decline or not exercise jurisdiction, any Delaware State court sitting in New Castle County, unless the federal courts have exclusive jurisdiction, in which case the federal courts located in New Castle County in the State of Delaware (such courts, including appellate courts therefrom, the “Specified Courts”) for any Proceeding arising out of or relating to this Agreement or the Transactions, (b) to commence any Proceeding arising out of or relating to this Agreement or the Transactions only in the Specified Courts, (c) that service of any process, summons, notice or document by U.S. registered mail to the address of such party set forth in Section 11.2 will be effective service of process for any Proceeding brought against such party in any of the Specified Courts, (d) to waive any objection to the laying of venue of any Proceeding arising out of or relating to this Agreement or the Transactions in the Specified Courts, and (e) to waive and not to plead or claim that any such Proceeding brought in any of the Specified Courts has been brought in an inconvenient forum.

11.11           WAIVER OF TRIAL BY JURY. EACH PARTY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OF THE TRANSACTIONS. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (B) SUCH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (C) SUCH PARTY MAKES THIS WAIVER VOLUNTARILY, AND (D) SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 11.11.

11.12           Equitable Relief. The parties agree that irreparable damage, for which monetary relief, even if available, would not be an adequate remedy, would occur in the event that any provision of this Agreement is not performed in accordance with its specific terms or is otherwise breached, including if the parties fail to take any action required of them hereunder to consummate the Transactions. It is accordingly agreed that the parties will be entitled to an injunction or injunctions, specific performance or other equitable relief to prevent breaches of this Agreement and to enforce specifically the terms and provisions hereof without proof of damages or otherwise, this being in addition to any other remedy to which they are entitled under this Agreement, and (b) the right of specific performance and other equitable relief is an integral part of the Transactions and without that right, the parties would not have entered into this Agreement. The parties agree not to assert that a remedy of specific performance or other equitable relief is unenforceable, invalid, contrary to Law or inequitable for any reason, and not to assert that a remedy of monetary damages would provide an adequate remedy or that the parties otherwise have an adequate remedy at Law. The parties acknowledge and agree that any party pursuing an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement in accordance with this Section 11.12 will not be required to provide any bond or other security in connection with any such Order. The remedies available to the parties hereto pursuant to this Section 11.12 will be in addition to any other remedy to which they were entitled at Law or in equity, and the election to pursue an injunction or specific performance will not restrict, impair or otherwise limit any party from seeking the payment of any Liabilities, losses, damages, costs or expenses related to any breach of this Agreement.

11.13           Further Assurances. From time to time, at the request of the Purchaser, (a) the Stockholder shall take all such further actions, as may be necessary to, in the most expeditious manner reasonably practicable, effect the purposes of this Agreement and (b) the Company will enforce any terms of this Agreement against the Stockholder, including Section 2 through Section 5 hereof, and the Company shall refuse to record the Transfer of any Shares purported to be made in violation of the terms hereof.

11.14           Counterparts. This Agreement may be executed in counterparts (including using any electronic signature covered by the United States ESIGN Act of 2000, Uniform Electronic Transactions Act, the Electronic Signatures and Records Act or other applicable Law, e.g., www.docusign.com), and such counterparts may be delivered in electronic format, including by facsimile, email or other transmission method. Such delivery of counterparts shall be conclusive evidence of the intent to be bound hereby and each such counterpart, including those delivered in electronic format, and copies produced therefrom shall have the same effect as an originally signed counterpart. To the extent applicable, the foregoing constitutes the election of the parties to invoke any Law authorizing electronic signatures. Minor variations in the form of the signature page, including footers from earlier versions of this Agreement, shall be disregarded in determining a party’s intent or the effectiveness of such signature. No party shall raise the use of the delivery of signatures to this Agreement in electronic format as a defense to the formation of a Contract and each such party forever waives any such defense.

11.15           Trustee Capacity. To the extent any signatory to this Agreement is acting in a fiduciary capacity (e.g., as trustee of a trust), then the provisions of this Agreement shall apply only to the signatory in its fiduciary, and not its corporate or individual, capacity. Without limiting the generality of the foregoing, for purposes of this Agreement, a signatory’s Affiliates shall be determined only in reference to the signatory’s fiduciary capacity; i.e., neither a Directing Party under the governing trust instrument creating the fiduciary capacity, nor an entity that directly or indirectly Controls, is under common Control with, or is Controlled by the signatory in its corporate, but not in its fiduciary capacity, is an Affiliate for purposes of this Agreement.

[Signature page follows]

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

EXHIBIT A

FORM OF WRITTEN CONSENT OF STOCKHOLDER

exhibit b

Form of Board Observer Agreement

Execution Version

BOARD OBSERVER AGREEMENT

This Board Observer Agreement (this “Agreement”) is made effective as of February 12, 2022 (the “Effective Date”), by and between Zurn Water Solutions Corporation, a Delaware corporation (“Zebra”) and Ronald C. Katz (the “Observer,” and together with Zebra, each a “Party,” and collectively, the “Parties”). Capitalized terms used but not defined herein shall have the meanings ascribed to such terms in the Merger Agreement (as defined below).

RECITALS

WHEREAS, concurrently with the execution and delivery of this Agreement, Zebra, Elkay Manufacturing Company (“Elkay”), a Delaware corporation, Zebra Merger Sub, Inc., a Delaware corporation and wholly-owned subsidiary of Zebra (“Merger Sub”) and the Stockholder Representative are entering into that certain Agreement and Plan of Merger (the “Merger Agreement”), pursuant to which, upon the terms and subject to the conditions set forth in therein, on the Closing Date, Merger Sub will merge with and into Elkay, the separate existence of Merger Sub shall cease, and Elkay shall continue as the surviving corporation and a wholly-owned subsidiary of Zebra (collectively with the other transactions contemplated by the Merger Agreement, the “Transactions”); and

WHEREAS, in accordance with Section 2.8(b) of the Merger Agreement, from and after the Closing, during the term of this Agreement, Zebra shall permit the Observer to participate in all meetings of the board of directors of Zebra (the “Zebra Board”) in a nonvoting, observer capacity, subject to and in accordance with the terms hereof.

NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:

1.           Observer Rights & Obligations. Subject to Section 3 and Section 2 below:

1.1           Until the Observer ceases to serve in such capacity, Zebra hereby grants to the Observer the right to attend all meetings (including telephonic or videoconference meetings) of the Zebra Board in his capacity as an observer. Except as set forth in Section 2 below, the Observer may observe and participate fully in discussions at all meetings of the Zebra Board, but in no event shall the Observer, in his capacity as such: (a) be deemed to be a director or a member of, or consultant or advisor to, the Zebra Board (or any committee); or (b) have the right to call a meeting of the Zebra Board or vote on or propose any motions, resolutions or other actions for a vote or approval by the Zebra Board (or any committee). Neither Zebra nor the Zebra Board shall have any obligation to act upon or otherwise take into account any recommendations of or input from the Observer. Subject to Section 1.2 and Section 2 below, Zebra shall allow the Observer to attend all meetings of the Zebra Board in the same manner it allows any directors on the Zebra Board, in accordance with the bylaws of Zebra, including in person (if an in-person meeting) or by telephone or other electronic means of communication by which such meeting is held and pursuant to which all participants in the meetings can hear and be heard by each other. Without limiting the notice and information rights and obligations in Section 2 below, the presence of the Observer shall not be required for purposes of establishing a quorum at any meeting of the Zebra Board, or for the calling to order of any such meeting of the Zebra Board. For the avoidance of doubt, the Observer shall have no right to control the scheduling of any of the meetings described in this Section 1.1. The rights granted to the Observer pursuant to this Section 1.1 shall terminate immediately upon the termination of this Agreement in accordance with Section 4.

1.2           Compliance with Zebra Policies. Observer acknowledges that he will comply with all policies, processes, procedures, codes, rules, standards, and guidelines applicable, from time to time, to members of the Zebra Board as if he was a board member, including, the Zebra’s Code of Business Conduct and Ethics, and policies on confidentiality, ethics, hedging and pledging of Zebra’s securities, public disclosures, stock trading, and stock ownership (collectively, the “Zebra Policies and Procedures”). The Observer shall provide Zebra with such information as is reasonably requested by Zebra concerning the Observer as is required to be disclosed under applicable Law or stock exchange regulations, in each case as promptly as necessary as determined by Zebra.

1.3           Reimbursement. Zebra hereby agrees, in accordance with its Organizational Documents, to reimburse the Observer for all reasonable out-of-pocket travel expenses incurred (consistent with Zebra’s travel policy) in connection with attending meetings of the Zebra Board. The rights granted to the Observer pursuant to this Section 1.3 are, for the avoidance of doubt, non-transferrable, and shall terminate immediately upon the termination of this Agreement in accordance with Section 4.

2.           Meeting Attendance Exceptions, Notice and Information Rights. Until the Observer ceases to serve in such capacity, Zebra shall provide to the Observer copies of all notices, minutes, consents and other materials that Zebra provides to the members of the Zebra Board (collectively, “Board Materials”), at the same time and in the same manner as such information is delivered to the other members of the Zebra Board. Notwithstanding the immediately preceding sentence or anything else to the contrary contained herein, Zebra may withhold certain Board Materials from the Observer or exclude the Observer from certain meetings (or portions of meetings) of the Zebra Board if the Zebra Board determines, in its sole discretion and in good faith that such action with respect to the Observer is necessary to avoid an actual or potential conflict of interest between Zebra, on the one hand, and the Observer or any of his associates or Affiliates, on the other hand, comply with the terms and conditions of confidentiality agreements with third-parties or applicable law, and/or preserve attorney-client privilege, work product or similar privilege. The rights granted to the Observer pursuant to this Section 2 shall terminate immediately upon the termination of this Agreement in accordance with Section 4.

3.           Confidential Information.

3.1           To the extent any information obtained by the Observer from Zebra is Confidential Information (as defined below), the Observer will treat any such Confidential Information in accordance with the terms and conditions of this Section 3.

3.2           As used in this Agreement, “Confidential Information” means any and all information or data concerning Zebra or any of its Affiliates, whether in verbal, visual, written, electronic or other form (including but not limited to all Board Materials that are or contain non-public, competitive or business sensitive or proprietary information), together with all notes or information discerned from, based on or relating to any of the foregoing that may be prepared or created by the Observer; provided, however, that “Confidential Information” shall not include information that: (a) is or becomes generally available to the public (other than as a result of the unauthorized disclosure of such information in violation of this Agreement by the Observer); (b) is independently developed by the Observer without the use of Confidential Information; (c) becomes available to the Observer at any time on a non-confidential basis from a third party that is not, to the Observer’s knowledge after due inquiry, prohibited from disclosing such information to the Observer by any contractual, legal or fiduciary obligation; or (d) was known by the Observer prior to his receipt thereof from Zebra as proven by written evidence.

3.3           The Observer shall: (a) retain all Confidential Information in strict confidence and acknowledges and agrees that the disclosure of such information could cause irreparable harm to Zebra and its stockholders; (b) not disclose Confidential Information in any manner to any other person or entity; and (c) use the Confidential Information solely in connection with: (i) the exercise of his rights as a non-voting observer of the Board as provided in this Agreement; or (ii) monitoring and enforcing the Observer’s rights hereunder; provided, however, that the foregoing shall not apply to or limit any disclosure to the extent such disclosure is required to be disclosed by applicable Law, provided that, to the extent not prohibited by Law, the Observer shall give Zebra prompt written notice of such requirement and cooperate with Zebra to seek a protective order or other appropriate remedies to obtain assurance that confidential treatment will be accorded such Confidential Information. The confidentiality provisions of this Agreement shall survive the termination of this Agreement.

3.4           Upon the time that Observer shall cease to serve as a non-voting observer of the Board no matter the cause, the Observer shall, as promptly as reasonably practicable (but in any case no later than three (3) business days), return all Confidential Information to the Zebra and provide written certification to Zebra that such materials have been so returned, are no longer in his possession and no copies have been retained.

4.           Termination. Subject to Zebra’s Organizational Documents, this Agreement and the rights and obligations hereunder shall immediately terminate and be of no further force and effect (other than provisions which are expressly designated as surviving termination), and the Observer shall not be able to attend any Board or committee meetings or receive any Confidential Information (including, but not limited to Board Materials), upon the earliest to occur of (a) the date on which the Observer and his Affiliates or transferees (including Ice Mountain and its Affiliates) no longer Beneficially Own at least 5% of the Purchaser Shares which they are entitled to be issued pursuant to Sections 2.5(a) and 4.2(d) of the Merger Agreement (or, if later, the first anniversary of the date of this Agreement), (b) Observer’s irrevocable resignation as an observer delivered to Zebra in writing, or (c) Observer’s death or disability (as reasonably determined by Zebra); provided, that no termination of this Agreement shall affect the rights or obligations provided in Section 3 and Section 5 through 17 hereof which shall survive such termination or affect any other provision of this Agreement that is intended or contemplated to survive such termination as provided herein.

5.           Notices. Any notice, request, instruction or other communication to be given under this Agreement by a Party shall be in writing and shall be deemed to have been given to the other Party (a) when delivered, if delivered in person or by overnight delivery service (charges prepaid), (b) when sent, if sent via email with confirmation that the message was delivered, and provided that no undeliverable message is received by the sender or (c) when received, if sent by registered or certified mail, return receipt requested, in each case to the address, facsimile number or email address of such Party set forth below and marked to the attention of the designated individual, provided that with respect to notices deliverable to the Stockholder Representative, such notices shall be delivered solely via email or facsimile:

If to Zebra, to:

Zurn Water Solutions Corporation

511 W. Freshwater Way

Milwaukee, WI 53204

Attention: Jeffrey LaValle, Vice President, General Counsel and Secretary

Email: jeffrey.lavalle@zurn.com

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

Morgan, Lewis & Bockius LLP

101 Park Avenue

New York, NY 10178

Attention:     R. Alec Dawson; Andrew L. Milano and Allison D. Gargano

Email: alec.dawson@morganlewis.com; andrew.milano@morganlewis.com; Allison.gargano@morganlewis.com

Facsimile:     (212) 309-6001

If to the Observer, to:

Ron C. Katz

827 Garfield Avenue

Hinsdale, IL 60621
Email: ron.katz@elkay.com

6.           Governing Law. This Agreement, and all claims or causes of action that are based on, arise out of or relate to this Agreement, will be governed by and construed in accordance with the Laws of the State of Delaware without regard to its conflicts of law rules and any other Law that would cause the application of the Laws (including the statute of limitations) of any jurisdiction other than the State of Delaware. Each of the parties hereto irrevocably agrees that any legal action or proceeding that may be based upon, arise out of or relate to this Agreement or the negotiation, execution or performance hereof, shall be brought and determined exclusively in the Court of Chancery of the State of Delaware and any state appellate court therefrom located in the State of Delaware (or, only if the Court of Chancery of the State of Delaware declines to accept jurisdiction over a particular matter, any state or federal court located in the State of Delaware).

7.           WAIVER OF JURY TRIAL. EACH PARTY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OF THE TRANSACTIONS. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (B) SUCH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (C) SUCH PARTY MAKES THIS WAIVER VOLUNTARILY, AND (D) SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 7.

8.           Equitable Relief. The Parties agree that irreparable damage, for which monetary relief, even if available, would not be an adequate remedy, would occur in the event that any provision of this Agreement is not performed in accordance with its specific terms or is otherwise breached, including if the Parties fail to take any action required of them hereunder to consummate the Transactions. It is accordingly agreed that, prior to the valid termination of this Agreement pursuant to Section 4, (a) the Parties will be entitled to an injunction or injunctions, specific performance or other equitable relief to prevent breaches of this Agreement and to enforce specifically the terms and provisions hereof without proof of damages or otherwise, this being in addition to any other remedy to which they are entitled under this Agreement, and (b) the right of specific performance and other equitable relief is an integral part of the Transactions and without that right, neither Zebra nor the Observer would have entered into this Agreement. Prior to the valid termination of this Agreement pursuant to Section 4, the Parties agree not to assert that a remedy of specific performance or other equitable relief is unenforceable, invalid, contrary to Law or inequitable for any reason, and not to assert that a remedy of monetary damages would provide an adequate remedy or that the Parties otherwise have an adequate remedy at Law. The Parties acknowledge and agree that any Party pursuing an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement in accordance with this Section 8 will not be required to provide any bond or other security in connection with any such Order. Except as otherwise provided in this Agreement, the remedies available to the Parties pursuant to this Section 8 will be in addition to any other remedy to which they were entitled at Law or in equity, and the election to pursue an injunction or specific performance will not restrict, impair or otherwise limit any Party from seeking the payment of any Liabilities, losses, damages, costs or expenses related to any breach of this Agreement.

9.           Entire Agreement. This Agreement, the Merger Agreement and the Related Agreements (including all exhibits and schedules hereto and thereto), and all other agreements required to be delivered at Closing pursuant hereto and thereto, contain the entire agreement among the parties and supersede all prior agreements, arrangements, and understandings, written or oral, among the parties relating to the subject matter of this Agreement, the Merger Agreement, the Related Agreements and all other agreements required to be delivered at the Closing pursuant hereto and thereto. To the extent there is a conflict between this Agreement and any of the Merger Agreement, the Related Agreements and all other agreements required to be delivered at the Closing, with respect to the rights provided to Observer in Section 1 hereof, this Agreement shall control.

10.           Construction. The Parties have each participated in the negotiation and drafting of the terms of this Agreement. The Parties agree that any rule of legal interpretation, to the effect that any ambiguity is to be resolved against the drafting Party, will not apply in interpreting this Agreement. The headings of the sections and paragraphs of this Agreement have been inserted for convenience of reference only and will in no way restrict or otherwise modify any of the terms or provisions hereof. For the purposes of this Agreement, except as otherwise expressly provided in this Agreement or unless the context otherwise requires: (a) the singular number shall include the plural, and vice versa; (b) the neuter gender shall include masculine and feminine genders; (c) the words “include” and “including,” and variations thereof, shall not be deemed to be terms of limitation, but rather shall be deemed to be followed by the words “without limitation”; (d) the word “extent” in the phrase “to the extent” shall mean the degree to which a subject or other thing extends, and such phrase shall not mean simply “if”; (e) the word “will” shall be deemed to have the same meaning and effect as the word “shall”; (f) the terms “or,” “any” or “either” are not exclusive; (g) except as otherwise indicated, all references in this Agreement to “Sections” are intended to refer to Sections of this Agreement; and (j) any reference to an applicable “Law” shall be such Law as amended from time to time.

11.           Amendment and Waivers. The Parties may amend, modify or supplement this Agreement only by a written agreement signed by Zebra and the Observer. No failure or delay by a Party in enforcing any of such Party’s rights under this Agreement will be deemed to be a waiver of such rights. No single or partial exercise of a Party’s rights will be deemed to preclude any other or further exercise of such Party’s rights under this Agreement. No waiver of any of a Party’s rights under this Agreement will be effective unless it is in writing and signed by such Party (subject to the limitations herein).

12.           Assignability. The Observer may not assign or otherwise transfer this Agreement or any of the rights, interests or obligations set forth in this Agreement, and any attempted transfer or assignment shall be null and void, and no transfer or assignment shall be deemed to have occurred by operation of law.

13.           No Third Party Beneficiaries. This Agreement is solely for the benefit of the Parties, and nothing in this Agreement, express or implied, is intended to or will confer on any other Person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.

14.           Severability. If any provision of this Agreement is declared invalid, illegal or unenforceable, (a) all other provisions of this Agreement will remain in full force and effect, and (b) the Parties shall negotiate in good faith to amend or modify this Agreement to replace such invalid, illegal or unenforceable provision with a valid, legal, and enforceable provision giving effect to the Parties’ intent to the maximum extent permitted by Law.

15.           Expenses. Except as set forth in Section 1.3, each Party shall be responsible for its costs and expenses in connection with the negotiation of this Agreement.

16.           Counterparts. This Agreement may be executed in counterparts (including using any electronic signature covered by the United States ESIGN Act of 2000, Uniform Electronic Transactions Act, the Electronic Signatures and Records Act or other applicable Law, e.g., www.docusign.com), and such counterparts may be delivered in electronic format, including by facsimile, email or other transmission method. Such delivery of counterparts shall be conclusive evidence of the intent to be bound hereby and each such counterpart, including those delivered in electronic format, and copies produced therefrom shall have the same effect as an originally signed counterpart. To the extent applicable, the foregoing constitutes the election of the Parties to invoke any Law authorizing electronic signatures. Minor variations in the form of the signature page, including footers from earlier versions of this Agreement, shall be disregarded in determining a Party’s intent or the effectiveness of such signature. No Party shall raise the use of the delivery of signatures to this Agreement in electronic format as a defense to the formation of a Contract and each such Party forever waives any such defense.

17.           Captions. The captions of the Sections of this Agreement are solely for convenience of reference and shall not be deemed to affect the meaning or interpretation of any provision of this Agreement.

[signature page follows]

IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed as of the Effective Date.

[Signature Page to Board Observer Agreement]

exhibit c

Spinoff Documents

SPIN-OFF AGREEMENT

This SPIN-OFF AGREEMENT (this “Agreement”), is dated as of _______________, 2022, by and among Elkay Manufacturing Company, a Delaware corporation (“EMC”) and Elkay Interior Systems International, Inc., a Delaware corporation and a wholly-owned subsidiary of EMC (“EIS International”). EMC and EIS International are sometimes referred to in this Agreement individually as a “Party” and collectively as the “Parties.”

RECITALS

WHEREAS, on February 12, 2022, EMC, Zurn Water Solutions Corporation, a Delaware corporation (“Zebra”), Zebra Merger Sub, Inc., a Delaware corporation (“Merger Sub”) and EIS International, a Delaware corporation, as representative of the stockholders of EMC entered into that certain Agreement and Plan of Merger (the “Merger Agreement”), pursuant to which, upon the terms and subject to the conditions set forth in therein, Merger Sub will merge with and into EMC, the separate existence of Merger Sub shall cease, and EMC shall continue as the surviving corporation and an indirect wholly-owned subsidiary of Zebra (collectively with the other transactions contemplated by the Merger Agreement, the “Potential Transactions”);

WHEREAS, the board of directors of EMC (the “EMC Board”) has determined it is in the best interests of EMC to consummate the Potential Transactions, including the execution of this Agreement;

WHEREAS, EMC has progressed to its current legal and operational structure through a series of acquisitions and the operation of its business with two primary divisions: the Plumbing Division, which includes the business of the manufacture, sourcing, distribution and sale of water delivery solutions, which includes water fountains, bottle filling stations and water dispensers, as well as non-residential and residential sinks, faucets and accessories (the “Plumbing Business”), and the Interior Systems Division, which includes the manufacture and supply of seating and décor products to customers in various industries, the acting as a general contractor, subcontractor or furniture, fixtures and equipment supplier with respect to the renovation of hotel interiors and similarly structured properties and the manufacture and supply of various stainless steel products for global customers in the restaurant industry (the “EIS Business”); provided that for the purposes of this Agreement, the EIS Business shall be excluded from the definition of “Plumbing Business, and the Plumbing Business shall be excluded from the definition of “EIS Business;”

WHEREAS, the Plumbing Business and the EIS Business have disparate customer bases, suppliers, strategic focuses and corporate support needs;

WHEREAS, as an inducement to the willingness of Zebra to execute the Merger Agreement, Zebra required the consummation of the carve-out and spin-off of the EIS Business pursuant to the Spin-Off Documents (as defined below), each of which is has been or is being entered into on or prior to the date hereof prior to, and as a condition of, the closing of the Potential Transactions, and each of (a) the EMC Board and (b) the Board of Directors of EIS International (the “EIS Board”) has determined it to be in the best interests of EMC and EIS International, respectively, to proceed with such carve-out and spin-off pursuant to the terms contemplated in the Spin-Off Documents;

WHEREAS, the Plumbing Business and the EIS Business currently operate under a shared services model with EMC providing corporate support services, including finance, IT, legal and human resources services, to each of the Plumbing Business and the EIS Business;

WHEREAS, in contemplation of the Potential Transactions and in an effort to maximize the operational efficiency of each of the EIS Business and the Plumbing Business, the EMC Board has tasked EMC with preparing each division to operate as a standalone company to facilitate an eventual spin-off of the EIS Business, which shall occur through a pro rata dividend distribution of the Spin-Off Shares (as defined below) to the holders of the EMC Common Stock as of the Record Date (the “Spin-Off”), following which, EIS International will no longer be a subsidiary of EMC and will be the parent entity of the EIS Business;

WHEREAS, in contemplation of the Spin-Off, (i) EMC contributed $6,896,000 to EIS International to effectuate the purchase of Elkay Interior Systems, Latin America, S. De R.L. de C.V. (“EIS Latin America”) (the “Contributed Capital”), (ii) EMC transferred 100% of the equity interests of its direct subsidiary, Elkay Interior Systems, Inc. (“EIS”), a Wisconsin corporation to EIS International, pursuant to that certain contribution agreement (the “EIS Contribution Agreement”), dated as of December 31, 2021, by and between EMC and EIS International (the “EIS Contribution”), (iii) EMC transferred 75% of Elkay Asia, Inc. to EIS International, pursuant to that certain transfer form (the “Elkay Asia Transfer Form”), dated as of January 10, 2022, by EMC (the “Elkay Asia Contribution”), (iv) Grupo Bernox, S.A. de C.V. (“Grupo Bernox”) transferred 100% of its partnership interests in EIS Latin America to EIS and E.B. Tecnica Mexicana, S.A. de C.V. (“Elkay Mexico”) transferred 100% of its partnership interests of EIS Latin America to EIS International and EIS International, respectively, pursuant to the terms of (a) that certain Partnership Interest Purchase and Sale Agreement (the “Grupo Bernox Partnership Interest PSA”), dated as of December 31, 2021, by and between Grupo Bernox and EIS, and (b) that certain Partnership Interest Purchase and Sale Agreement (the “Elkay Mexico Partnership Interest PSA, and together with the Grupo Bernox Partnership Interest PSA, the “Partnership Interest PSAs”), dated as of December 31, 2021, by and between Elkay Mexico and EIS International, (v) EMC will transfer the Transferred Assets and Assumed Liabilities (as such terms are defined therein) to EIS International, pursuant to that certain Asset Transfer Agreement in the form attached to the Merger Agreement (the “Asset Transfer Agreement between EMC and EIS International”) dated as of [●], between EMC and EIS International (the “Asset Contribution” and collectively with the Contributed Capital, EIS Contribution and the Elkay Asia Contribution, the “Contribution”) and (vi) Elkay Sales, Inc., an Illinois corporation (“ESI”) and Elkay Plumbing Products Company, a Delaware corporation (“EPPC”) will transfer the Transferred Assets and Assumed Liabilities (as such terms are defined therein) to EIS pursuant to that certain Asset Transfer Agreement in the form attached to the Merger Agreement (the “Asset Transfer Agreement among ESI, EPPC and EIS,”) dated as of [●], by and among ESI, EPPC and EIS (collectively with the Contribution and the transactions contemplated by the Partnership Interest PSAs, the “Restructuring Transactions”);

WHEREAS, the EMC Board and the EIS Board have unanimously (a) determined that this Agreement, the other Spin-Off Documents and the transactions contemplated thereby, including the Spin-Off and the Restructuring Transactions (collectively, the “Spin-Off Transactions”), are fair to and in the best interests of EMC and its stockholders and EIS and its stockholders, as applicable, and (b) approved and declared advisable this Agreement, the other Spin-Off Documents and the Spin-Off Transactions;

WHEREAS, for United States federal and state income tax purposes, it is intended that the Contribution and the Spin-Off qualify for the Intended Tax Treatment (as defined below); and

WHEREAS, the EMC Board and the EIS Board were each presented with and approved the Plan of Reorganization dated [●], 2022 and the Elkay Manufacturing Restructuring Plan provided by KPMG dated [●], 2022 (together, the “Plan of Reorganization”) to effectuate the Spin-Off Transactions as well the entry into this Agreement, which includes the allocation of certain rights and responsibilities of EMC, EIS International and their respective Affiliates as of the Effective Time and to provide for certain other matters.

NOW, THEREFORE, in consideration of the mutual representations, warranties, covenants and agreements contained in this Agreement and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:

ARTICLE I

Definitions

1.1           Definitions.  In addition to the terms defined elsewhere herein, as used in this Agreement, the following terms will have the meanings specified below when used in this Agreement with initial capital letters:

“Action” means an action, cause of action, including administrative actions, claim, suit, arbitration, proceeding, audit, hearing, examination, investigation or other litigation (whether in law or in equity and whether civil, criminal, administrative, investigative or informal) controversy, assessment, grievance, inquiry, request for information, mediation, charge, complaint, demand, notice or notices of violations to, from, by or before any Governmental Authority or any mediator, including any charge or complaint filed with the National Labor Relations Board or the Equal Employment Opportunity Commission.

“Affiliate” means, with respect to any specified Person, any other Person that, directly or indirectly, controls, is under common control with, or is controlled by such specified Person. The term “control” (including its correlative meanings “under common control with” and “controlled by”) as used in the preceding sentence means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through ownership of securities or partnership or other interests, by Contract or otherwise. For the avoidance of doubt, and for purposes of this Agreement, Transferee shall not be deemed to be an Affiliate of any Transferor on and after the Effective Time.

“Ancillary Agreements” means each of the Tax Matters Agreement, Plan of Reorganization, Transition Services Agreement, any agreement entered pursuant to the Restructuring Transaction and any other agreements, instruments, or certificates related thereto or to the transactions contemplated by this Agreement (in each case, together with the schedules, exhibits, annexes and other attachments thereto).

“Applicable Law” means any law (including common law), statute, standard, resolution, regulation or promulgation, ordinance, rule, code, constitution, treaty, requirement or rule of law enacted, promulgated, issued, released or imposed by any Governmental Authority, or any Order, or any license, franchise, permit or similar right granted under any of the foregoing, or any similar provision or duty or obligation having the force or effect of law.

“Benefit Plan” means (a) an “employee benefit plan” within the meaning of Section 3(3) of ERISA, whether or not subject to ERISA, other than a “multiemployer plan” (as defined in Section 3(37) of ERISA), (b) a stock bonus, stock purchase, stock option, restricted stock, stock appreciation right or similar equity or equity-based plan or (c) any retirement or deferred compensation plan, incentive compensation plan, commission plan or arrangement, retention plan or agreement, unemployment compensation plan, vacation pay, change in control, severance pay, non-discretionary bonus or benefit arrangement, insurance or hospitalization program, flexible benefit plan, cafeteria plan, dependent care plan or any fringe benefit arrangements, whether pursuant to Contract, arrangement, custom or informal understanding, which does not constitute an employee benefit plan within the meaning of Section 3(3) of ERISA.

“Contract” means any contract, agreement, lease, license, indenture, mortgage, note, bond, guaranty or other legally binding commitment, arrangement or understanding, whether written or oral, and any ancillary documents related thereto, such as purchase orders, sales orders, subscription agreements, statements of work, and amendments or addendums thereto.

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

“Effective Time” shall mean 12:01 a.m. Central Time [●], 2022.

“EIS International Common Stock” means the Class A Common Stock of EIS International, par value $0.01 per share.

“EIS Group” means, collectively, EIS and all of its Subsidiaries as listed on Schedule A hereto.

“EIS Virginia Lease” means that certain Office Lease Agreement, dated as of May 31, 1996 (as amended), by and between TIP Owner, L.L.C. and Digney York Associates, LLC.

“EMC Common Stock” means each of the Class A, Class B, Class M and Class N Common Stock of EMC, par value $0.01 per share.

“EMC Group” means EMC and all of its Subsidiaries as listed on Schedule B hereto.

“Equity Interests” means (a) shares of capital stock, limited liability company membership interests, partnership interests or other equity interests of an entity, as applicable, and (b) any options, warrants, phantom stock, convertible notes or other securities exercisable for or convertible into any of the securities described in clause (a).

“Governmental Authority” means any federal, state, provincial, local, foreign or supra-national government or other political subdivision thereof, or any multinational organization or authority, or any entity, body, authority, agency, commission, court, tribunal or judicial body entitled to exercise executive, legislative, judicial, regulatory, arbitral, police or administrative law functions or power, including quasi-governmental, self-regulated or private entities established to perform such functions.

“Intended Tax Treatment” has the meaning set forth in the Tax Matters Agreement.

“Intercompany Agreement” means a Contract between a member of the EIS Group or one of their respective Affiliates, on the one hand, and any member of the EMC Group or one of their respective Affiliates, on the other hand.

“Liability” or “Liabilities” means any debt, liability, commitment or obligation of any nature, whether pecuniary or not, asserted or unasserted, accrued or unaccrued, absolute or contingent, matured or unmatured, liquidated or unliquidated, determined or determinable or otherwise, incurred or consequential, known or unknown and whether due or to become due, including those arising under any Contract, Applicable Law or Order.

“Order” means any order, writ, judgment, decree, injunction, stipulation, settlement, award or consent order of or with any Governmental Authority.

“Person” means any individual, corporation, limited liability company, partnership, joint venture, trust, Governmental Authority or other legal entity.

“Record Date” means the close of business on the date to be determined by the EMC Board as the record date for determining stockholders of EMC entitled to receive shares of EIS International Common Stock pursuant to the Spin-Off, which date will be [●], 2022.

“Spin-Off Date” means the date on which the Spin-Off occurs, which date will be [●], 2022.

“Spin-Off Documents” means this Agreement and the Ancillary Agreements.

“Subsidiary” of any Person means (a) any corporation, limited liability company, joint venture, trust or other legal entity, an amount of the voting Equity Interests of which sufficient to elect at least fifty percent (50%) of the board of directors, board of managers or other governing body of such corporation, limited liability company, joint venture, trust or other legal entity that is owned or controlled, directly or indirectly, by such Person or one or more other Subsidiaries of such Person or a combination thereof, or (b) any partnership of which such Person or another Subsidiary of such Person is the general partner.

“Tax” or “Taxes” has the meaning set forth in the Tax Matters Agreement.

“Tax Matters Agreement” means the Tax Matters Agreement, dated as of [●], 2022 by and between EMC and EIS International.

“Transition Services Agreement” means the Transition Services Agreement, dated as of the date hereof, by and between EMC and EIS International.

1.2            Interpretation.  When a reference is made in this Agreement to an Article, a Section, a clause, a Schedule, that reference is to an Article, a Section or a clause of, or a Schedule to, this Agreement unless otherwise indicated. The table of contents and headings contained in this Agreement are for reference purposes only and will not affect in any way the meaning or interpretation of this Agreement. Whenever the words “include,” “includes” or “including” are used in this Agreement, they will be deemed to be followed by the words “without limitation,” whether or not they are in fact followed by those words or words of like import. Whenever the singular is used herein, the same will include the plural, and whenever the plural is used herein, the same will include the singular, where appropriate. All Schedules annexed hereto or referred to herein are hereby incorporated in and made a part of this Agreement as if set forth in full herein. Any capitalized term used in any Schedule but not otherwise defined therein will have the meaning given to such term in this Agreement. “Writing,” “written” and comparable terms refer to printing, typing and other means of reproducing words (including electronic media) in a visible form. References from or through any date mean, unless otherwise specified, from and including or through and including, respectively. This Agreement is to be construed without regard to any presumption or rule requiring construction or interpretation against the Party drafting or causing any instrument to be drafted. References to any statute, listing rule, rule, standard, regulation or other Applicable Law will be deemed to include a reference to the corresponding rules and regulations, if any, and each of them as amended, modified, supplemented, consolidated, replaced or rewritten from time to time. References to any Applicable Law or section of Applicable Law, any statute, listing rule, rule, standard, regulation or other Applicable Law will be deemed to include any successor to Applicable Law or section of Applicable Law.

ARTICLE II

Spin-Off

2.1.           EIS International Share Increase.   Prior to the date hereof, each of EMC and EIS International have taken all actions necessary to increase, and EIS International has increased, the authorized shares of EIS International Common Stock to 250,000.000 of which [214,543.358] shares have been issued to EMC (the “Spin-Off Shares”).

2.2.           The Spin-Off.  Upon the terms and subject to the conditions of this Agreement, following and contingent upon the Restructuring Transactions, EMC will declare and effectuate the Spin-Off with an effectiveness as of the Effective Time. through a distribution of all of the Spin-Off Shares to EMC’s stockholders as of the Record Date in accordance with Section 2.3 below.

2.3.           Delivery of Spin-Off Shares.   Upon the consummation of the Spin-Off, in accordance with Applicable Law, EMC and EIS International shall effect the book-entry transfer in the books and records of EIS International by EMC of all of the Spin-Off Shares to and for the account of EMC’s stockholders as of the Record Date (the “Record Holders”) on a pro rata basis. In connection therewith, all of the Spin-Off Shares held by EMC as of immediately prior to the Effective Time will be distributed to all of the Record Holders in a manner determined by EMC.

ARTICLE III

Employee Matters

3.1.           Employee Matters.   As of the Spin-Off Date and except as otherwise contemplated in the Transition Services Agreement, EIS International shall terminate each of their and the EIS Group’s participation in, and withdraw from, any Benefit Plans sponsored by EMC (“EMC Benefit Plans”), and, as a result thereof, except as provided in the Transition Services Agreement, employees of EIS International and the EIS Group shall cease to participate in the EMC Benefit Plans as active participants thereunder immediately prior to the Spin-Off Date. EMC shall cooperate in such termination and withdrawal. Except with respect to a portion of the assets in the Elkay Manufacturing Company Retirement and Savings Plan that will be transferred to a new plan established by EIS International, no assets of the EMC Benefit Plans will be transferred to EIS International or the EIS Group as a result of the Spin-Off. Without limitation, EIS International shall be solely responsible for all Liabilities to the EMC Benefit Plans not previously covered by payment or contribution by EIS International to EMC or to such EMC Benefit Plans with respect to any current or former employee, independent contractor, or any other Person who primarily provides or provided services to of any member of the EIS Group on and prior to the date of the Spin-Off notwithstanding any status as an EMC Benefit Plan, including, without limitation, (i) amounts which are accrued but unpaid as of the Spin-Off Date with respect thereto, or (ii) employee or independent contractor claims of any kind. Except as provided in the Transition Services Agreement, EIS International acknowledges that it is solely responsible for providing continuation health coverage, as required under the Consolidated Omnibus Reconciliation Act of 1985, as amended (“COBRA”), for or in respect of any individual employed at any time by EIS International and the EIS Group participating in an EMC Benefit Plan subject to COBRA who incurred or incurs a “qualifying event” as defined in COBRA on, prior to, or after the Spin-Off Date, or that would be imposed on EMC in connection with the transactions contemplated by reason of this Agreement pursuant to Treas. Reg §54.4980B-9.

ARTICLE IV

Representations and Covenants

4.1.           Representations.

(a)           Each Party to this Agreement has full power and authority to execute and deliver this Agreement and the other Spin-Off Documents to which it is a party, and to consummate the Spin-Off. The execution and delivery of this Agreement and the other Spin-Off Documents to which it is a party and the consummation of the Spin-Off have been duly and validly authorized by such Party, and no other proceedings on the part of such Party or any other person are necessary to authorize the execution and delivery by such Party of this Agreement and the other Spin-Off Documents to which it is a party or the consummation of the Spin-Off.

(b)           This Agreement has been duly and validly executed and delivered by the Parties hereto, and (assuming the valid execution and delivery of this Agreement by the other Parties hereto and thereto) constitutes the legal, valid and binding agreement of such Party enforceable against it in accordance with its terms, except as such obligations and their enforceability may be limited by (i) bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting the enforcement of creditors’ rights generally, (ii) by general principles of equity, or (iii) the power of a court to deny enforcement of remedies based on public policy.

4.2.           Litigation Matters. Each Party hereto will use their commercially reasonable efforts to aid the other Party hereto in the defense of any third-party Action (other than, for the avoidance of doubt, any action relating to the Merger Agreement or any of its Related Agreements) relating to the EIS Business (in the case of the EIS Group), or the Plumbing Business (in the case of the EMC Group), make available during normal business hours, but without unreasonably disrupting their respective businesses, and personnel and shall furnish, and shall cause to be furnished, all records in their possession, custody and/or control, solely to the extent not otherwise available to such Party and reasonably available to such Party being requested, relating to the EIS Business or the Plumbing Business, as applicable, as advised by counsel to such Party is reasonably necessary to permit the effective defense or investigation of such Action, provide however, that neither Party shall be required to provide access to, disclose information to or assist or cooperate with the other Party, in each case if such access, disclosure, assistance or cooperation (i) would, as reasonably determined based on the advice of outside counsel, jeopardize any attorney-client privilege with respect to such information, or (ii) would contravene any Applicable Law or Contract to which the applicable party is a subject or bound; provided that each Party shall, and each shall cause its Subsidiaries to, use reasonable best efforts to make appropriate substitute disclosure arrangements under circumstances in which such restrictions apply (including redacting such information (A) to remove references concerning valuation, (B) as necessary to comply with any Contract in effect on the date hereof or after the date hereof, and (C) as necessary to address reasonable attorney-client, work-product or other privilege or confidentiality concerns) and to provide such information as to the applicable matter as can be conveyed. Any information disclosed pursuant to this Section 4.2 shall be governed by Section 4.7.

4.3.           Other Cooperation.  EMC and EIS International will comply fully with all notification, reporting and other requirements under any Applicable Law or Order related to the Spin-Off. EMC and EIS International will use their commercially reasonable efforts to obtain, as soon as practicable, the authorizations that may be or become necessary for the performance of their respective obligations under this Agreement and the consummation of the Spin-Off and will cooperate fully with each other in promptly seeking to obtain such authorizations. Where the cooperation of third parties such as insurers or trustees would be necessary in order for a Party hereto to completely fulfill its obligations under this Agreement, such Party will use commercially reasonable efforts to cause such third parties to provide such cooperation, except that no Party hereto will be required to make any material expenditure in connection therewith.

4.4.           Non-Solicitation. Except for those Persons set forth on Schedule 4.4, after the Spin-Off Date until the second (2^nd) anniversary thereof, neither EIS International nor EMC shall, through its Affiliates or employment agencies acting on its behalf, solicit, recruit or hire any Persons who are employed by EMC or EIS International, respectively, without EMC or EIS International’s consent. Notwithstanding the foregoing, this prohibition does not apply to (i) general solicitations not targeted at the other Party’s employees and the soliciting, recruiting or hiring therefrom, (ii) any such persons previously terminated by the other Party and (iii) any such persons who contact the other Party on their own initiative.

4.5.           Non-Competition. After the Spin-Off Date until the fourth (4^th) anniversary thereof, neither EIS International nor any of its Subsidiaries shall directly or indirectly compete with the Business (as such term is defined in the Merger Agreement) which, for the avoidance of doubt, shall exclude the EIS Business including the “Commercial Systems” business as currently conducted by EIS; provided, that this Section 4.5 shall not (a) apply to any Person or any of its Affiliates that acquires EIS International or its assets (except with respect to EIS International itself and its Subsidiaries as of the date hereof and their respective assets, including any Confidential Information, as of the date hereof); and (b) preclude EIS International and its Subsidiaries from acquiring any business that competes with the Business, so long as the revenues of such acquired business derived from the portion of such business that directly or indirectly competes with the Business (as such term is defined in the Merger Agreement) do not exceed 10% of the total revenue of such acquired business.

4.6.           Certain Insurance Matters.  With respect to any Damages suffered by the EIS Group after the Spin-Off Date relating to, resulting from or arising out of the EIS Business prior to the Spin-Off Date for which a member of the EMC Group would be entitled to assert, or cause any other Person to assert, a claim for recovery under any policy of insurance maintained by EMC or for the benefit of the EMC Group or, with respect to time periods prior to the Spin-Off Date, the EIS Group in respect of the EIS Business, any product or service of EIS Business or any EIS Group employee, at the request of EIS International, EMC will use its commercially reasonable efforts to assert and administer, or to assist EIS International or any of its subsidiaries to assert and administer, one or more claims under such policy of insurance covering such Damage if EIS International or any of its subsidiaries is not itself entitled to assert such claim, and any recovery in respect thereof will be paid to the Party suffering such Damages; provided, however, that all of EMC’s costs and expenses incurred in connection with the foregoing, including retroactive or other premium matters, or any required deductible or retention amount, shall be paid directly by EIS International. Notwithstanding the foregoing, EMC will have the sole right to administer all such claims in any manner and take any actions as it deems fit. Following the Spin-Off Date, the EIS Group shall cease to be insured under any policy of insurance maintained by EMC or for the benefit of the EMC Group, and shall be required to replace such insurance coverage. Nothing in this Section 4.5 will affect or modify or be deemed to affect or modify in any way any Parties’ obligations under Article V of this Agreement.

4.7.           Intercompany Agreements. All Intercompany Agreements shall be terminated as of the Effective Time, except those Intercompany Agreements set forth on Schedule 4.6 hereof.

4.8.           Confidentiality.  Each of EMC and EIS International, on behalf of itself and its subsidiaries on and after the Spin-Off Date, and it and its subsidiaries’ directors, officers, employees, agents, and advisors (“Representatives”), expressly acknowledges and agrees that the records, books, data and other confidential information concerning the financial status, products, accounts, client development (including customer and prospect lists), sales activities and procedures, promotional and marketing techniques, plans and strategies, financing, research, development, technology, trade secrets, know-how, software, intellectual property and expansion plans and credit and financial data concerning customers and suppliers and other information involving the other Party and known or obtained by EMC or EIS International, respectively, through the past affiliation prior to the Spin-Off are considered to be confidential and are valuable, special and unique assets of EIS International or EMC, respectively, or its subsidiaries, and are essential to preserve the goodwill and going business value of EIS International and EMC, respectively. Each of EMC and EIS International, further agrees that all knowledge and information of the other Party described in the preceding sentence that is confidential, proprietary and/or not in the public domain shall be considered confidential information of the other Party (as applicable, the “Confidential Information”). In recognition of the foregoing, each Party hereby agrees that it will not, and shall cause its Representatives not to: (x) disclose, or cause to be disclosed, any of the Confidential Information to any person or entity for any reason or purpose whatsoever, except and to the extent such disclosure is required by Applicable Law (including, in the case of EMC following the Closing, any disclosure requirements of the SEC or stock exchange on which the securities of EMC or its Affiliates disclosing such information is listed or quoted) or Order (provided, that such Party shall, (i) to extent reasonably possible and legally permissible, give the other Party prompt notice of such required disclosure prior to disclosure; (ii) cooperate with the other Party in the event that it elects to contest such disclosure in its entirety or a portion thereof or seek a protective order with respect thereto; and (iii) in any event only disclose the Confidential Information, or portion thereof, specifically required (after giving effect to any order obtained pursuant to clause (ii) above); or (y) make use of any of the other Party’s Confidential Information for such Party or Representatives’ own benefit or the benefit of any person or entity under any circumstances, except to the extent otherwise permitted hereunder or to comply with Applicable Law or Order. Notwithstanding anything in this Agreement to the contrary, (i) the Tax Matters Agreement shall govern the retention of Tax-related records and the exchange of Tax-related information. For the avoidance of doubt, this Section 4.8 shall be binding on any of EIS International’s successors and assignees, or any Person or any of its Affiliates that acquires EIS International or its assets.

4.9.          D&O Insurance.  At its option, to be made on or prior to the Closing, EMC will (i) maintain in effect for a period of six years after the Spin-Off Date, if available, the policies of directors’ and officers’ liability insurance maintained by EMC with respect to directors and officers of EIS International and its subsidiaries as of the signing of the Merger Agreement (provided that EMC may substitute therefor policies of at least the same coverage and amounts containing terms and conditions which are not less advantageous to the directors and officers of EIS International and its subsidiaries as of the signing of the Merger Agreement) or (ii) obtain as of the Spin-Off Date “tail” insurance policies with a claims period of six years from the Spin-Off Date with at least the same coverage and amounts and containing terms and conditions which are no less advantageous to the directors and officers of EIS International and its subsidiaries as those policies in place as of the signing of the Merger Agreement, in each case, with respect to claims arising out of or relating to events which occurred before or at the Spin-Off Date; provided, however, that in no event will EMC be required to expend an annual premium for such coverage in excess of 125% of the last annual premium paid by it for such insurance prior to the date of this Agreement (the “Maximum Premium”). If such insurance coverage can only be obtained at an annual premium in excess of the Maximum Premium, EMC will obtain that amount of directors’ and officers’ insurance (or “tail” coverage) obtainable at the actual amount of the annual premium. All costs and expenses of such directors’ and officers’ liability insurance shall be borne by EIS International.

4.10.        EIS Virginia Lease. EIS will use its commercially reasonable efforts to procure that EMC is released from that certain guaranty provided by EMC in respect of the EIS Virginia Lease (the “Virginia Lease Guaranty”), including, if requested, providing a substitute guaranty from EIS to the landlord under the EIS Virginia Lease on the same terms and conditions as the existing Virginia Lease Guaranty and, in any event, will indemnify EMC pursuant to the terms of this Agreement for any Damages suffered by EMC as a result of or in connection with the Virginia Lease Guaranty.

4.11.        Wrong Pockets.

(a)            If, following the Effective Time, any member of the EIS Group or the EMC Group identifies an asset that should have been (but was not) transferred to the EMC Group in connection with the Restructuring Transactions because such asset is primarily or exclusive related to the Plumbing Business, then such Party shall notify the other Party in writing and, following such notice, each of EIS International and EMC shall cooperate and work together in good faith to ensure that, as promptly as reasonably practicable, such asset is transferred to the appropriate member of the EMC Group.

(b)           If, following the Effective Time, any member of the EIS Group or the EMC Group identifies any liability that should have been retained, transferred to or assumed by the EIS Group in connection with the Restructuring Transactions because such liability arises from or relates primarily or exclusively to the EIS Business, then such Party shall notify the other Party in writing and, following such notice, the Parties shall cooperate and work together in good faith to ensure that, as promptly as reasonably practicable, such liability is transferred to and assumed by the appropriate member of the EIS Group.

(c)            Notwithstanding anything to the contrary contained in this Agreement, if EIS International and EMC do not agree as to whether an asset identified in accordance with Section 4.10(a) or Section 4.10(b) relates primarily or exclusively to the Plumbing Business, then such disagreement shall be resolved by dispute resolution pursuant to Sections 6.8 and 6.9 and, unless and until such disagreement is fully and finally resolved neither Section 4.10(a) nor Section 4.10(b) shall apply.

4.12.        Minimum Liquidity. After the Spin-Off Date until the second (2^nd) anniversary of the Closing Date (as defined in the Merger Agreement), EIS International shall at all times maintain at least $5,000,000 in liquid assets comprised of marketable securities, cash or cash equivalents (excluding retirement accounts and personal and corporate lines of credit), each as reasonably determined by EMC. If EIS International or any of its successors or assignees consolidates with or merges into any other Person and is not the continuing or surviving corporation or entity of such consolidation or merger, then proper provision shall be made so that the successors and assignees of EIS International assume the obligations of EIS International set forth in this Section 4.12.

4.13.        Release. Effective as of the Spin-Off Date, except for any rights or obligations expressly set forth in this Agreement, the other Spin-Off Documents, as applicable and the Merger Agreement, EIS International, on behalf of itself, each of its stockholders and each of its and their Affiliates (collectively, the “EIS Releasing Parties”), hereby irrevocably and unconditionally (i) releases and forever discharges EMC, its Affiliates and each of their respective current and former officers, directors, employees, limited and general partners, members, advisors, successors, permitted assigns, estates, heirs, executors and administrators (collectively, the “EMC Released Parties”) of and from any and all Actions, executions, judgments, duties, debts, dues, accounts, bonds, Contracts and covenants (whether express or implied), and demands whatsoever, whether known or unknown, whether liquidated or unliquidated, whether actual or contingent, whether at law or in equity, whether in Contract, tort, statute or otherwise, which the EIS Releasing Parties have or may have against any of the EMC Released Parties, previously, now or in the future, in each case, in respect of any actual or alleged fact, circumstance, action or omission occurring or arising on or prior to the Spin-Off Date (the foregoing, collectively, “EIS Released Claims”) and (ii) covenants and agrees that it shall not bring, initiate or support, directly or indirectly, any EIS Released Claim; provided that the foregoing shall not release any Person for any acts of fraud or any illegal conduct.

ARTICLE V

Indemnification

5.1           Indemnity by EMC.  Following the Spin-Off Date, EMC will, on behalf of its successors and assigns, indemnify, defend and hold EIS International, its Subsidiaries, its and their Representatives and each of their respective successors and assigns harmless from and against and will promptly defend such parties from and reimburse such parties for, any and all losses, damages, costs, expenses, Liabilities, obligations and claims of any kind, including attorneys’ fees and other costs and expenses (“Damages”) which such parties may directly or indirectly at any time suffer or incur or become subject to, as a result or arising out of or in connection with (a) the failure by EMC to perform any covenant to be performed by it or a member of the EMC Group under this Agreement in whole or in part after the Closing, and (b) the conduct of any business of the EMC Group (other than, for the avoidance of doubt, the EIS Business), including any indemnity or Liability thereof or any amount due or to become due in respect of the foregoing.

5.2           Indemnity by EIS International.  Following the Spin-Off Date, EIS International will, on behalf of its successors and assigns, indemnify, defend and hold EMC, its Subsidiaries, its and their Representatives and each of their respective successor and assigns (“EMC Indemnified Parties”) harmless from and against, and will promptly defend such parties from and reimburse such parties for, any and all Damages which such parties may directly or indirectly at any time suffer or incur or become subject to, as a result or arising out of or in connection with (a) the Spin-Off Transactions, (b) the Transferred Assets and Assumed Liabilities (as such terms are defined in the Asset Transfer Agreements) (c) any breach by EIS International of any representation in this Agreement or any Ancillary Agreement, (d) the failure by EIS International to perform any covenant to be performed by it or a member of the EIS Group under this Agreement or any Ancillary Agreement in whole or in part on or after the date hereof, (e) the operation, management or condition of, or any event, matter or circumstance that occurs, exists, or relates to the ownership or operation of, the EIS Business, whether arising before or after the Spin-Off Date and (f) any misrepresentation or breach of warranty or Contract made by EMC or any other member of the EMC Group contained in any Contract with respect to the EIS Business. For the avoidance of doubt, following the Spin-Off, no EMC Indemnified Party will be liable for, and EIS International will indemnify, defend and fully protect each EMC Indemnified Party from and against any action or failure to take action by EIS International, any other member of the EIS Group or any of their respective directors, officers, employees, agents or Representatives in their capacities as such whether prior to or on the Spin-Off Date, including any transaction based in whole or in part on the Spin-Off. If EIS International or any of its successors or assignees consolidates with or merges into any other Person and is not the continuing or surviving corporation or entity of such consolidation or merger, then proper provision shall be made so that the successors and assignees of EIS International assume the obligations of EIS International set forth in this Section 5.2.