Check the appropriate box below if the Form
8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
Indicate by check mark
whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter)
or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
If an emerging growth
company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or
revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ¨
Item 1.02
|
Termination of a Material Definitive Agreement
|
On July 5, 2021, the Company
notified Middleby that it had received a proposal from Ali containing the Merger Agreement described above and that the Company Board
had concluded that such proposal constituted a Company Superior Proposal (as defined in the Middleby Merger Agreement) and that, subject
to Middleby’s right to negotiate with the Company during the five business day period after Middleby’s receipt of such notice,
the Company Board intended to terminate the Middleby Merger Agreement and enter into a definitive agreement with Ali. On July 13, 2021,
Middleby delivered a notice to the Company waiving its rights to renegotiate the Middleby Merger Agreement with the Company subject to
the Company’s compliance with the Middleby Merger Agreement.
On July 14, 2021, in
connection with the termination by the Company of the Middleby Merger Agreement, Ali, on behalf of the Company, paid Middleby a
termination fee of $110 million as required by the terms of the Middleby Merger Agreement, and the Middleby Merger Agreement was
terminated. Ali’s payment of such termination fee is in addition to the Merger Consideration to be paid by Ali pursuant to the
Merger Agreement. Accordingly, the Company withdraws the previously filed and mailed joint proxy statement/prospectus with respect
to the Middleby Merger Agreement.
On July 14, 2021, the Company
and Ali jointly issued a press release in connection with the Merger. A copy of the press release is attached hereto as Exhibit 99.1 and
is incorporated by reference herein.
Item 9.01.
|
Financial Statements and Exhibits.
|
(d) Exhibit
*
Schedules and exhibits have been omitted pursuant to Item 601(b)(2) of Regulation S-K. The Company hereby undertakes to furnish supplemental
copies of any of the omitted schedules and exhibits upon request by the U.S. Securities and Exchange Commission.
Forward-Looking Statements
This document contains forward-looking statements within the meaning
of Section 27A of the Securities Act of 1933, as amended (the “Securities Act”), and Section 21E of the Exchange Act.
Such forward-looking statements, including those regarding the timing and consummation of the Merger, involve risks and uncertainties,
including, but are not limited to, the following factors: the risk that the conditions to the closing of the Merger are not satisfied,
including the risk that required approvals of Merger from the stockholders of the Company or from regulators are not obtained; litigation
relating to any transaction; and uncertainties as to the timing of the consummation of the Merger and the ability of the parties to consummate
the Merger. Other factors that might cause such a difference include those discussed in the Company’s filings with the Securities
and Exchange Commission (the “SEC”), which include its Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q
and Current Reports on Form 8-K, and in the proxy statement to be filed in connection with the Merger. For more information, see the section
entitled “Risk Factors” and the forward-looking statements disclosure contained in the Company’s Annual Reports on Form
10-K and in other filings. The forward-looking statements included in this communication are made only as of the date hereof and, except
as required by federal securities laws and rules and regulations of the SEC, The Company undertakes no obligation to publicly update or
revise any forward-looking statements, whether as a result of new information, future events or otherwise.
Additional Information about the Merger and Where to Find It
In connection with the Merger, the Company will prepare a proxy statement
to be filed with the SEC. When completed, a definitive proxy statement and a form of proxy will be mailed to the stockholders of the Company.
THE COMPANY’S STOCKHOLDERS ARE URGED TO READ THE PROXY STATEMENT REGARDING THE PROPOSED MERGER CAREFULLY AND IN ITS ENTIRETY BECAUSE
IT WILL CONTAIN IMPORTANT INFORMATION. Company stockholders will be able to obtain, without charge, a copy of the proxy statement (when
available) and other relevant documents filed with the SEC from the SEC’s website at www.sec.gov. Copies of the documents
filed with the SEC by the Company will be available free of charge on the Company’s website at www.welbilt.com or by contacting
the Company’s Investor Relations Department by email at richard.sheffer@welbilt.com or by phone at (727) 853-3079.
Participants in the Solicitation
The Company and its directors and officers may be deemed to be participants
in the solicitation of proxies from the Company’s stockholders with respect to the Merger. Information about the Company’s
directors and executive officers and their ownership of the Company’s common stock is set forth in the proxy statement for the Company’s
2021 Annual Meeting of Stockholders, which was filed with the SEC on March 15, 2021. Stockholders may obtain additional information regarding
the interests of the Company and its directors and executive officers in the Merger, which may be different than those of the Company’s
stockholders generally, by reading the proxy statement and other relevant documents regarding the Merger, when filed with the SEC.
SIGNATURES
Pursuant to the requirements of the Securities
Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
|
WELBILT, INC.
|
|
|
|
|
|
|
Date: July 14, 2021
|
By:
|
/s/ Martin D. Agard
|
|
|
Martin D. Agard
|
|
|
Executive Vice President and Chief Financial Officer
|
Exhibit 2.1
AGREEMENT AND PLAN OF MERGER
By and Among
ALI HOLDING S.R.L.,
ALI GROUP NORTH AMERICA CORPORATION,
ASCEND MERGER CORP.
and
WELBILT, INC.
Dated as of July 14, 2021
TABLE OF CONTENTS
Section 1.1
|
The Merger
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2
|
Section 1.2
|
The Closing
|
2
|
Section 1.3
|
Effective Time
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2
|
Section 1.4
|
Certificate of Incorporation/Charter; Bylaws
|
2
|
Section 1.5
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Board of Directors; Officers
|
2
|
|
|
|
Article II MERGER CONSIDERATION; CONVERSION OF SECURITIES; EXCHANGE OF CERTIFICATES
|
3
|
|
|
|
Section 2.1
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Effect on Securities
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3
|
Section 2.2
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Exchange of Certificates
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4
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Section 2.3
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Company Equity Awards
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6
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Section 2.4
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Lost Certificates
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6
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Section 2.5
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Appraisal Rights
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7
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Section 2.6
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Transfers; No Further Ownership Rights
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7
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Section 2.7
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Further Action
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7
|
|
|
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Article III REPRESENTATIONS AND WARRANTIES OF THE COMPANY
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8
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Section 3.1
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Organization; Qualification
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8
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Section 3.2
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Capitalization; Subsidiaries
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8
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Section 3.3
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Authority Relative to Agreement
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10
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Section 3.4
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Vote Required
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11
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Section 3.5
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No Conflict; Required Filings and Consents
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11
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Section 3.6
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Company SEC Documents; Financial Statements
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12
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Section 3.7
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Absence of Certain Changes or Events
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14
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Section 3.8
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No Undisclosed Liabilities
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15
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Section 3.9
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Litigation
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15
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Section 3.10
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Permits; Compliance with Laws
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15
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Section 3.11
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Information Supplied
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16
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Section 3.12
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Employee Benefit Plans; Labor
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16
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Section 3.13
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Taxes
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20
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Section 3.14
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Material Contracts
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22
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Section 3.15
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Related Party Transactions
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24
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Section 3.16
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Intellectual Property
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24
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Section 3.17
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Information Technology; Data Privacy
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25
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Section 3.18
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Real and Personal Property
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26
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Section 3.19
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Environmental
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27
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Section 3.20
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Customers and Suppliers
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28
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Section 3.21
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Products
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28
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Section 3.22
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Foreign Corrupt Practices Act; Anti-Corruption
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29
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Section 3.23
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Customs and International Trade Laws
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30
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Section 3.24
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Insurance
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30
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Section 3.25
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Takeover Statutes
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31
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Section 3.26
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Brokers
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31
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Section 3.27
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Opinion of Financial Advisor
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31
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Section 3.28
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Termination of Middleby Agreement
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31
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Section 3.29
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No Other Representations or Warranties
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31
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Article
IV REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB
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32
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Section 4.1
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Organization; Qualification
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32
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Section 4.2
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Authority Relative to Agreement
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32
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Section 4.3
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No Conflict; Required Filings and Consents
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33
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Section 4.4
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Litigation
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34
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Section 4.5
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Information Supplied
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34
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Section 4.6
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Merger Sub
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34
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Section 4.7
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Brokers
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34
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Section 4.8
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Share Ownership
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34
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Section 4.9
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Debt Financing
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35
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Section 4.10
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No Other Representations or Warranties
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36
|
|
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Article V COVENANTS AND AGREEMENTS
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36
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Section 5.1
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Conduct of Business by the Company Pending the Merger
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36
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Section 5.2
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Preparation of the Proxy Statement; Stockholder Meeting
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41
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Section 5.3
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Appropriate Action; Consents; Filings
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42
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Section 5.4
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Access to Information; Confidentiality
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44
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Section 5.5
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No Solicitation by the Company
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45
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Section 5.6
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Directors’ and Officers’ Indemnification and Insurance
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48
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Section 5.7
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Notification of Certain Matters
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50
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Section 5.8
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Public Disclosure
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50
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Section 5.9
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Employee Matters
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51
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Section 5.10
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Section 16 Matters
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53
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Section 5.11
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Repayment, Termination and Defeasance of Existing Indebtedness
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53
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Section 5.12
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Parent’s Financing Activities
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54
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Section 5.13
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Stock Exchange Delisting; Deregistration
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57
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Section 5.14
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Takeover Laws
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57
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Section 5.15
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Stockholder Litigation
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57
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Section 5.16
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Resignations
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57
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Article VI CONDITIONS TO THE MERGER
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58
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Section 6.1
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Conditions to the Obligations of Each Party
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58
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Section 6.2
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Conditions to Obligations of Parent and Merger Sub to Effect the Merger
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58
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Section 6.3
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Conditions to Obligation of the Company to Effect the Merger
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59
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Section 6.4
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Frustration of Closing Conditions
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60
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Article VII TERMINATION, AMENDMENT AND WAIVER
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60
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Section 7.1
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Termination
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60
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Section 7.2
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Effect of Termination
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62
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Section 7.3
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Termination Fees
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62
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Section 7.4
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Parent Payment
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63
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Section 7.5
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Amendment
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64
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Section 7.6
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Extension; Waiver
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64
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|
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Article VIII GENERAL PROVISIONS
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64
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Section 8.1
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Non-Survival of Representations and Warranties
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64
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Section 8.2
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Expenses
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64
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Section 8.3
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Notices
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64
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Section 8.4
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Interpretation; Certain Definitions
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65
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Section 8.5
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Severability
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66
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Section 8.6
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Assignment
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67
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Section 8.7
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Entire Agreement
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67
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Section 8.8
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No Third-Party Beneficiaries
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67
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Section 8.9
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Governing Law
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67
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Section 8.10
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Specific Performance
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68
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Section 8.11
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Consent to Jurisdiction
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68
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Section 8.12
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Counterparts
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69
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Section 8.13
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Exculpation
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69
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Section 8.14
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Waiver of Jury Trial
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69
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|
|
|
APPENDICES AND EXHIBITS
Appendix A
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Definitions
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|
|
|
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Exhibit A
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Certificate of Incorporation
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|
INDEX
OF DEFINED TERMS
Term
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Section
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Acquiror
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Preamble
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Affiliate
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Appendix A
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Agreement
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Preamble
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Anti-Corruption Laws
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Section 3.22(a)
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Antitrust Action
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Section 5.3(d)
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Antitrust Laws
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Section 3.5(b)
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Book-Entry Shares
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Section 2.1(a)(ii)
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Business Day
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Appendix A
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Bylaws
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Section 3.1
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Canceled Shares
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Section 2.1(a)(i)
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Capitalization Date
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Section 3.2(a)
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Certificate of Incorporation
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Section 3.1
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Certificate of Merger
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Section 1.3
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Certificates
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Section 2.1(a)(ii)
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Closing
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Section 1.2
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Closing Date
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Section 1.2
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Code
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Appendix A
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Company
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Preamble
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Company 401(k) Plan
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Section 5.9(e)
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Company Acquisition Proposal
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Appendix A
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Company Adverse Recommendation Change
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Section 5.5(c)
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Term
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Section
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Company Benefit Plan
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Section 3.12(a)
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Company Board
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Recitals
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Company Common Stock
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Section 2.1(a)(i)
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Company Data
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Appendix A
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Company Director RSU
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Appendix A
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Company Disclosure Letter
|
Appendix A
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Company Equity Awards
|
Appendix A
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Company Equity Plan
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Appendix A
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Company ERISA Affiliate
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Appendix A
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Company Fundamental Representations
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Section 6.2(a)
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Company Intervening Event
|
Appendix A
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Company Material Adverse Effect
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Appendix A
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Company Material Contract
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Section 3.14(a)
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Company Option
|
Appendix A
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Company Permits
|
Section 3.10(a)
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Company Preferred Stock
|
Section 3.2(a)
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Company Product
|
Section 3.21
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Company PSU
|
Appendix A
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Company Recommendation
|
Appendix A
|
Company Related Parties
|
Section 7.3(d)
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Company Restricted Stock
|
Appendix A
|
Company RSU
|
Appendix A
|
Company SEC Documents
|
Section 3.6(a)
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Term
|
Section
|
Company Stockholder Approval
|
Section 3.4
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Company Stockholders’ Meeting
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Section 5.2(b)
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Company Superior Proposal
|
Appendix A
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Company Termination Fee
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Appendix A
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Confidentiality Agreement
|
Appendix A
|
Consent
|
Section 3.5(b)
|
Continuation Period
|
Section 5.9(a)
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Contract
|
Appendix A
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Control
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Appendix A
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Covered Employees
|
Section 5.9(a)
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COVID-19
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Appendix A
|
Customs and International Trade Authorizations
|
Appendix A
|
Customs and International Trade Laws
|
Appendix A
|
D&O Indemnified Parties
|
Section 5.6(a)
|
Debt Commitment Letter
|
Section 4.9(a)
|
Debt Financing
|
Section 4.9(a)
|
Delaware Secretary of State
|
Appendix A
|
DGCL
|
Recitals
|
Dissenting Share
|
Section 2.5
|
Dissenting Stockholder
|
Section 2.5
|
Divestiture Action
|
Appendix A
|
EDGAR
|
Article III
|
Effective Time
|
Section 1.3
|
Term
|
Section
|
Encumbrance
|
Appendix A
|
Environmental Laws
|
Appendix A
|
ERISA
|
Appendix A
|
Exchange Act
|
Appendix A
|
Exchange Agent
|
Section 2.2(a)
|
Exchange Fund
|
Section 2.2(a)
|
Existing Credit Agreement
|
Appendix A
|
Existing Indenture
|
Appendix A
|
Financing Source
|
Section 4.9(a)
|
Financing Source Party
|
Appendix A
|
Foreign Plan
|
Appendix A
|
GAAP
|
Appendix A
|
Governmental Authority
|
Appendix A
|
Hazardous Materials
|
Appendix A
|
HSR Act
|
Appendix A
|
Indebtedness
|
Appendix A
|
Intellectual Property
|
Appendix A
|
IRS
|
Appendix A
|
Knowledge
|
Appendix A
|
Labor Agreement
|
Section 3.12(l)
|
Labor Organization
|
Section 3.12(l)
|
Law
|
Appendix A
|
Leased Real Property
|
Section 3.18(a)
|
Term
|
Section
|
Merger
|
Recitals
|
Merger Consideration
|
Section 2.1(a)(ii)
|
Merger Sub
|
Preamble
|
Middleby
|
Recitals
|
Middleby Agreement
|
Recitals
|
Middleby Confidentiality Agreement
|
Appendix A
|
Middleby Termination Fee
|
Recitals
|
NYSE
|
Appendix A
|
OFAC
|
Appendix A
|
Order
|
Appendix A
|
Owned Real Property
|
Section 3.18(a)
|
Parent
|
Preamble
|
Parent 401(k) Plan
|
Section 5.9(e)
|
Parent Benefit Plan
|
Appendix A
|
Parent Board
|
Recitals
|
Parent Disclosure Letter
|
Appendix A
|
Parent Expenses
|
Section 7.3(a)
|
Parent Fundamental Representations
|
Section 6.3(a)
|
Parent Material Adverse Effect
|
Appendix A
|
Parent Organizational Documents
|
Appendix A
|
Permitted Encumbrance
|
Appendix A
|
Person
|
Appendix A
|
Personal Data
|
Appendix A
|
Term
|
Section
|
Privacy Commitments
|
Appendix A
|
Proceedings
|
Appendix A
|
Process or Processing
|
Appendix A
|
Proxy Statement
|
Section 3.11
|
Real Property
|
Section 3.18(d)
|
Real Property Lease
|
Section 3.18(a)
|
Release
|
Appendix A
|
Representatives
|
Appendix A
|
Restraint
|
Section 6.1(c)
|
Sanctioned Country
|
Appendix A
|
Sanctioned Person
|
Appendix A
|
Sanctions
|
Appendix A
|
Sarbanes-Oxley Act
|
Appendix A
|
SEC
|
Appendix A
|
Securities Act
|
Appendix A
|
Securities Laws
|
Appendix A
|
Security
|
Appendix A
|
Software
|
Appendix A
|
Subsidiary
|
Appendix A
|
Surviving Corporation
|
Section 1.1
|
Tax or Taxes
|
Appendix A
|
Tax Returns
|
Appendix A
|
Taxes
|
Appendix A
|
Term
|
Section
|
Taxing Authority
|
Appendix A
|
Termination Date
|
Section 7.1(b)(i)
|
Top Customer
|
Section 3.20
|
Top Supplier
|
Section 3.20
|
Treasury Regulations
|
Appendix A
|
UK Defined Benefit Pension Plan
|
Section 3.12(j)
|
Voting Agreement
|
Recitals
|
THIS AGREEMENT AND
PLAN OF MERGER, dated as of July 14, 2021 (this “Agreement”), is made by and among Ali Holding S.r.l., an Italian società
a responsabilità limitata (“Parent”), Ali Group North America Corporation, a Delaware corporation and a wholly
owned Subsidiary of Parent (“Acquiror”), Ascend Merger Corp., a Delaware corporation and a direct wholly owned Subsidiary
of Acquiror (“Merger Sub”), and Welbilt, Inc., a Delaware corporation (the “Company”). Defined terms
used in this Agreement have the respective meanings ascribed to them herein.
W I T N E S S E T H:
WHEREAS, the respective
boards of directors of Parent, Acquiror, Merger Sub and the Company have unanimously approved the acquisition of the Company by Acquiror
upon the terms and subject to the conditions and limitations set forth in this Agreement;
WHEREAS, the respective
boards of directors of the Company (the “Company Board”), Acquiror, Parent (the “Parent Board”)
and Merger Sub have unanimously approved and declared advisable this Agreement and the transactions contemplated by this Agreement, including
the merger of Merger Sub with and into the Company, with the Company surviving as an indirect wholly owned Subsidiary of Parent (the “Merger”),
upon the terms and subject to the conditions and limitations set forth in this Agreement and in accordance with the General Corporation
Law of the State of Delaware (the “DGCL”);
WHEREAS, the Company
Board has, subject to Section 5.5, unanimously resolved to recommend that the Company’s stockholders adopt this Agreement;
WHEREAS, that certain
Agreement and Plan of Merger, dated April 20, 2021 (the “Middleby Agreement”), by and among The Middleby Corporation
(“Middleby”), Middleby Marshall Inc., Mosaic Merger Sub, Inc., and the Company, has been validly terminated in accordance
with its terms prior to the execution and delivery of this Agreement by the Company;
WHEREAS concurrently
with and as a condition to the effectiveness of such termination of the Middleby Agreement, the termination fee in the amount of $110,000,000
has been paid to Middleby by wire transfer of immediately available funds (the “Middleby Termination Fee”) in accordance
with the terms of the Middleby Agreement, in full satisfaction of all of the Company’s remaining obligations under the Middleby
Agreement;
WHEREAS, Acquiror,
as the sole stockholder of Merger Sub, has approved this Agreement and the transactions contemplated hereby, including the Merger;
WHEREAS, as an inducement
to Parent, Acquiror and Merger Sub to enter into this Agreement, concurrently with the execution and delivery of this Agreement, certain
stockholders of the Company have entered into a voting and support agreement (the “Voting Agreement”); and
WHEREAS, each of
Parent, Merger Sub and the Company desire to make certain representations, warranties, covenants and agreements in connection with the
Merger and also to prescribe various conditions to the Merger.
NOW, THEREFORE,
in consideration of the foregoing and the representations, warranties and covenants and subject to the conditions herein contained, and
intending to be legally bound hereby, the parties hereto hereby agree as follows:
Article
I
THE MERGER
Section 1.1
The Merger. Upon the terms and subject to the conditions of this Agreement, and in accordance with the DGCL, at the Effective
Time, Merger Sub shall be merged with and into the Company, whereupon the separate existence of Merger Sub shall cease, and the Company
shall continue as the surviving corporation of the Merger and an indirect wholly owned Subsidiary of Parent (the “Surviving Corporation”).
Section 1.2
The Closing. Subject to the provisions of Article VI, the closing of the Merger (the “Closing”)
shall take place at 10:00 a.m. (local time) on a date to be specified by the parties hereto, but no later than the third (3rd) Business
Day after the satisfaction or waiver of the conditions set forth in Article VI (other than those conditions that by their terms
are to be satisfied at the Closing, but subject to the satisfaction or waiver of such conditions), unless another time, date or place
is agreed to in writing by the parties hereto (such date being the “Closing Date”). The Closing shall take place remotely
by the e-mail exchange of signatures.
Section 1.3
Effective Time. Concurrently with the Closing, the Company shall cause a certificate of merger with respect to the Merger
(the “Certificate of Merger”) to be executed and filed with the Delaware Secretary of State as provided under the DGCL.
The Merger shall become effective at the time the Certificate of Merger has been duly filed with the Delaware Secretary of State or at
such other date and time as is agreed between Parent and the Company and specified in the Certificate of Merger (such date and time being
hereinafter referred to as the “Effective Time”). The Merger shall have the effects set forth in this Agreement and
the applicable provisions of the DGCL.
Section 1.4
Certificate of Incorporation/Charter; Bylaws.
(a)
The certificate of incorporation of Merger Sub, as in effect immediately prior to the Effective Time, shall be amended in its entirety
as set forth in Exhibit A hereto and, as so amended, shall be the certificate of incorporation of the Surviving Corporation, until
thereafter amended as provided by Law and such certificate of incorporation.
(b)
The bylaws of Merger Sub, as in effect immediately prior to the Effective Time, shall be the bylaws of the Surviving Corporation,
except as to the name of the Surviving Corporation, which shall be “Welbilt, Inc.,” until thereafter amended as provided by
Law, the certificate of incorporation of the Surviving Corporation and such bylaws.
Section
1.5 Board
of Directors; Officers. The members of the board of directors of Merger Sub immediately prior to the Effective Time shall, from
and after the Effective Time, be the members of the board of directors of the Surviving Corporation, and the officers of Merger Sub
immediately prior to the Effective Time shall, from and after the Effective Time, be the officers of the Surviving Corporation, in
each case to hold office in accordance with the certificate of incorporation and bylaws of the Surviving Corporation until the
earlier of their death, resignation or removal or until their respective successors are duly elected, designated or qualified.
Article
II
MERGER CONSIDERATION; CONVERSION OF SECURITIES; EXCHANGE OF CERTIFICATES
Section 2.1
Effect on Securities.
(a)
Effect of Merger. At the Effective Time, by virtue of the Merger and without any action on the part of the Company, Parent,
Merger Sub or the holders of any securities of the Company or Merger Sub:
(i)
Cancellation of Company Securities. Each share of common stock, par value $0.01 per share, of the Company (the “Company
Common Stock”) held by the Company as treasury stock or held, directly or indirectly, by Parent or Merger Sub immediately prior
to the Effective Time shall automatically be canceled and retired and shall cease to exist, and no consideration or payment shall be delivered
in exchange therefor or in respect thereof (such shares, “Canceled Shares”).
(ii)
Conversion of Company Securities. Each share of Company Common Stock issued and outstanding immediately prior to the Effective
Time (other than Canceled Shares) shall be converted into the right to receive, in accordance with the terms of this Agreement, $24.00
per share in cash (the “Merger Consideration”). Each share of Company Common Stock to be converted into the right to
receive the per share Merger Consideration as provided in this Section 2.1(a)(ii) shall no longer be outstanding and shall be automatically
canceled and shall cease to exist, and the holders of certificates (the “Certificates”) or book-entry shares (“Book-Entry
Shares”), which immediately prior to the Effective Time represented such Company Common Stock, shall cease to have any rights
with respect to such Company Common Stock other than the right to receive, upon surrender of such Certificates or Book-Entry Shares in
accordance with Section 2.2, the Merger Consideration.
(iii)
Conversion of Merger Sub Capital Stock. Each share of common stock, par value $0.01 per share, of Merger Sub issued and
outstanding immediately prior to the Effective Time shall be converted into and become one (1) fully paid share of common stock, par value
$0.01 per share, of the Surviving Corporation and constitute the only outstanding shares of capital stock of the Surviving Corporation.
(b) Adjustments. Without limiting the other provisions of this Agreement, if at any time during the period between the date of this Agreement
and the Effective Time, any change in the number or type of outstanding shares of Company Common Stock shall occur as a result of a reclassification,
recapitalization, exchange, stock split (including a reverse stock split) or combination or readjustment of shares or any stock dividend
or stock distribution with a record date during such period, the per share Merger
Consideration and any other similarly dependent items, as the case may be, shall be appropriately adjusted to provide the same economic
effect as contemplated by this Agreement prior to such event. Nothing in this Section 2.1(b) shall be construed to permit any party
to take any action that is otherwise prohibited or restricted by any other provision of this Agreement.
Section 2.2
Exchange of Certificates.
(a)
Designation of Exchange Agent; Deposit of Exchange Fund. Prior to the Closing, Parent and the Company shall enter into a
customary exchange agent agreement with a nationally recognized financial institution designated by Parent and reasonably acceptable to
the Company (the “Exchange Agent”) for the payment of the Merger Consideration as provided in Section 2.1(a)(ii).
At or prior to the Effective Time, Parent shall deposit or cause to be deposited with the Exchange Agent, for exchange in accordance with
this Article II through the Exchange Agent, such amount of cash sufficient for payment of the aggregate per share Merger Consideration
in exchange for outstanding shares of Company Common Stock that have been converted into the right to receive the Merger Consideration
pursuant to Section 2.1(a)(ii) (such cash, the “Exchange Fund”). The Exchange Fund shall not be used for any
purpose other than to fund payments pursuant to Section 2.1, except as expressly provided for in this Agreement.
(b)
As promptly as practicable following the Effective Time, Parent shall cause the Exchange Agent to mail to each holder of record
of a Certificate that immediately prior to the Effective Time represented outstanding shares of Company Common Stock that have been converted
into the right to receive the Merger Consideration pursuant to Section 2.1(a)(ii) (i) a letter of transmittal (which shall specify
that delivery shall be effected, and risk of loss and title to the Certificates shall pass only upon proper delivery of the Certificates
(or affidavits of loss in lieu thereof) to the Exchange Agent, and which shall be in the form and have such other provisions as Parent
and the Company may reasonably specify) and (ii) instructions (which instructions shall be in the form and have such other provisions
as Parent and the Company may reasonably specify) for use in effecting the surrender of the Certificates in exchange for the Merger Consideration.
Upon surrender of a Certificate (or affidavit of loss in lieu thereof) for cancellation to the Exchange Agent, together with a letter
of transmittal duly completed and validly executed in accordance with the instructions thereto, and such other documents as may be required
pursuant to such instructions, the holder of such Certificate shall be entitled to receive in exchange therefor, and Parent shall cause
the Exchange Agent to pay and deliver in exchange therefor as promptly as reasonably practicable, the applicable Merger Consideration,
and the Certificate (or affidavit of loss in lieu thereof) so surrendered shall be forthwith canceled. Until surrendered as contemplated
by this Section 2.2(b), each Certificate (or affidavit of loss in lieu thereof) shall be deemed, from and after the Effective Time,
to represent only the right to receive the Merger Consideration as contemplated by this Section 2.2(b). The Exchange Agent shall
accept such Certificates (or affidavits of loss in lieu thereof) upon compliance with such reasonable terms and conditions as the Exchange
Agent may impose to effect an orderly exchange thereof in accordance with normal exchange practices.
(c) As
promptly as practicable following the Effective Time, the Exchange Agent shall issue and deliver to each holder of Book-Entry Shares
that immediately prior to the Effective Time represented shares of Company Common Stock that have been converted into the right to
receive the Merger Consideration pursuant to Section 2.1(a)(ii), the Merger Consideration, and the Book-Entry Shares so
surrendered shall be canceled, without such holder being required to deliver a Certificate or any letter of transmittal,
“agent’s message” or other documents to the Exchange Agent.
(d)
No interest shall be paid or accrued for the benefit of holders of the Certificates or Book-Entry Shares on the cash payable upon
the surrender of the Certificates or Book-Entry Shares.
(e)
In the event of a transfer of ownership of Company Common Stock that is not registered in the transfer records of the Company,
payment of the appropriate amount of Merger Consideration may be made to a Person other than the Person in whose name the Certificate
or Book-Entry Share so surrendered is registered, if such Certificate shall be properly endorsed or otherwise be in proper form for transfer
(and accompanied by all documents reasonably required by the Exchange Agent) or such Book-Entry Share shall be properly transferred and
the Person requesting such payment shall pay any transfer or other Taxes required by reason of the payment to a Person other than the
registered holder of such Certificate or Book-Entry Share or establish to the satisfaction of Parent that such Tax has been paid or is
not applicable.
(f)
Termination of Exchange Fund. Any portion of the Exchange Fund which remains undistributed to the holders of the Certificates
or Book-Entry Shares for one (1) year after the Effective Time shall be delivered to Parent or its designee upon demand, and any such
holders prior to the Merger who have not theretofore complied with this Article II shall thereafter look only to Parent as general
creditor thereof for payment of their claims for Merger Consideration.
(g)
No Liability. None of Parent, Merger Sub, the Company or the Exchange Agent shall be liable to any Person in respect of
any cash held in the Exchange Fund delivered to a Governmental Authority pursuant to any applicable abandoned property, escheat or similar
Law. If any Certificate or Book-Entry Share shall not have been surrendered immediately prior to the date on which any Merger Consideration
in respect of such Certificate or Book-Entry Share would otherwise escheat to or become the property of any Governmental Authority, any
such Merger Consideration in respect of such Certificate or Book-Entry Share shall, to the extent permitted by applicable Law, become
the property of Parent free and clear of all claims or interest of any Person previously entitled thereto.
(h)
Investment of Exchange Fund. The Exchange Agent shall invest any cash included in the Exchange Fund as directed by Parent;
provided that no such investment shall relieve Parent or the Exchange Agent from making the payments required by this Article
II, and following any losses Parent shall promptly provide additional funds to the Exchange Agent for the benefit of the holders of
Company Common Stock in the amount of such losses. Any interest or income produced by such investments will be payable to Parent or its
designee as directed by Parent.
(i) Withholding.
Parent and the Exchange Agent shall be entitled to deduct and withhold from the Merger Consideration and any amounts otherwise
payable pursuant to this Agreement to any former holder of Company Common Stock or holder of Company Equity Awards such amounts as
Parent or the Exchange Agent are required to deduct and withhold with respect to the making of such payment under the Code or any
provision of applicable Tax Law. Any amounts so withheld shall be treated for all purposes of this Agreement as having been paid to
the Person in respect of which such deduction and withholding was made by Parent or the Exchange Agent.
Section 2.3
Company Equity Awards.
(a)
Treatment of Company Stock Options. As of the Effective Time, each Company Option that is then outstanding but not yet exercised,
whether vested or unvested, shall, by virtue of the Merger, automatically cease to be outstanding and shall be converted into and exchanged
for the right to receive, in accordance with the terms of this Agreement, an amount in cash equal to the per share Merger Consideration
less the exercise price per share of Company Common Stock of the Company Option, subject to withholding pursuant to Section 2.2(i).
(b)
Treatment of Company Restricted Stock. As of the Effective Time, each award of Company Restricted Stock that is outstanding
immediately prior to the Effective Time shall, by virtue of the Merger, automatically be vested and converted into the right to receive,
in accordance with the terms of this Agreement, an amount in cash equal to the per share Merger Consideration, subject to withholding
pursuant to Section 2.2(i).
(c)
Treatment of Company RSUs. As of the Effective Time, each Company RSU and each Company Director RSU that is outstanding
immediately prior to the Effective Time shall, by virtue of the Merger, automatically be vested and be converted into the right to receive,
in accordance with the terms of this Agreement, an amount in cash equal to the per share Merger Consideration, subject to withholding
pursuant to Section 2.2(i).
(d)
Treatment of Company PSUs. As of the Effective Time, each Company PSU that is outstanding immediately prior to the Effective
Time shall, by virtue of the Merger, automatically be converted into the right to receive, in accordance with the terms of this Agreement,
an amount in cash equal to the product of (i) the per share Merger Consideration, and (ii) the number of shares of Company Common Stock
earned pursuant to the Company PSU assuming the maximum level of performance is achieved, subject to withholding pursuant to Section
2.2(i).
(e)
Actions Necessary. Prior to the Effective Time, the Company shall take any and all actions necessary to effectuate the treatment
of Company Equity Awards set forth in this Section 2.3 and ensure that (i) the amounts payable under this Section 2.3 represent
the exclusive consideration due to the holders of the Company Equity Awards, and (ii) no Company Equity Awards will remain outstanding
following the Effective Time.
Section 2.4
Lost Certificates. If any Certificate shall have been lost, stolen or destroyed, then upon the making of an affidavit of
that fact by the Person claiming such Certificate to be lost, stolen or destroyed and, if required by Parent, the posting by such Person
of a bond, in such reasonable amount as Parent may direct, as indemnity against any claim that may be made against it with respect to
such Certificate, the Exchange Agent will issue in exchange for such lost, stolen or destroyed Certificate the Merger Consideration to
which the holder thereof is entitled pursuant to this Article II.
Section 2.5
Appraisal Rights. Notwithstanding anything in this Agreement to the contrary and to the extent available under Section
262 of the DGCL, any share of Company Common Stock that is issued and outstanding immediately prior to the Effective Time and that is
held by a stockholder who did not consent to or vote (by a valid and enforceable proxy or otherwise) in favor of the approval of this
Agreement, which stockholder complies with all of the provisions of the DGCL relevant to the exercise and perfection of dissenters’
rights (such share being a “Dissenting Share,” and such stockholder being a “Dissenting Stockholder”),
shall not be converted into the right to receive the Merger Consideration to which the holder of such share would be entitled pursuant
to Section 2.1(a)(ii) but rather shall be converted into the right to receive such consideration as may be determined to be due
with respect to such Dissenting Share pursuant to Section 262 of the DGCL. If any Dissenting Stockholder fails to perfect such stockholder’s
dissenters’ rights under the DGCL or effectively withdraws or otherwise loses such rights with respect to any Dissenting Shares,
such Dissenting Shares shall thereupon automatically be converted into the right to receive the consideration referred to in Section
2.1(a)(ii), pursuant to the exchange procedures set forth in Section 2.2. Notwithstanding anything to the contrary contained
in this Agreement, if the Merger is rescinded or abandoned, then the right of a Dissenting Stockholder to be paid the fair value of such
holder’s Dissenting Shares pursuant to Section 262 of the DGCL shall cease. The Company shall give Parent (a) notice of any demand
for payment of the fair value of any shares of Company Common Stock or any attempted withdrawal of any such demand for payment and any
other instrument served pursuant to the DGCL and received by the Company relating to any stockholder’s dissenters’ rights
and (b) the opportunity to participate in all negotiations and proceedings with respect to any such demands for payment under the DGCL.
The Company shall not voluntarily make any payment with respect to any demand for appraisal with respect to any Dissenting Shares without
the prior written consent of Parent (which consent shall not be unreasonably conditioned, withheld or delayed).
Section 2.6
Transfers; No Further Ownership Rights. After the Effective Time, there shall be no registration of transfers on the stock
transfer books of the Company of shares of Company Common Stock that were outstanding immediately prior to the Effective Time. If Certificates
or Book-Entry Shares are presented to the Surviving Corporation, Parent or the Exchange Agent for transfer following the Effective Time,
they shall be canceled against delivery of the applicable Merger Consideration, as provided for in Section 2.1(a)(ii), for each
share of Company Common Stock formerly represented by such Certificates or Book-Entry Shares.
Section 2.7
Further Action. If, at any time after the Effective Time any further action is determined by Parent or the Surviving Corporation
to be necessary or desirable to carry out the purposes of this Agreement or to vest the Surviving Corporation or Parent with full right,
title and possession of and to all rights and property of Merger Sub and the Company with respect to the Merger, the officers and managers
of Parent shall be fully authorized (in the name of Merger Sub, the Company, the Surviving Corporation and otherwise) to take such action.
Article
III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
Except (i) as
disclosed in the Company SEC Documents filed with (or furnished to) the SEC by the Company on or after December 31, 2019 and at
least two Business Days prior to the date of this Agreement (but in each case excluding any risk factor or similar non-specific
disclosure contained under the heading “Risk Factors” or in any “forward-looking statements” legend or any
similar non-specific, predictive, precautionary or forward-looking statements) and to the extent publicly available on the
SEC’s Electronic Data Gathering Analysis and Retrieval System (“EDGAR”) or (ii) as disclosed in the
particular section or subsection of the Company Disclosure Letter expressly referenced therein (it being understood and agreed that
any information set forth in one section or subsection of the Company Disclosure Letter also shall be deemed to apply to each other
section and subsection of this Agreement to which its applicability is reasonably apparent on its face from the text of the
disclosure), the Company hereby represents and warrants to Parent and Merger Sub as follows:
Section 3.1
Organization; Qualification. Each of the Company and its Subsidiaries is (i) a legal entity duly organized and validly existing
under the laws of the jurisdiction of its incorporation, formation or organization, as applicable, and (ii) has the requisite corporate
or similar power and authority to conduct its business as it is now being conducted and to own, lease and operate its properties and assets
in the manner in which its properties and assets are currently operated, except where the failure to be so validly existing and authorized
has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. Each of
the Company and its Subsidiaries is duly qualified or licensed to do business and is in good standing in each jurisdiction in which the
character or location of the property owned, leased or operated by it or the nature of the business conducted by it makes such qualification
or licensing necessary, except where the failure to be so duly qualified or licensed and in good standing has not had, and would not reasonably
be expected to have, individually or in the aggregate, a Company Material Adverse Effect. The Company’s Amended and Restated Certificate
of Incorporation (the “Certificate of Incorporation”) and Amended and Restated Bylaws (the “Bylaws”),
each as amended as of the date of this Agreement, have been made available to Parent and are in full force and effect, and the Company
is not in violation of any of the provisions thereof. No Subsidiary of the Company is in violation of any of the provisions of its organizational
or governing documents, except where such violation has not been, and would not reasonably be expected to be, individually or in the aggregate,
materially adverse to the Company and its Subsidiaries, taken as a whole.
Section 3.2
Capitalization; Subsidiaries.
(a) As
of the close of business on July 12, 2021 (the “Capitalization Date”), the authorized capital stock of the
Company consisted of (i) 300,000,000 shares of Company Common Stock, 142,129,965 of which were issued and outstanding and none of
which were held by the Company as treasury stock, and (ii) 3,500,000 shares of preferred stock of the Company, par value $0.01 per
share (“Company Preferred Stock”), no shares of which were outstanding. There are no other authorized classes of
capital stock of the Company and no bonds, debentures, notes or other Indebtedness of the Company having the right to vote (or
convertible into or exercisable for securities having the right to vote) on any matters on which holders of capital stock of the
Company may vote authorized, issued or outstanding. As of the close of business on the Capitalization Date, there were (A)
outstanding Company Options representing 1,727,470 shares of Company Common Stock, (B) no outstanding awards of Company Restricted
Stock representing shares of Company Common Stock; (C) outstanding Company PSUs representing 729,199 shares of Company Common Stock,
which amount may be increased to a maximum of 1,458,398 shares of Company Common Stock based on the satisfaction of performance
conditions set forth in the applicable award agreements; (D) outstanding awards of Company RSUs representing 946,328 shares of
Company Common Stock and (E) outstanding awards of Company Director RSUs representing 94,999 shares of Company Common Stock. As of
the close of business on April 19, 2021, there were 2,393,410 shares of Company Common Stock reserved for future issuance under the
Company Equity Plan. From the close of business on the Capitalization Date through the date of this Agreement, there have been no
issuances of (i) any Company Common Stock, Company Preferred Stock or any other equity or voting interests in the Company other than
issuances of shares of Company Common Stock pursuant to the exercise, vesting or settlement, as applicable, of the Company Equity
Awards outstanding as of the close of business on the Capitalization Date in accordance with the terms of such Company Equity Awards
in accordance with its terms and (ii) any Company Equity Awards or any other equity or equity-based awards.
(b)
All of the issued and outstanding shares of Company Common Stock have been, and all of the shares of Company Common Stock that
may be issued pursuant to the Company Equity Awards, the Company Equity Plan will be, when issued in accordance with the respective terms
thereof, duly authorized and validly issued and are, or will be when issued, fully paid, nonassessable and free of preemptive rights.
The Company has made available to Parent or its counsel accurate and complete copies of the Company Equity Plan and the forms of stock
option, restricted stock and restricted stock unit agreements evidencing the Company Equity Awards and, other than differences with respect
to the number of shares of Company Common Stock covered thereby, the grant date, the exercise price, regular vesting schedule and expiration
date applicable thereto, no such stock option, restricted stock or restricted stock unit agreement contains material terms that are inconsistent
with, or in addition to, such forms. Section 3.2(b) of the Company Disclosure Letter sets forth, as of the close of business on
the Capitalization Date, each outstanding Company Equity Award and to the extent applicable, the employee identification number of the
holder thereof, the number of shares of Company Common Stock subject thereto (including target and maximum numbers for Company Equity
Awards subject to performance-based vesting), the expiration date, the exercise or conversion price relating thereto, the grant date,
the vesting schedule, and whether or not it is subject to performance-based vesting. Each grant of Company Equity Awards was made in accordance
with the terms of the Company Equity Plan, the Exchange Act and all other applicable Laws, including the listing and governance rules
and regulations of the NYSE. All of the outstanding Company Common Stock has been sold pursuant to an effective registration statement
filed under the federal Securities Laws or an appropriate exemption therefrom.
(c) As
of the date of this Agreement, other than as set forth in Section 3.2(a), there are no (i) existing options, warrants, calls,
preemptive rights, subscriptions or other rights, restricted stock awards, restricted stock unit awards, convertible securities,
agreements, arrangements or commitments of any kind obligating the Company or any of its Subsidiaries to issue, transfer, register
or sell, or cause to be issued, transferred, registered or sold, any shares of capital stock of, or other equity interests in, the
Company or any of its Subsidiaries or securities convertible into or exchangeable for such shares or other equity interests, or
obligating the Company to grant, extend or enter into such options, warrants, calls, preemptive, subscriptions or other rights,
restricted stock awards, restricted stock unit awards, convertible securities, agreements, arrangements or commitments, (ii)
outstanding obligations of the Company or any of its Subsidiaries to repurchase, redeem or otherwise acquire any capital stock or
other equity interests of the Company or any of its Subsidiaries, or any securities representing the right to purchase or otherwise
receive any capital stock or other equity interests of the Company or any of its Subsidiaries, (iii) agreements with any Person to
which the Company or any of its Subsidiaries is party (A) restricting the transfer of the capital stock or other equity interests of
the Company or any of its Subsidiaries or (B) affecting the voting rights of capital stock or other equity interests of the Company
or any of its Subsidiaries (including stockholder agreements, voting trusts or similar agreements), (iv) outstanding or authorized
equity or equity-based compensation awards, including any equity appreciation rights, security-based performance units,
“phantom” stock, profit-participation or other security rights issued by the Company or any of its Subsidiaries, or
other agreements, arrangements or commitments of any character (contingent or otherwise) to which the Company or any of its
Subsidiaries is party, in each case pursuant to which any Person is entitled to receive any payment from the Company based in whole
or in part on the value of any capital stock or other equity interests of the Company or any of its Subsidiaries or (v) outstanding
obligations of the Company or any of its Subsidiaries to accelerate the vesting of any capital stock of the Company under any
provision of the Company Equity Plan.
(d)
Section 3.2(d) of the Company Disclosure Letter (i) sets forth, as of the date of this Agreement, each (x) Subsidiary of
the Company and (y) other Person whom the Company, directly or indirectly, owns any share capital, capital stock or other equity or voting
securities or other equity interests, or any securities or obligations convertible into or exchangeable or exercisable for such share
capital, capital stock, securities or interests and (ii) identifies which of the foregoing are “significant subsidiaries,”
as defined in Rule 1-02(w) of Regulation S-X promulgated by the SEC. Except as has not been, and would not reasonably be expected to be,
individually or in the aggregate, material to the Company and its Subsidiaries, taken as a whole, the Company owns, beneficially and of
record, directly or indirectly, all of the issued and outstanding company, partnership, corporate or similar (as applicable) ownership,
voting or similar interests in each of its Subsidiaries, free and clear of all Encumbrances, and all company, partnership, corporate or
similar (as applicable) ownership, voting or similar interests of each of the Subsidiaries are duly authorized and validly issued and
are fully paid, nonassessable and free of preemptive rights. Except for investments in marketable securities and cash equivalents and
except as set forth in Section 3.2(d) of the Company Disclosure Letter, neither the Company nor any of its Subsidiaries (i) owns
directly or indirectly any shares of capital stock or other equity interests, or any securities or obligations convertible into or exchangeable
or exercisable for such shares or equity interests, in any Person or (ii) has any obligation or has made any commitment to acquire any
shares of capital stock or other equity interests in any Person or to provide funds to or make any investment (in the form of a loan,
capital contribution or otherwise) in any Person.
Section 3.3
Authority Relative to Agreement.
(a) The
Company has all necessary corporate power and authority to execute, deliver and perform its obligations under this Agreement and,
subject (in the case of the Merger) to obtaining the Company Stockholder Approval, to consummate the transactions contemplated by
this Agreement. The execution, delivery and performance of this Agreement by the Company, and the consummation by the Company of the
transactions contemplated by this Agreement, have been duly and validly authorized by all necessary corporate action by the Company,
and (in the case of the Merger, except for the (i) receipt of the Company Stockholder Approval and (ii) filing of the Certificate of
Merger with the Delaware Secretary of State) no other corporate action or proceeding on the part of the Company is necessary to
authorize the execution, delivery and performance of this Agreement by the Company and the consummation by the Company of the
transactions contemplated by this Agreement. This Agreement has been duly executed and delivered by the Company and, assuming due
authorization, execution and delivery of this Agreement by the other parties hereto, constitutes a legal, valid and binding
obligation of the Company, enforceable against the Company in accordance with its terms, except that (A) such enforcement may be
subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws, now or hereafter in effect,
affecting creditors’ rights and remedies generally and (B) the remedies of specific performance and injunctive and other forms
of equitable relief may be subject to equitable defenses and to the discretion of the court before which any Proceeding therefor may
be brought.
(b)
The Company Board has, by resolutions unanimously adopted by the Company Board, (i) approved this Agreement and the transactions
contemplated by this Agreement, (ii) determined that this Agreement and the transactions contemplated by this Agreement are advisable
and in the best interests of the Company and the Company’s stockholders, (iii) directed that the adoption of this Agreement be submitted
to a vote at the Company Stockholders’ Meeting and (iv) resolved to make the Company Recommendation. As of the date of this Agreement,
none of the aforesaid actions by the Company Board has been amended, rescinded or modified.
Section 3.4
Vote Required. The adoption of this Agreement by the holders of at least a majority of the outstanding shares of Company
Common Stock entitled to vote thereon at the Company Stockholders’ Meeting (the “Company Stockholder Approval”)
is the only vote of holders of securities of the Company that is required in connection with the consummation of the transactions contemplated
by this Agreement.
Section 3.5
No Conflict; Required Filings and Consents.
(a)
Neither the execution and delivery of this Agreement by the Company nor the consummation by the Company of the transactions contemplated
by this Agreement, nor compliance by the Company with any of the terms or provisions of this Agreement, will (i) violate any provision
of the Company’s Certificate of Incorporation or Bylaws or the certificate of incorporation or bylaws (or equivalent organizational
documents) of any Subsidiary of the Company, (ii) assuming that the Consents, registrations, declarations, filings and notices referenced
in Section 3.5(b) have been obtained or made, conflict with or violate any Law applicable to the Company or any of its Subsidiaries
or by which any property or asset of the Company or any of its Subsidiaries is bound or affected or (iii) violate, conflict with or result
in any breach of any provision of, or loss of any benefit, or constitute a default (with or without notice or lapse of time, or both)
under, give rise to any right of termination, acceleration or cancellation of or require the Consent of, notice to or filing with any
third party pursuant to any of the terms or provisions of any Contract to which the Company or any of its Subsidiaries is a party, or
by which any property or asset of the Company or any of its Subsidiaries is bound or affected, or result in the creation of any Encumbrance,
other than any Permitted Encumbrance, upon any of the property or assets of the Company or any of its Subsidiaries, other than, in the
case of clauses (ii) and (iii), any such conflict, violation, breach, default, termination, acceleration, cancellation or Encumbrance
that has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.
(b)
No consent, approval, license, permit, waiver, Order or authorization (a “Consent”) of, registration, declaration
or filing with or notice to any Governmental Authority is required to be obtained or made by or with respect to the Company or any of
its Subsidiaries in connection with the execution, delivery and performance of this Agreement or the consummation of the transactions
contemplated by this Agreement, other than (i) applicable requirements of and filings with the SEC under the Exchange Act or the Securities
Act, (ii) the filing of the Certificate of Merger with the Delaware Secretary of State, (iii) applicable requirements under corporation,
securities or “blue sky” laws of various states, (iv) compliance with applicable rules and regulations of the NYSE, (v) compliance
with and filings or notifications under the HSR Act and any other applicable United States or foreign competition, antitrust, merger control
or investment Laws (together with the HSR Act, “Antitrust Laws”) and (vi) such other Consents, registrations, declarations,
filings or notices the failure of which to be obtained or made has not had, and would not reasonably be expected to have, individually
or in the aggregate, a Company Material Adverse Effect.
Section 3.6
Company SEC Documents; Financial Statements.
(a) Since
January 1, 2019, the Company has timely filed with (or furnished to) the SEC all forms, reports, schedules, statements, exhibits and
other documents (including exhibits, financial statements and schedules thereto and all other information incorporated therein and
amendments and supplements thereto) required by it to be filed (or furnished) under the Exchange Act or the Securities Act
(collectively, the “Company 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 Company SEC Document complied in all material respects with
the applicable requirements of the Exchange Act and the Securities Act, as the case may be. As of its filing date or, if amended
prior to the date of this Agreement, as of the date of the last such amendment, each Company SEC Document filed pursuant to the
Exchange Act did not contain any untrue statement of a material fact or omit to state any material fact required to be stated
therein or necessary in order to make the statements made therein, in light of the circumstances under which they were made, not
misleading. Each Company SEC Document that is a registration statement, as amended or supplemented, if applicable, filed pursuant to
the Securities Act, as of the date such registration statement or amendment became effective prior to the date of this Agreement,
did not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or
necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading. As
of the date of this Agreement, there are no amendments or modifications to the Company SEC Documents that were required to be filed
with (or furnished to) the SEC prior to the date of this Agreement, but that have not yet been filed with (or furnished to) the SEC.
No Subsidiary of the Company is subject to the periodic reporting requirements of the Exchange Act. All of the audited financial
statements and unaudited interim financial statements of the Company included in the Company SEC Documents (i) comply in all
material respects with the applicable accounting requirements and with the published rules and regulations of the SEC with respect
thereto; (ii) have been prepared in accordance with GAAP applied on a consistent basis during the periods involved (except as may be
indicated in the notes thereto and except, in the case of the unaudited interim financial statements, as may be permitted under Form
10-Q of the Exchange Act); and (iii) fairly present in all material respects the financial position, the stockholders’ equity,
the results of operations and cash flows of the Company and its consolidated Subsidiaries as of the times and for the periods
referred to therein (except as may be indicated in the notes thereto and subject, in the case of unaudited interim financial
statements, to normal and recurring year-end adjustments).
(b)
Prior to the date of this Agreement, the Company has furnished to Parent complete and correct copies of all comment letters from
the SEC since January 1, 2019 through the date of this Agreement with respect to any of the Company SEC Documents, together with all written
responses of the Company thereto, in each case, that are not publicly available on the SEC EDGAR system. As of the date of this Agreement,
there are no outstanding or unresolved comments in comment letters received from the SEC staff with respect to any of the Company SEC
Documents, and, to the Knowledge of the Company, none of the Company SEC Documents is subject to ongoing SEC review.
(c)
The Company is in compliance in all material respects with the applicable provisions of the Sarbanes-Oxley Act and the applicable
listing and governance rules and regulations of the NYSE.
(d)
The Company maintains a system of “internal control over financial reporting” (as defined in Rules 13a-15(f) and 15d-15(f)
of the Exchange Act) designed to provide reasonable assurance regarding the reliability of the Company’s financial reporting and
the preparation of financial statements for external purposes in conformity with GAAP. The Company has evaluated the effectiveness of
the Company’s internal control over financial reporting and, to the extent required by applicable Law, presented in any applicable
Company SEC Document that is a report on Form 10-K or Form 10-Q or any amendment thereto its conclusions about the effectiveness of the
internal control over financial reporting as of the end of the period covered by such report or amendment based on such evaluation. The
Company has disclosed, based on the most recent evaluation of internal control over financial reporting prior to the date of this Agreement,
to the Company’s auditors and the audit committee of the Company Board (and made available to Parent a summary of the significant
aspects of such disclosure, if any) (i) all “significant deficiencies” and “material weaknesses” (as such terms
are defined in Auditing Standard No. 5 of the Public Company Accounting Oversight Board, as in effect on the date of this Agreement) in
the design or operation of internal control over financial reporting that are reasonably likely to adversely affect the Company’s
ability to record, process, summarize and report financial information and (ii) any fraud, whether or not material, that involves senior
management or other employees who have a significant role in the Company’s internal control over financial reporting. The Company
has not identified any material weaknesses in the design or operation of the Company’s internal control over financial reporting.
(e)
The Company maintains “disclosure controls and procedures” (as defined in Rules 13a-15(e) and 15d-15(e) of the Exchange
Act) designed to ensure that all information required to be disclosed by the Company in the reports that it files or submits under the
Exchange Act is recorded, processed, summarized and reported within the time periods specified in the rules and forms of the SEC, and
that all such information is accumulated and communicated to the Company’s management as appropriate to allow timely decisions regarding
required disclosure and to make the certifications of the chief executive officer and chief financial officer of the Company required
under the Exchange Act with respect to such reports.
(f)
To the Knowledge of the Company, since January 1, 2019 through the date of this Agreement, there have been no SEC inquiries or
investigations, other governmental inquiries or investigations or internal investigations pending or threatened, in each case regarding
any accounting practices of the Company or any of its Subsidiaries or any malfeasance by any director or executive officer of the Company
or any of its Subsidiaries.
(g)
Each of the principal executive officer of the Company and the principal financial officer of the Company (or each former principal
executive officer of the Company and each former principal financial officer of the Company, 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 Company
SEC Documents, and the statements contained in such certifications are true and accurate. For purposes of this Agreement, “principal
executive officer” and “principal financial officer” shall have the meanings given to such terms in the Sarbanes-Oxley
Act. The Company does not have, and has not arranged, any outstanding “extensions of credit” to directors or executive officers
within the meaning of Section 402 of the Sarbanes-Oxley Act.
(h)
Since January 1, 2019, (i) neither the Company nor any of its Subsidiaries has received any material written, or, to the Knowledge
of the Company, oral complaint, allegation, assertion or claim regarding accounting, internal accounting controls, auditing practices,
procedures, methodologies or methods of the Company or any of its Subsidiaries, or unlawful accounting or auditing matters with respect
to the Company or any of its Subsidiaries and (ii) no attorney representing the Company or any of its Subsidiaries, whether or not employed
by the Company or any of its Subsidiaries, has reported evidence of a violation of Securities Laws, breach of fiduciary duty or similar
violation by the Company or any of its Subsidiaries or any of their respective officers, directors, employees or agents to the Company
Board or any committee thereof or to the general counsel or chief executive officer of the Company pursuant to the rules of the SEC adopted
under Section 307 of the Sarbanes-Oxley Act.
(i)
Neither the Company nor any of its Subsidiaries is a party to, or has any commitment to become a party to, any joint venture, off-balance
sheet partnership or any similar Contract (including any Contract or arrangement relating to any transaction or relationship between or
among the Company and any of its Subsidiaries, on the one hand, and any unconsolidated affiliate, on the other hand), including any structured
finance, special purpose or limited purpose entity or Person, or any “off-balance sheet arrangements” (as defined in Item
303(a) of Regulation S-K under the Securities Act), where the result, purpose or effect of such Contract is to avoid disclosure of any
material transaction involving, or material liabilities of, the Company or any of its Subsidiaries in the Company SEC Documents (including
any audited financial statements and unaudited interim financial statements of the Company included therein).
Section 3.7 Absence
of Certain Changes or Events. Since December 31, 2020 through the date of this Agreement, (a) the respective businesses of the
Company and its Subsidiaries have been conducted in the ordinary course of business consistent with past practice, except for any
reasonable and good faith actions taken or omitted to be taken, or any plans, procedures and practices adopted, solely to the extent
necessary to preserve the property and assets of the Company and its Subsidiaries or to protect the safety or health of personnel of
the Company and its Subsidiaries in connection with the COVID-19 pandemic, (b) there has not been any event, development or state of
circumstances that has had, or would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse
Effect, and (c) neither the Company nor any of its Subsidiaries has taken any action that, if it had been taken after the date of
this Agreement, would constitute a breach of any of the covenants set forth in Section 5.1(b), Section 5.1(c), Section
5.1(d), Section 5.1(k), Section 5.1(q), Section 5.1(s), Section 5.1(y) or Section 5.1(z)
(with respect to Section 5.1(z), solely as it relates to the foregoing Section 5.1(b), Section 5.1(c), Section
5.1(d), Section 5.1(k), Section 5.1(q), Section 5.1(s) and Section 5.1(y)).
Section 3.8
No Undisclosed Liabilities. Except for liabilities or obligations (a) as (and to the extent) reflected, disclosed or reserved
against in the Company’s financial statements (or the notes thereto) included in the Company’s Annual Report on Form 10-K
filed with the SEC on February 26, 2021, (b) incurred in the ordinary course of business consistent with past practice since December
31, 2020, (c) incurred in connection with the transactions contemplated hereby in compliance with the terms of this Agreement or (d) that
have not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, neither
the Company nor any of its Subsidiaries has any liabilities or obligations of any nature, whether or not accrued, contingent, absolute
or otherwise and whether or not required to be reflected in such financial statements (or the notes thereto) in accordance with GAAP.
Section 3.9
Litigation. As of the date of this Agreement, (a) there is no Proceeding pending or, to the Knowledge of the Company, threatened
against the Company or any of its Subsidiaries or any asset or property of the Company or any of its Subsidiaries, and (b) there is no
Order outstanding against, or involving, the Company or any of its Subsidiaries or any asset or property of the Company or any of its
Subsidiaries that, in each case, (i) has been, or would reasonably be expected to be, individually or in the aggregate, material to the
Company and its Subsidiaries, taken as a whole or (ii) would not reasonably be expected to, individually or in the aggregate, impair in
any material respect the ability of the Company to perform its obligations under this Agreement or to consummate the Merger, or prevent
or materially delay the consummation of any of the Merger and the other transactions contemplated by this Agreement.
Section 3.10
Permits; Compliance with Laws.
(a)
(i) The Company and its Subsidiaries are in possession of all franchises, grants, authorizations, licenses, permits, easements,
variances, exceptions, exemptions, consents, certificates, approvals, listings, registrations, clearances, orders and other authorizations
necessary for the Company and its Subsidiaries to own, lease and operate their respective properties and assets and to carry on their
respective businesses as now being conducted, under and pursuant to all applicable Laws (the “Company Permits”), (ii)
all such Company Permits are in full force and effect and (iii) as of the date of this Agreement, no suspension, cancellation, withdrawal
or revocation thereof is pending or, to the Knowledge of the Company, threatened, except where the failure to be in possession of, failure
to be in full force and effect or the suspension, cancellation, withdrawal or revocation thereof has not had, and would not reasonably
be expected to have, individually or in the aggregate, a Company Material Adverse Effect.
(b) Since
January 1, 2019, the Company and its Subsidiaries have been and are in compliance with (i) all applicable Laws and (ii) all Company
Permits, except where any failure to be in such compliance has not had, and would not reasonably be expected to have, individually
or in the aggregate, a Company Material Adverse Effect.
(c)
Since January 1, 2019 through the date of this Agreement, to the Knowledge of the Company, neither the Company nor any of its Subsidiaries
nor any of their respective directors, officers or employees has received any written or oral notification from a Governmental Authority
asserting that the Company or any of its Subsidiaries is, or is suspected of, alleged to be or under investigation for being, not in compliance
in all material respects with any Laws or Company Permits.
Section 3.11
Information Supplied. The proxy statement to be sent the stockholders of the Company relating to the Company Stockholders’
Meeting (the “Proxy Statement”) will not, at the date it, or any amendment or supplement to it, is mailed to stockholders
of the Company and at the time of the Company Stockholders’ Meeting, contain any untrue statement of a material fact or omit to
state a material fact necessary to make the statements therein, in light of the circumstances in which they are made, not misleading (except
that no representation or warranty is made by the Company regarding such portions thereof that relate expressly to Parent or any of its
Subsidiaries, including Merger Sub, or to statements made therein based on information supplied by or on behalf of Parent or Merger Sub
for inclusion or incorporation by reference therein). The Proxy Statement will comply as to form in all material respects with the requirements
of the Exchange Act.
Section 3.12
Employee Benefit Plans; Labor.
(a) Section
3.12(a) of the Company Disclosure Letter sets forth a true and complete list, as of the date of this Agreement, of (i) each
material “employee benefit plan” (as such term is defined in Section 3(3) of ERISA), whether written or unwritten, that
the Company, any of its Subsidiaries or any Company ERISA Affiliate adopted, maintains, sponsors, participates in, is a party or
contributes to or with respect to which the Company or any of its Subsidiaries could reasonably be expected to have any material
liability; and (ii) each other material employment or employee benefit plan, program, practice, policy, arrangement or agreement,
whether written or unwritten, including any equity option, equity purchase, equity appreciation right or other equity or
equity-based incentive, cash bonus or incentive compensation, employment, change in control, retention, retirement or supplemental
retirement, deferred compensation, profit-sharing, unemployment, severance, termination pay, welfare, hospitalization or medical,
life, accidental death and dismemberment, long- or short-term disability, fringe benefit or other similar compensation or employee
benefit plan, program, practice, policy, arrangement or agreement for any current or former employee or director of, or other
individual service provider to, the Company or any of its Subsidiaries that does not constitute an “employee benefit
plan” (as defined in Section 3(3) of ERISA, whether or not ERISA applies), that the Company or any of its Subsidiaries
adopted, maintains, sponsors, participates in, is a party or contributes to, or with respect to which the Company or any of its
Subsidiaries could reasonably be expected to have any material liability (each, a “Company Benefit Plan”). With
respect to each material Company Benefit Plan, the Company has made available to Parent a true and complete copy of (i) such Company
Benefit Plan and all material amendments thereto (including a written description of the material provisions of each unwritten
Company Benefit Plan), (ii) each trust, insurance, annuity or other funding Contract, (iii) the most recent financial statements and
actuarial or other valuation reports, (iv) the three most recent annual reports on Form 5500, (v) the most recent determination
letter (or, if applicable, advisory or opinion letter) from the IRS, (vi) the most recent summary plan description and any material
modification and (vii) all material notices given to such Company Benefit Plan, the Company or any Company ERISA Affiliate by the
IRS, United States Department of Labor, Pension Benefit Guarantee Corporation or other Governmental Authority since January 1,
2019.
(b)
Except as has not been, and would reasonably be expected to be, individually or in the aggregate, material to the Company and its
Subsidiaries, taken as a whole, (i) each of the Company Benefit Plans has been established, adopted, operated, maintained and administered
in accordance with its terms and applicable Laws, including ERISA and the Code, (ii) all payments and contributions required to be made
under the terms of any Company Benefit Plan and applicable Laws have been timely made or accrued or otherwise adequately reserved to the
extent required by and in accordance with GAAP and (iii) neither the Company nor any of its Subsidiaries or, to the Knowledge of the Company,
any third party, has engaged in any non-exempt “prohibited transaction” (within the meaning of Section 4975 of the Code or
Section 406 of ERISA) with respect to any Company Benefit Plan that would result in the imposition of any liability to the Company or
any of its Subsidiaries.
(c)
Each Company Benefit Plan intended to be qualified under Section 401(a) of the Code has either received a favorable determination
letter from the IRS with respect to such Company Benefit Plan as to its qualified status under the Code, or with respect to a prototype
Company Benefit Plan, the prototype sponsor has received a favorable IRS opinion letter, or the Company Benefit Plan or prototype sponsor
has remaining a period of time under applicable Code regulations or pronouncements of the IRS in which to apply for such a letter and
make any amendments necessary to obtain a favorable determination or opinion as to the qualified status of each such Company Benefit Plan.
To the Knowledge of the Company, no event has occurred since the most recent determination or opinion letter or application therefor relating
to any such Company Benefit Plan and no condition exists that has been or would reasonably be expected to adversely affect the qualified
status of any such Company Benefit Plan or result in the imposition of any material liability, penalty or tax under ERISA or the Code.
(d) Except
as has not been, and would not reasonably be expected to be, individually or in the aggregate, material to the Company and its
Subsidiaries, taken as a whole, neither the Company nor any Company ERISA Affiliate operates, maintains, contributes to, is required
to contribute to or sponsors (or has in the past six (6) years established, operated, maintained, contributed to, was required to
contribute to or sponsored) (i) a “multiemployer plan” (as defined in Section 3(37) of ERISA), (ii) a “multiple
employer plan” (within the meaning of Section 413(c) of the Code), (iii) a “single-employer plan” (within the
meaning of Section 4001(a)(15) of ERISA), or (iv) a “multiple employer welfare arrangement” (within the meaning of
Section 3(40) of ERISA). Except as would be, or reasonably be expected to be, individually or in the aggregate, a material liability
to the Company and its Subsidiaries, taken as a whole, no Subsidiary or connected or associated Person has now or at any time
participated in, maintained or been liable to contribute to a defined benefit pension plan for the benefit or in respect of any
employee or former employee. Neither the Company nor any Company ERISA Affiliate has incurred, or reasonably expects to incur,
directly or indirectly, any material liability under Title IV of ERISA or related provisions of the Code that has not been satisfied
in full, other than liability for premiums due to the Pension Benefit Guaranty Corporation (which premiums have been paid when due)
and no condition exists that presents a material risk of incurring such liability.
(e)
Except as would not be, or would not reasonably be expected to be, individually or in the aggregate, material to the Company and
its Subsidiaries, taken as a whole, as of the date of this Agreement there are no claims pending, or, to the Knowledge of the Company,
threatened Proceedings, disputes or claims (other than routine claims for benefits) against or affecting any Company Benefit Plan, by
any employee or beneficiary covered under such Company Benefit Plan, as applicable, or otherwise involving such Company Benefit Plan.
(f)
Except as set forth on Section 3.12(f) of the Company Disclosure Letter, neither the execution or delivery of nor performance
of the Company’s obligations under this Agreement nor the consummation of the Merger will, either alone or in conjunction with any
other event (including any termination of employment upon or following the consummation of the Merger), (i) entitle any current or former
director or employee of, or individual service provider to, the Company or any of its Subsidiaries to any payment or benefit (or result
in the funding of any such payment or benefit), except as expressly provided in this Agreement, (ii) increase the amount or value of any
benefit or compensation otherwise payable or required to be provided to any such director, employee or individual service provider, (iii)
accelerate the time of payment, funding or vesting of amounts due any such director, employee or individual service provider or, except
as provided for in this Agreement, (iv) result in any “excess parachute payment” (within the meaning of Section 280G of the
Code) becoming due to any current or former employee or other individual service provider of the Company or any of its Subsidiaries or
(v) limit or restrict the right of Parent, the Surviving Corporation, the Company or any of its Subsidiaries to merge, amend or terminate
any Company Benefit Plan.
(g)
Except as has not been, and would not reasonably be expected to be, individually or in the aggregate, material to the Company and
its Subsidiaries, taken as a whole, neither the Company nor any of its Subsidiaries has any material obligations for post-termination
health, welfare or life insurance benefits under any Company Benefit Plan (other than for continuation coverage required to be provided
pursuant to Section 4980B of the Code) or coverage in which the full cost of such benefit is borne entirely by the former employee (or
such former employee’s eligible dependents or beneficiaries).
(h)
Except as has not been, and would not reasonably be expected to be, individually or in the aggregate, material to the Company and
its Subsidiaries, taken as a whole, each Company Benefit Plan that constitutes in any part a “nonqualified deferred compensation
plan” (as defined under Section 409A(d)(1) of the Code) subject to Section 409A of the Code has been operated and administered in
all material respects in operational compliance with, and is in all material respects in documentary compliance with, Section 409A of
the Code and its purpose, and no amount under any such plan, agreement or arrangement is or has been subject to the interest and additional
Tax set forth under Section 409A(a)(1)(B) of the Code.
(i)
Except as has not been, and would not reasonably be expected to be, individually or in the aggregate, material to the Company and
its Subsidiaries, taken as a whole, each Foreign Plan (i) has been established, operated, maintained and administered in compliance with
its terms and operated in compliance with all applicable Laws; (ii) if required to be registered or approved by a non-U.S. Governmental Authority, has been registered or approved and has been maintained in good standing with applicable
regulatory authorities, and, to the Knowledge of the Company, no event has occurred since the date of the most recent approval or application
therefor relating to any such Foreign 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; (iv) is fully funded or fully insured
on an ongoing and termination or solvency basis (determined using reasonable actuarial assumptions) in compliance with applicable Laws;
and (v) is not subject to any pending or, to the Knowledge of the Company, threatened claims by or on behalf of any participant in any
Foreign Plan, or otherwise involving any such Foreign Plan or the assets of any Foreign Plan, other than routine claims for benefits.
(j)
Except in respect of the Foreign Plans set forth on Section 3.12(j) of the Company Disclosure Letter or in respect of the
Berisford (1948) Pension Scheme (the “UK Defined Benefit Pension Plan”), neither the Company nor any of its Subsidiaries
has been a party to, a sponsoring employer of, or otherwise has any liability or obligation (whether current, contingent or prospective)
with respect to any Foreign Plan that is a defined benefit pension scheme, final salary scheme or their equivalent and no employee of
the Company or any of its Subsidiaries is or has ever been entitled to participate in any defined benefit pension scheme, final salary
scheme or any retirement benefit calculated by reference to age, salary or length of service or any of them.
(k)
With respect to the United Kingdom, no liability has become due by the Company or any associate or connected person within the
meaning of the UK Pensions Act 2004 (including any of the Company’s Subsidiaries) who is or was a participating employer in the
UK Defined Benefit Pension Plan under section 75 of the UK Pensions Act 1995 or otherwise, no such liability will become due as a result
of the transactions contemplated in this Agreement or in connection with the execution of this Agreement and no steps have been taken
to commence the winding up of any occupational pension scheme which directly or indirectly might have that consequence.
(l)
Except as set forth on Section 3.12(l) of the Company Disclosure Letter, neither the Company nor any of its Subsidiaries
is a party to or otherwise bound by any collective bargaining agreement, Contract or other labor-related agreement, arrangement or understanding
with a labor or trade union, or labor organization or works council (each a “Labor Agreement”), nor is any such Labor
Agreement presently being negotiated, nor, to the Knowledge of the Company, are there any employees of the Company or any of its Subsidiaries
represented by a labor or trade union, employee representative body, labor organization or works council (each a “Labor Organization”).
The Company has made available to Parent a true and complete copy of each Labor Agreement and all material amendments thereto. To the
Knowledge of the Company, there are no organizing activities, representation campaigns, certification proceedings or petitions seeking
a representation proceeding pending or threatened by or with respect to any of the employees of the Company or any of its Subsidiaries.
Since January 1, 2019, there has not been any, and there are no pending or, to the Knowledge of the Company, threatened strikes, walkouts,
lockouts, slowdowns or other labor stoppages against or affecting the Company or its Subsidiaries.
(m) The
Company and its Subsidiaries are, and since January 1, 2019 have been, in compliance with the terms of the Company Benefits Plans,
any applicable Labor Agreement and all applicable Laws respecting or relating to recruitment, employment and employment practices,
and agency and other workers, including all Laws respecting terms and conditions of employment, health and safety, wages and hours,
worker classification, child labor, immigration, employment discrimination, disability rights or benefits, equal opportunity, plant
closures and layoffs, affirmative action, workers’ compensation, labor relations, employee leave issues and unemployment
insurance, except where failure to comply has not been, and would not reasonably be expected to be, individually or in the
aggregate, material to the Company and its Subsidiaries, taken as a whole.
(n)
The Company and its Subsidiaries have been in compliance with all Laws applicable to “workers” (as defined in the English
Employment Rights Act 1996), and “contractors” or “subcontractors” (in each case, as defined by Executive Order
11246), except where failure to comply has not been, and would not reasonably be expected to be, individually or in the aggregate, material
to the Company and its Subsidiaries, taken as a whole.
(o)
Prior to the Effective Time, the Company and its Subsidiaries will have satisfied any legal or contractual requirement to provide
notice to, or to enter into any consultation procedure with, any Labor Organization which is representing any employee, in connection
with the execution of this Agreement or the transactions contemplated by this Agreement. There is no pre-signing legal or contractual
requirement to provide notice to, or to enter into any consultation procedure with, any Labor Organization which is representing any employee,
in connection with the execution of this Agreement or the transactions contemplated by this Agreement.
(p)
To the Knowledge of the Company, no employee of the Company or any of its Subsidiaries who is at the level of Vice President or
above is in any respect in violation of any term of any employment agreement, nondisclosure agreement, common law nondisclosure obligation,
fiduciary duty, non-competition agreement, restrictive covenant or other obligation (i) to the Company or its Subsidiaries or (ii) to
a former employer relating (A) to the right to be employed by the Company or its Subsidiaries or (B) to the knowledge or use of trade
secrets or proprietary information. To the Knowledge of the Company, no officer of the Company or any of its Subsidiaries has given notice
to terminate his or her employment with the Company or any of its Subsidiaries.
(q)
Neither the Company nor any of its Subsidiaries is party to a settlement agreement that has been entered into since January 1,
2019 with a current or former officer, employee or independent contractor of the Company or its Subsidiaries that involves allegations
relating to sexual or racial discrimination, harassment or other misconduct by either (i) an officer of the Company or its Subsidiaries
or (ii) an employee of the Company or its Subsidiaries at the level of Vice President or above. To the Knowledge of the Company, in the
last five (5) years, no allegations of sexual or racial discrimination, harassment or other misconduct have been made against (i) any
officer of the Company or its Subsidiaries or (ii) an employee of the Company or its Subsidiaries at the level of Vice President or above.
Section 3.13
Taxes.
(a) The
Company and each of its Subsidiaries have (i) timely filed or caused to be timely filed (taking into account any extension of time
within which to file) all material Tax Returns required to be filed by any of them, and all such filed Tax Returns (taking into
account all amendments thereto) are true, complete and accurate in all material respects and (ii) paid all material Taxes due and
owing (whether or not shown on such Tax Returns), except, in the case of clause (ii) hereof, with respect to Taxes contested in good
faith by appropriate Proceedings and for which adequate reserves or accruals have been established in accordance with GAAP.
(b)
The unpaid Taxes of the Company and its Subsidiaries did not, as of the date of their most recent consolidated financial statements
included in the Company SEC Documents prior to the date of this Agreement, materially exceed the reserve or accrual for Tax liability
(excluding any reserve for deferred Taxes established to reflect timing differences between book and Tax income) set forth on the face
of such consolidated financial statements (rather than in any notes thereto). Since the date of their most recent consolidated financial
statements, neither the Company nor any of its Subsidiaries has incurred any material liability for Taxes outside the ordinary course
of business or otherwise inconsistent with past custom and practice.
(c)
As of the date of this Agreement, there are no pending, threatened in writing or ongoing audits, examinations, investigations or
other Proceedings by any Governmental Authority in respect of material Taxes of or with respect to the Company or any of its Subsidiaries.
Neither the Company nor any of its Subsidiaries has waived any statute of limitations with respect to material Taxes or agreed to any
extension of time with respect to a material Tax assessment or deficiency. No written claim has been made by any Governmental Authority
in a jurisdiction where the Company or any of its Subsidiaries does not currently file a Tax Return that it is or may be subject to taxation
by that jurisdiction in respect of Taxes that would be covered by or the subject of such Tax Return, nor has any such assertion been threatened
or proposed in writing and received by the Company or any of its Subsidiaries.
(d)
All Taxes that the Company or any of its Subsidiaries are or were required by Law to withhold or collect have been duly and timely
withheld or collected in all material respects on behalf of its respective employees, independent contractors or other third parties and,
have been timely paid to the proper Governmental Authority or other Person or properly set aside in accounts for this purpose.
(e)
Neither the Company nor any of its Subsidiaries has ever been a member of a consolidated, combined or unitary Tax group (other
than such a group the common parent of which is the Company or any of its Subsidiaries), and neither the Company nor any of its Subsidiaries
has any liability for Taxes of any other Person (other than Taxes of the Company or any Subsidiary) under Treasury Regulation Section
1.1502-6 (or any similar provision of foreign, state or local law), as a transferee or successor, by Contract or otherwise.
(f)
Neither the Company nor any of its Subsidiaries is a party to or is bound by any Tax sharing, Tax allocation or Tax indemnification
agreement or arrangement (other than such an agreement or arrangement exclusively between or among the Company and its Subsidiaries or
customary commercial Contracts entered into in the ordinary course of business, the principle subject matter of which is not Taxes) that
will not be terminated on or before the Closing Date without any future liability to the Company or its Subsidiaries.
(g)
There are no Encumbrances for Taxes on any of the assets of the Company or any of its Subsidiaries other than Permitted Encumbrances.
(h)
Neither the Company nor any of its Subsidiaries has participated in or been a party to a transaction that, as of the date of this
Agreement, constitutes a “listed transaction” that is required to be reported to the IRS pursuant to Section 6011 of the Code
and applicable Treasury Regulations thereunder.
(i)
Within the last two (2) years, neither the Company nor any of its Subsidiaries has been a party to any transaction intended to
qualify under Section 355 of the Code.
Section 3.14
Material Contracts.
(a)
Section 3.14(a) of the Company Disclosure Letter sets forth a complete and correct list, as of the date of this Agreement,
of each Company Material Contract, a complete and correct copy of each of which has been made available to Parent. For purposes of this
Agreement, “Company Material Contract” shall mean any Contract to which the Company or any of its Subsidiaries is a
party, or to or by which any asset or property of the Company or any of its Subsidiaries is bound or affected, except for this Agreement,
that:
(i)
is a Contract with a Top Supplier;
(ii)
is a Contract with a Top Customer;
(iii)
constitutes a “material contract” (as such term is defined in item 601(b)(10) of Regulation S-K under the Securities
Act);
(iv) is
a joint venture, product development, alliance, partnership, shareholder or similar Contract that is material to the operation of the
Company and its Subsidiaries, taken as a whole;
(v) is
a management, service consulting or similar Contract that is material to the operation of the Company and its Subsidiaries, taken as
a whole;
(vi) is an agency, sales, marketing, commission, export, customs, distribution, advertising, dealer, franchise, international or domestic
sales representative or similar Contract that is material to the operation of the Company and its Subsidiaries, taken as a whole;
(vii) is
a Contract (other than those solely between or among the Company and any of its Subsidiaries) relating to Indebtedness for borrowed money
of the Company or any of its Subsidiaries (whether outstanding or as may be incurred) in an amount in excess of $15,000,000;
(viii)
is a Contract (other than those solely between or among the Company or any of its Subsidiaries) relating to material Indebtedness
of a third party owed to the Company or any of its Subsidiaries or any cash management agreement of the Company or any of its Subsidiaries;
(ix)
creates future payment obligations, including settlement agreements, outside the ordinary course of business in excess of $10,000,000,
or creates or would create any material Encumbrance (other than a Permitted Encumbrance) on any asset of the Company or its Subsidiaries,
or restricts (A) the payment of dividends or other distributions, (B) the granting of any material Encumbrance on the assets of the Company
or any of its Subsidiaries or (C) the Company or any of its Subsidiaries from guaranteeing the Indebtedness of one another;
(x)
is a Contract under which the Company or any of its Subsidiaries has granted any Person registration rights (including demand and
piggy-back registration rights);
(xi)
obligates the Company or any of its Subsidiaries to conduct any business on an exclusive basis with any third party that is material
to the Company and its Subsidiaries, taken as a whole, or upon consummation of the Merger, will obligate Parent or any of their Subsidiaries
to conduct any material business with any third party on an exclusive, requirements or “most favored nation” basis;
(xii)
is (A) a Contract between the Company or any of its Subsidiaries and (x) any Governmental Authority, (y) prime contractor (at any
tier) or (z) any subcontractor (at any tier), (B) an outstanding bid, quotation or proposal by the Company or any of its Subsidiaries
that, if accepted or awarded, could lead to the award of a Contract described in clause (A) above, or (C) an Order of a Governmental Authority
to which the Company or any of its Subsidiaries is subject;
(xiii)
is a Contract that materially limits (A) the localities in which any business of the Company and its Subsidiaries, taken as a whole,
is or is permitted to be conducted or (B) the ability of the Company or its Subsidiaries to engage in any line of business;
(xiv)
is a Contract relating to the acquisition or disposition of any business, assets or operations (whether by merger, sale of stock,
sale of assets, consolidation or otherwise) with continuing or contingent obligations that would reasonably be expected to be in excess
of $15,000,000;
(xv)
is a Contract restricting the Company’s or its Subsidiaries’ rights to use, practice, register, obtain or enforce any
material Intellectual Property owned by the Company or any of its Subsidiaries;
(xvi)
is a Labor Agreement; or
(xvii)
is a material hedging, derivative or similar Contract (including interest rate, currency or commodity swap agreements, cap agreements,
collar agreements and any similar Contract designed to protect a Person against fluctuations in interest rates, currency exchange rates
or commodity prices).
(b) Except
as has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect,
(i) neither the Company nor any of its Subsidiaries is in breach of or default (or, with the giving of notice or lapse of time or
both, would be in default) under the terms of, and has not taken any action resulting in the termination of, acceleration of
performance required by, or resulting in a right of termination or acceleration under, any Company Material Contract, (ii) as of the
date of this Agreement, to the Knowledge of the Company, no other party to any Company Material Contract is in breach of or default
(or, with the giving of notice or lapse of time or both, would be in default) under the terms of, or has taken any action resulting
in the termination of, acceleration of performance required by, or resulting in a right of termination or acceleration under, any
Company Material Contract and (iii) each Company Material Contract is (A) a valid and binding obligation of the Company or its
Subsidiary that is a party thereto, as applicable, and, to the Knowledge of the Company, the other parties thereto, (provided
that (i) such enforcement may be subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws, now
or hereafter in effect, relating to creditors’ rights and remedies generally and (ii) the remedies of specific performance and
injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which
any Proceeding therefor may be brought) and (B) in full force and effect.
Section 3.15
Related Party Transactions. No (i) current or former officer or director of the Company; (ii) beneficial owner of five percent
(5%) or more of any voting securities of the Company; or (iii) any “affiliate” or “associate” of any such Person,
has any interest in any Contract or property (real or personal, tangible or intangible), used in, or pertaining to the business of the
Company or any of its Subsidiaries, which interest would be required to be disclosed pursuant to Item 404(a) of Regulation S-K promulgated
under the Exchange Act and that have not been so disclosed in the Company SEC Documents.
Section 3.16
Intellectual Property.
(a)
Section 3.16(a) of the Company Disclosure Letter sets forth a complete and accurate list (in all material respects) of all
United States and foreign (i) patents and patent applications; (ii) trademark registrations and applications (including internet domain
name registrations); and (iii) copyright registrations and applications, in each case owned by the Company or any of its Subsidiaries
as of the date of this Agreement. Such applications and registrations are in effect and subsisting and, to the Knowledge of the Company,
valid and enforceable. The Company or one of its Subsidiaries is the sole beneficial and record owner of all such applications and registrations,
free and clear of all Encumbrances other than Permitted Encumbrances.
(b)
Except as would not be, or reasonably be expected to be, individually, or in the aggregate, material to the Company and its Subsidiaries,
taken as a whole, the Company and its Subsidiaries own, validly license or have the right to use in the manner currently used, all Intellectual
Property that is used in the respective businesses of the Company and its Subsidiaries as currently conducted.
(c) To
the Knowledge of the Company, except as would not be, or reasonably be expected to be, individually or in the aggregate, material to
the Company and its Subsidiaries, taken as a whole, the conduct of the respective businesses of the Company and its Subsidiaries as
currently conducted does not infringe upon, misappropriate or otherwise violate any Intellectual Property of any other Person. As of
the date of this Agreement, there is no claim for any such infringement, misappropriation or other violation pending or, to the
Knowledge of the Company, threatened, except for any such infringement, misappropriation or other violation that has not been, and
would not reasonably be expected to be, individually or in the aggregate, material to the Company and its Subsidiaries, taken as a
whole. To the Knowledge of the Company, no other Person is infringing, misappropriating or otherwise violating any Intellectual
Property owned by the Company or any of its Subsidiaries, except for any such infringement, misappropriation or other violation as
has not been, and would not reasonably be expected to be, individually or in the aggregate, material to the Company and its
Subsidiaries, taken as a whole.
(d)
Except as would not be, or reasonably be expected to be, individually or in the aggregate, material to the Company and its Subsidiaries,
taken as a whole:
(i)
all inventors listed in any patent application set forth in Section 3.16(a) of the Company Disclosure Letter have executed
written assignments of such application and all Intellectual Property related thereto in favor of the Company or one of its Subsidiaries,
as applicable;
(ii)
the Company and each of its Subsidiaries have taken commercially reasonable measures to protect the confidentiality of the trade
secrets owned, held for use or used by it;
(iii)
no current or former partner, director, equityholder, officer, or employee of the Company or its Subsidiaries will, after giving
effect to the transactions contemplated hereby, own or retain any rights to use any of the Intellectual Property owned, used or held for
use by the Company or its Subsidiaries;
(iv)
the consummation of the transactions contemplated hereby will not result in (A) the loss or impairment of the Company’s or
its Subsidiaries’ right to own or use any Intellectual Property owned, held for use or used by the business of the Company and its
Subsidiaries as it is currently conducted or (B) any obligation being imposed on Parent or any of its Subsidiaries to license to third
parties Intellectual Property owned by Parent or any of its Subsidiaries as of the date hereof.
Section 3.17
Information Technology; Data Privacy.
(a)
Except as has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse
Effect, (i) neither the Company nor any of its Subsidiaries has experienced any defects in any Software or other information technology
systems used or held for use by the Company or its Subsidiaries, including any material error, omission, interruption or delay in the
processing of any transactions or data, and (ii) no Software used or held for use by the Company or its Subsidiaries contains any device
or feature designed to disrupt, disable, or otherwise impair the functioning of any Software or any back door, time bomb, Trojan, worm,
drop-dead device, or other code or routines that permit unauthorized access or the unauthorized disablement or erasure of such Software
or information or data (or all parts thereof) or other Software of users.
(b)
The Company and its Subsidiaries maintain disaster recovery plans that are adequate to ensure that the computer hardware, Software
and data used by the Company and its Subsidiaries can be replaced or substituted without material disruption to their respective businesses.
(c)
The Company and its Subsidiaries have adequate procedures in place to ensure internal and external security of the computer hardware,
Software and data used or held for use in their respective businesses, including adequate technical, physical and organizational measures
for preventing unauthorized access to Company Data, preventing the introduction of viruses and making and storing on-site and off-site
back-up copies of Software and data. To the Knowledge of the Company, there have been no security breaches in the information technology
systems used by the Company or any of its Subsidiaries except as would not be, or reasonably be expected to be, individually or in the
aggregate, material to the Company and its Subsidiaries, taken as a whole.
(d)
Except as has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse
Effect, no material Software owned by the Company or any of its Subsidiaries is subject to the terms of any “open source”
or other similar license that provides for any source code of such Software to be disclosed, licensed, publicly distributed or dedicated
to the public.
(e)
The Company and its Subsidiaries’ data, privacy and security practices conform, and since January 1, 2019 have conformed,
to all of the Privacy Commitments in all material respects. Neither the Company nor any of its Subsidiaries has received written notice
of, and, to the Knowledge of the Company, there is no circumstance that would reasonably be expected to give rise to, any allegation from
a Governmental Authority or other Person (including an end user) alleging or confirming non-compliance with a relevant requirement of
the Privacy Commitments.
Section 3.18
Real and Personal Property.
(a)
Except as has not been, and would not reasonably be expected to be, individually or in the aggregate, material to the Company or
its Subsidiaries, taken as a whole, the Company and its Subsidiaries have good and marketable title to, or valid leasehold interests in,
all of their respective properties and assets, free and clear of all Encumbrances, except for Permitted Encumbrances. The Company and
each of its Subsidiaries enjoy peaceful and undisturbed possession under each lease, sublease, license or other use or occupancy agreement
pursuant to which the Company or any of its Subsidiaries leases, subleases, licenses or otherwise uses or occupies real property (such
real property, the “Leased Real Property” and each, together with all amendments or modifications thereto and guaranties
thereof, a “Real Property Lease”), except as has not had, and would not reasonably be expected to have, individually
or in the aggregate, a Company Material Adverse Effect. Schedule 3.18(a) sets forth, as of the date of this Agreement, (i) all
of the real property that is owned by the Company or any Subsidiary (the “Owned Real Property”) and (ii) all of the
material Leased Real Property.
(b) Each
Real Property Lease is a valid and binding obligation of the Company or any of its Subsidiaries that is a party thereto, as
applicable, and to the Knowledge of the Company, the other parties thereto and is in full force and effect, except as has not had,
and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect; provided
that (i) such enforcement may be subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws, now
or hereafter in effect, relating to creditors’ rights and remedies generally and (ii) the remedies of specific performance and
injunctive relief and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before
which any Proceeding therefor may be brought.
(c)
Except as has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse
Effect, neither the Company nor any of its Subsidiaries is in default under, and there is no event that with notice, lapse of time, or
both, would constitute a default by Company or any of its Subsidiaries under, the provisions of any Real Property Lease, and to the Company’s
Knowledge, no other party to a Real Property Lease is in default under, and there is no event that with notice, lapse of time, or both,
would constitute a default by such other party under, any Real Property Lease. Neither the Company nor any of its Subsidiaries has received
any written communication from, or given any written communication to, or to the Knowledge of the Company, received or given any other
type of communication from or to, any other party to a Real Property Lease alleging that the Company, any of its Subsidiaries or such
other party, as the case may be, is in default under such Real Property Lease.
(d)
The Leased Real Property, together with the Owned Real Property, are referred to herein collectively as the “Real Property”.
Except as set forth in Section 3.18(d) of the Company Disclosure Letter, no Person, other than the Company or a Subsidiary of the
Company, possesses, uses or occupies all or any portion of any Real Property. There are no outstanding options or rights of first refusal
to purchase the Owned Real Property. Neither the Company nor any Subsidiary of the Company is a party to any agreement, right of first
offer, right of first refusal or option with respect to the purchase or sale of any real property or interest therein. There are no pending
or, to the Knowledge of the Company, threatened Proceedings to take all or any portion of the Real Property or any interest therein by
eminent domain or any condemnation proceeding (or the jurisdictional equivalent thereof) or any sale or disposition in lieu thereof or
to change or redefine the zoning classification of all or any portion of the Real Property, except as has not had, and would not reasonably
be expected to have, individually or in the aggregate, a Company Material Adverse Effect.
(e)
Except as has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse
Effect, all improvements located on the Real Property are in good condition (ordinary wear and tear excepted). The Real Property is all
of the material real property used in connection with the operation of the business of the Company and its Subsidiaries as currently conducted.
Section 3.19
Environmental. Except as has not had, and would not reasonably be expected to have, individually or in the aggregate, a
Company Material Adverse Effect:
(a)
the Company and its Subsidiaries are and, except for matters which have been resolved, have been in compliance with all applicable
Environmental Laws, including possessing and complying with the terms of all Company Permits required for their operations under applicable
Environmental Laws;
(b) as
of the date of this Agreement, there is no pending or, to the Knowledge of the Company, threatened Proceeding pursuant to any
Environmental Law against the Company or any of its Subsidiaries. As of the date of this Agreement, neither the Company nor any of
its Subsidiaries has received notice or a request for information from any Person, including any Governmental Authority, alleging
that the Company or any of its Subsidiaries has been or is in actual or potential violation of any applicable Environmental Law or
otherwise may be liable under any applicable Environmental Law, which violation or liability is unresolved. Neither the Company nor
any of its Subsidiaries is a party or subject to any Order pursuant to Environmental Law;
(c)
there have been no Releases of Hazardous Materials on or underneath any location that has resulted, or is reasonably likely to
result in an obligation by the Company or any of its Subsidiaries to remediate such Releases pursuant to applicable Environmental Law
or otherwise result in liability to the Company or any of its Subsidiaries pursuant to applicable Environmental Law with respect to such
Releases; and
(d)
the Company has delivered or otherwise made available for inspection to the Parent copies of any material reports, investigations,
audits, assessments (including Phase I or II environmental site assessments), studies or other material documents in the possession of
or reasonably available to the Company or any of its Subsidiaries pertaining to: (i) any unresolved claims arising under or related to
any Environmental Law; (ii) any Hazardous Materials in, on, beneath or adjacent to any property currently or formerly owned, operated
or leased by the Company or any of its Subsidiaries; or (iii) the Company’s or any of its Subsidiaries’ compliance with applicable
Environmental Laws.
Section 3.20
Customers and Suppliers. Except as set forth in Section 3.20 of the Company Disclosure Letter, none of (a) the ten
(10) largest customers (by revenue) of the businesses of the Company and its Subsidiaries during the two (2) years prior to the date of
this Agreement (each, a “Top Customer”) or (b) the ten (10) largest suppliers (by cost) of the businesses of the Company
and its Subsidiaries during the two (2) years prior to the date of this Agreement or any sole source supplier that is material to the
business of the Company and its Subsidiaries (each, a “Top Supplier”) has canceled or otherwise terminated, or to the
Knowledge of the Company, threatened to cancel or otherwise terminate, its relationship with the Company or any of its Subsidiaries or
to decrease materially the quantity of products or services purchased from or sold to, respectively, the businesses of the Company or
any of its Subsidiaries since January 1, 2019, outside of ordinary cyclical fluctuations in business from the placing and fulfillment
of Contracts.
Section 3.21 Products.
Except as has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse
Effect, since January 1, 2019, (a) each product developed, manufactured, marketed, sold, leased or distributed by the Company or any
of its Subsidiaries (each, a “Company Product”) has been free of defects and in conformity with all applicable
contractual specifications, applicable statutory requirements and all express and implied warranties made by the Company or any of
its Subsidiaries, (b) neither the Company nor any of its Subsidiaries has any liability for replacement or repair of any Company
Product or other damages in connection therewith, (c) there has not been any recall or post-sale warning concerning any Company
Product and (d) neither the Company nor any of its Subsidiaries has received any written, or, to the Knowledge of the Company, oral
notice of any product liability Proceeding by or before any Governmental Authority relating to any Company Product. There are not
presently any pending, or, to the Knowledge of the Company, threatened, Proceedings relating to any alleged hazard or alleged defect
in design, manufacture, materials or workmanship relating to any Company Product.
Section 3.22
Foreign Corrupt Practices Act; Anti-Corruption.
(a)
Since January 1, 2016, neither the Company nor any of its Subsidiaries, nor, to the Knowledge of the Company, any director, officer,
employee, stockholder, agent or representative (including any distributor, reseller, systems integrator, value-added reseller, consultant,
independent contractor, referral partner or other channel partner) of the Company or its Subsidiaries, has directly or indirectly made,
offered to make, or attempted to make any contribution, gift, bribe, rebate, payoff, influence payment, kickback or other payment to any
Person, private or public, regardless of what form, whether in money, property or services, in violation of the U.S. Foreign Corrupt Practices
Act of 1977, the U.K. Bribery Act 2010, laws promulgated pursuant to the OECD Convention on Combating Bribery of Foreign Public Officials
in International Business Transactions, or any other applicable Law, rule or regulation relating to anti-corruption or anti-bribery (collectively,
the “Anti-Corruption Laws”). Without limiting the foregoing, neither the Company nor any of its Subsidiaries, nor,
to the Knowledge of the Company or its Subsidiaries, any director, officer, employee, stockholder, agent or representative (including
any distributor, reseller, systems integrator, value-added reseller, consultant, independent contractor, referral partner or other channel
partner) of the Company, has directly or indirectly offered or given anything of value to (i) any foreign official, any foreign political
party or official thereof or any candidate for political office or (ii) any Person, while knowing that all or a portion of such thing
of value will be offered, given or promised, directly or indirectly, to any foreign official, to any foreign political party or official
thereof or to any candidate for foreign political office for the purpose of the following: (A) influencing any act or decision of such
foreign official, political party, party official or candidate in his, her or its official capacity, including influencing such foreign
official, political party, party official or candidate to do or omit to do any act in violation of the lawful duty of such foreign official,
political party, party official or candidate, or securing any improper advantage or (B) inducing such foreign official,
political party, party official or candidate to use his, her or its influence with a foreign Governmental Authority or instrumentality
thereof to affect or influence any act or decision of such Governmental Authority or instrumentality, in order to assist the Company or
any Subsidiaries in obtaining or retaining business for or with, or directing business to, any Person.
(b)
To the Knowledge of the Company, neither the Company nor any of its Subsidiaries or Affiliates nor any of their respective Representatives
(i) is under external or internal investigation for (A) any potential violation of the Anti-Corruption Laws, (B) any alleged irregularity,
misstatement or omission arising under or relating to any Contract between such Person and any Governmental Authority, or any instrumentality
thereof or (C) any contribution, gift, bribe, rebate, payoff, influence payment, kickback or other payment or the provision of anything
of value, directly or indirectly, to a foreign official, any foreign political party or official thereof or any candidate for foreign
political office, (ii) has received any notice or other communication (in writing or otherwise) from any Governmental Authority regarding
any actual, alleged or potential violation of, or failure to comply with, any Anti-Corruption Laws or (iii) is or has been since January
1, 2016, the subject of any internal complaint, audit or review process regarding allegations of potential violation of the Anti-Corruption
Laws.
(c)
The Company and its Subsidiaries and Affiliates have at all times since January 1, 2016, maintained an adequate system or systems
of internal controls reasonably designed to (i) ensure compliance with the Anti-Corruption Laws and (ii) prevent and detect violations
of the Anti-Corruption Laws.
(d)
Since January 1, 2016, neither the Company nor any of its Subsidiaries has made any disclosure (voluntary or otherwise) to any
Governmental Authority with respect to any alleged irregularity, misstatement or omission or other potential violation or liability arising
under or relating to any applicable Anti-Corruption Laws.
Section 3.23
Customs and International Trade Laws.
(a)
To the Knowledge of the Company, since January 1, 2016, the Company and its Subsidiaries have been in compliance with all applicable
Customs and International Trade Laws and there are no unresolved formal claims or other Proceedings concerning the liability of any of
the Company or its Subsidiaries under such Laws. Without limiting the foregoing, (i) since January 1, 2016, each director, officer, employee,
and, to the Knowledge of the Company, agent of the Company or any of its Subsidiaries has been in compliance with all applicable Customs
and International Trade Laws; (ii) at all times since January 1, 2016, the Company, its Subsidiaries and Persons acting on their behalf
have obtained all required import and export licenses and all other Customs and International Trade Authorizations; (iii) since January
1, 2016, no Governmental Authority has initiated any Proceedings or imposed any civil or criminal fine, penalty, seizure, forfeiture,
revocation of a Customs and International Trade Authorization, debarment or denial of future Customs and International Trade Authorizations
against any of the Company or its Subsidiaries or any of their respective directors, officers, employees or, to the Knowledge of the Company,
agents in connection with any actual or alleged violation of any applicable Customs and International Trade Laws; and (iv) since January
1, 2016, there have been no claims, investigations or requests for information by a Governmental Authority with respect to the Company’s
and its Subsidiaries’ Customs and International Trade Authorizations and compliance with applicable Customs and International Trade
Laws.
(b)
Neither the Company nor any of its Subsidiaries, nor any director, officer, employee, or agent thereof, is a Sanctioned Person.
(c)
Each of the Company and its Subsidiaries has in place adequate controls and systems reasonably designed to ensure compliance with
applicable Customs and International Trade Laws in each of the jurisdictions in which the Company or any of its Subsidiaries conduct business.
(d)
Since January 1, 2016, neither the Company nor any of its Subsidiaries has made any disclosure (voluntary or otherwise) to any
Governmental Authority with respect to any alleged irregularity, misstatement or omission, or other potential violation or liability arising
under or relating to any applicable Customs and International Trade Laws.
Section 3.24 Insurance.
The Company and its Subsidiaries have paid, or caused to be paid, all premiums due under all material insurance policies of the
Company and its Subsidiaries, and all such insurance policies are in full force and effect, other than as has not had, and would not
reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. As of the date of this
Agreement, neither the Company nor any of its Subsidiaries has received written notice that they are in default with respect to any
obligations under such policies other than as have not had, and would not reasonably be expected to have, individually or in the
aggregate, a Company Material Adverse Effect. As of the date of this Agreement, neither the Company nor any of its Subsidiaries has
received any written notice of cancellation or termination with respect to any existing material insurance policy, or refusal or
denial of any material coverage, reservation of rights or rejection of any material claim under any existing material insurance
policy, in each case that is held by, or for the benefit of, the Company or any of its Subsidiaries, other than as has not had, and
would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.
Section 3.25
Takeover Statutes. The Company Board has taken such actions and votes as are necessary to render the provisions of any “fair
price,” “moratorium,” “control share acquisition” or any other takeover or anti-takeover statute or similar
federal or state Law (including Section 203 of the DGCL) inapplicable to this Agreement, the Voting Agreement, the Merger or any other
transactions contemplated by this Agreement.
Section 3.26
Brokers. No investment banker, broker or finder other than Morgan Stanley & Co. LLC, the fees and expenses of which
will be paid by the Company, is entitled to any investment banking, brokerage, finder’s or similar fee or commission in connection
with this Agreement or the transactions contemplated by this Agreement based upon arrangements made by or on behalf of the Company or
any of its Affiliates. True, correct and complete copies of all engagement letters in effect between the Company and Morgan Stanley &
Co. LLC for the provision of financial advisory services have been made available to Parent.
Section 3.27
Opinion of Financial Advisor. The Company Board has received the opinion (or an oral opinion to be confirmed in writing)
of its financial advisor, Morgan Stanley & Co. LLC to the effect that, as of the date of such opinion, and based upon and subject
to the limitations, assumptions and qualifications and other matters set forth in the written opinion, the Merger Consideration is fair
from a financial point of view to the holders of shares of Company Common Stock. Such opinion has not been materially amended or rescinded
as of the date of this Agreement. Promptly after the date of this Agreement, a true, correct and complete copy of such opinion in written
form will be made available to Parent for informational purposes.
Section 3.28
Termination of Middleby Agreement. The Company has validly terminated the Middleby Agreement in accordance with its terms
and has no further liabilities thereunder. Concurrent with, and as a condition to the effectiveness of such termination, the Middleby
Termination Fee was paid to Middleby by wire transfer of immediately available funds in accordance with the terms of the Middleby Agreement
in full satisfaction of all of the Company’s remaining obligations under the Middleby Agreement. The Company has instructed Middleby
to destroy or erase all Confidential Information (as defined in the Middleby Confidentiality Agreement) previously furnished to Middleby
or to Middleby’s Representatives by or on behalf of the Company or any of its Subsidiaries (in accordance with the terms of the
Middleby Confidentiality Agreement).
Section 3.29
No Other Representations or Warranties. Except for the representations and warranties contained in this Article III,
neither the Company nor any other Person on behalf of the Company makes any express or implied representation or warranty with respect
to the Company or any of its Subsidiaries or any other information provided to Parent or Merger Sub in connection with the transactions
contemplated by this Agreement, including the accuracy, completeness or timeliness thereof. Neither the Company nor any of its Subsidiaries
has made or makes any representation or warranty with respect to any projections, estimates or budgets made available to the public,
Parent, Merger Sub or their Affiliates of future revenues, future production, future results of operations (or any component thereof),
future cash flows, the future financial condition (or any component thereof) or the future business and operations of the Company and
its Subsidiaries.
Article
IV
REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB
Except as disclosed in the particular
section or subsection of the Parent Disclosure Letter expressly referenced therein (it being understood and agreed that any information
set forth in one section or subsection of the Parent Disclosure Letter also shall be deemed to apply to each other section and subsection
of this Agreement to which its applicability is reasonably apparent on its face from the text of the disclosure), Parent and Merger Sub
hereby, jointly and severally, represent and warrant to the Company as follows:
Section 4.1
Organization; Qualification. Each of Parent, Merger Sub and their respective Subsidiaries is (i) a legal entity duly organized
and validly existing under the laws of the jurisdiction of its incorporation, formation or organization, as applicable, and (ii) has the
requisite corporate or similar power and authority to conduct its business as it is now being conducted and to own, lease and operate
its properties and assets in the manner in which its properties and assets are currently operated, except where the failure to be so validly
existing and authorized has not had, and would not reasonably be expected to have, individually or in the aggregate, a Parent Material
Adverse Effect. Each of Parent, Merger Sub and their respective Subsidiaries is duly qualified or licensed to do business and is in good
standing in each jurisdiction in which the character or location of the property owned, leased or operated by it or the nature of the
business conducted by it makes such qualification or licensing necessary, except where the failure to be so duly qualified or licensed
and in good standing has not had, and would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse
Effect. The Parent Organizational Documents have been made available to the Company and are in full force and effect, and neither Parent
nor Merger Sub, as applicable, is in violation of any of the provisions thereof.
Section 4.2
Authority Relative to Agreement.
(a) Each
of Parent, Acquiror and Merger Sub have all necessary corporate power and authority to execute, deliver and perform their respective
obligations under this Agreement. The execution, delivery and performance of this Agreement by Parent, Acquiror and Merger Sub, and
the consummation by Parent, Acquiror and Merger Sub of the transactions contemplated by this Agreement, have been duly and validly
authorized by all necessary corporate action by Parent, Acquiror and Merger Sub, and no other corporate action or proceeding on the
part of Parent, Acquiror or Merger Sub is necessary to authorize the execution, delivery and performance of this Agreement by
Parent, Acquiror and Merger Sub and the consummation by Parent, Acquiror and Merger Sub of the transactions contemplated by this
Agreement. This Agreement has been duly executed and delivered by Parent, Acquiror and Merger Sub and, assuming due authorization,
execution and delivery of this Agreement by the other parties hereto, constitutes a legal, valid and binding obligation of each of
Parent, Acquiror and Merger Sub, enforceable against each of Parent, Acquiror and Merger Sub in accordance with its terms, except
that (A) such enforcement may be subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws, now
or hereafter in effect, affecting creditors’ rights and remedies generally and (B) the remedies of specific performance and
injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which
any Proceeding therefor may be brought.
(b)
The Parent Board and the board of directors of Merger Sub have, by resolutions unanimously adopted thereby, (i) approved this Agreement
and the transactions contemplated by this Agreement, and (ii) determined that this Agreement and the transactions contemplated by this
Agreement are advisable and in the best interests of Parent and Merger Sub and their respective stockholders, as applicable. Acquiror
(or any other direct or indirect wholly owned Subsidiary of Parent that becomes a stockholder of Merger Sub), acting in its capacity as
the sole stockholder of Merger Sub, has approved and adopted this Agreement. As of the date of this Agreement, none of the aforesaid actions
by the Parent Board or the board of directors of Merger Sub have been amended, rescinded or modified. No vote of the holders of securities
of Parent is required in connection with the consummation of the transactions contemplated by this Agreement.
Section 4.3
No Conflict; Required Filings and Consents.
(a)
Neither the execution and delivery of this Agreement by Parent and Merger Sub nor the consummation by Parent and Merger Sub of
the transactions contemplated by this Agreement, nor compliance by Parent and Merger Sub with any of the terms or provisions of this Agreement,
will (i) violate any provision of the Parent Organizational Documents or the certificate of incorporation or bylaws (or equivalent organizational
documents) of any Subsidiary of the Company, (ii) assuming that the Consents, registrations, declarations, filings and notices referenced
in Section 4.3(b) have been obtained or made, conflict with or violate any Law applicable to Parent, Merger Sub or their respective
Subsidiaries or by which any property or asset of Parent, Merger Sub or their respective Subsidiaries is bound or affected or (iii) violate,
conflict with or result in any breach of any provision of, or loss of any benefit, or constitute a default (with or without notice or
lapse of time, or both) under, give rise to any right of termination, acceleration or cancellation of or require the Consent of, notice
to or filing with any third party pursuant to any of the terms or provisions of any Contract to which Parent, Merger Sub or any of their
respective Subsidiaries is a party, or by which any property or asset of Parent, Merger Sub or any of their respective Subsidiaries is
bound or affected, or result in the creation of any Encumbrance, other than any Permitted Encumbrance, upon any of the property or assets
of Parent, Merger Sub or any of their respective Subsidiaries, other than, in the case of clauses (ii) and (iii), any such conflict, violation,
breach, default, termination, acceleration, cancellation or Encumbrance that has not had, and would not reasonably be expected to have,
individually or in the aggregate, a Parent Material Adverse Effect.
(b)
No Consent of, registration, declaration or filing with or notice to any Governmental Authority is required to be obtained or
made by or with respect to Parent or Merger Sub in connection with the execution, delivery and performance of this Agreement or the consummation
of the transactions contemplated by this Agreement, other than (i) the filing of the Certificate of Merger with the Delaware Secretary
of State, (ii) such other items required solely by reason of the participation of the Company in the transactions contemplated by this
Agreement, (iii) compliance with and filings or notifications under Antitrust Laws and (iv) such other Consents, registrations, declarations,
filings or notices the failure of which to be obtained or made has not had, and would not reasonably be expected to have, individually
or in the aggregate, a Parent Material Adverse Effect.
Section 4.4
Litigation. As of the date of this Agreement, (a) there is no Proceeding pending or, to the Knowledge of Parent, threatened
against Parent or any of its Subsidiaries or any asset or property of Parent or any of its Subsidiaries, and (b) there is no Order outstanding
against, or involving, Parent or any of its Subsidiaries or any asset or property of Parent or any of its Subsidiaries that, in each case
that would reasonably be expected to, individually or in the aggregate, impair in any material respect the ability of Parent to perform
its obligations under this Agreement or to consummate the Merger, or prevent or materially delay the consummation of any of the Merger
and the other transactions contemplated by this Agreement.
Section 4.5
Information Supplied. None of the information supplied or to be supplied by or on behalf of Parent or any of its Subsidiaries
for inclusion or incorporation by reference in the Proxy Statement will, at the date it, or any amendment or supplement to it, is mailed
to stockholders of the Company and at the time of the Company Stockholders’ Meeting contain any untrue statement of a material fact
or omit to state a material fact necessary to make the statements therein, in light of the circumstances in which they are made, not misleading.
Section 4.6
Merger Sub. Merger Sub was formed by Parent and is wholly owned by a direct or indirect wholly owned Subsidiary of Parent
solely for the purpose of engaging in the transactions contemplated by this Agreement. 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, obligations or liabilities of any nature
other than those incident to its incorporation and the transactions contemplated by this Agreement.
Section 4.7
Brokers. No investment banker, broker or finder other than Goldman Sachs & Co. LLC, the fees and expenses of which will
be paid by Parent, is entitled to any investment banking, brokerage, finder’s or similar fee or commission in connection with this
Agreement or the transactions contemplated by this Agreement based upon arrangements made by or on behalf of Parent or Merger Sub.
Section 4.8 Share
Ownership. None of Parent, Merger Sub or any of their Affiliates has been, at any time during the three (3) years preceding the
date of this Agreement, an “interested stockholder” of the Company, as defined in Section 203 of the DGCL. As of the
date of this Agreement, none of Parent, Merger Sub or their respective Affiliates owns (directly or indirectly, beneficially or of
record) any Company Common Stock (other than pursuant to the Voting Agreement) and none of Parent, Merger Sub or any of their
respective Affiliates holds any rights to acquire any Company Common Stock except pursuant to this Agreement (in each case other
than de minimis holdings held by directors and officers of Parent or any of its Subsidiaries).
Section 4.9
Debt Financing.
(a) Concurrently with the execution of this Agreement, Parent has delivered to the Company an executed commitment letter, including
all exhibits and schedules thereto, and fee letters (in the case of such fee letters, redacted in a customary manner, including with respect
to the amounts and percentages of the fees set forth therein and with respect to “flex”), each dated July 14, 2021 (such agreements,
the “Debt Commitment Letter”), among Parent and the agents, arrangers, lenders, underwriters, managers and other entities
acting in similar roles identified therein (together with any Persons that become a party thereto after the date hereof in accordance
with the terms thereof or which become party to any definitive documentation relating to the Debt Financing, collectively, the “Financing
Sources”) pursuant to which such Financing Source has committed, on the terms and subject to the conditions set forth therein,
to provide or arrange all or part of the financing contemplated under the Debt Commitment Letter for the purposes of financing the transactions
contemplated by this Agreement and paying related fees and expenses (the “Debt Financing”).
(b) As
of the date hereof, the Debt Commitment Letter has not been amended or modified, no amendment or modification to the Debt Commitment
Letter is contemplated, and the commitments contained in the Debt Commitment Letter have not been withdrawn or rescinded in any
respect. There are no side letters or other Contracts related to the investing or funding, as applicable, of the Debt Financing
other than as expressly set forth in the Debt Commitment Letter and other than customary engagement letters with respect to debt
securities to be issued in lieu of any bridge financing contemplated by the Debt Commitment Letter. Parent has fully paid any and
all commitment fees or other fees or expenses in connection with the Debt Commitment Letter that are payable on or prior to the date
hereof, if any, and Parent is unaware of any fact or occurrence existing on the date hereof that would reasonably be expected to
make any of the assumptions or any of the statements set forth in the Debt Commitment Letter ineffective. The Debt Commitment Letter
is in full force and effect and is the legal, valid, binding and enforceable obligation of Parent and, to the knowledge of Parent,
each of the other parties thereto, as the case may be, subject to the effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar applicable Laws relating to or affecting creditors’ rights generally and general
equitable principles (whether considered in a proceeding in equity or at law). There are no conditions precedent related to the
funding of the Debt Financing on the Closing Date, other than as expressly set forth in the Debt Commitment Letter. As of the date
hereof, assuming the satisfaction of the conditions set forth in Section 6.1 and Section 6.2 and compliance by the
Company with Section 5.12, no event has occurred that, with or without notice, lapse of time or both, would reasonably be
expected to (i) constitute a default or breach on the part of Parent under the Debt Commitment Letter, (ii) constitute or result in
a failure to satisfy any of the terms or conditions set forth in the Debt Commitment Letter, or (iii) otherwise result in any
portion of the Debt Financing not being available on the Closing Date. Assuming the satisfaction of the conditions set forth in Section
6.1 and Section 6.2 and compliance by the Company with Section 5.12, Parent has no reason to believe that any of
the conditions to the Debt Financing contemplated by the Debt Commitment Letter will not be satisfied or that the Debt Financing
will not be made available on or prior to the Closing, and Parent is not aware of the existence of any fact or event as of the date
hereof that would reasonably be expected to cause such conditions to funding not to be satisfied and the Closing not to occur. The
Debt Financing, together with cash on hand of the Parent, provides for, at the Closing, funds sufficient to satisfy all payment
obligations of Parent required to be made hereunder at or in connection with the Closing.
Section 4.10
No Other Representations or Warranties. Except for the representations and warranties contained in this Article IV,
neither Parent nor any of Merger Sub nor any other Person on behalf of Parent or any of Merger Sub makes any express or implied representation
or warranty with respect to Parent or any of its Subsidiaries or any other information provided to the Company in connection with the
transactions contemplated by this Agreement, including the accuracy, completeness or timeliness thereof. Neither Parent nor any of its
Subsidiaries has made or makes any representation or warranty with respect to any projections, estimates or budgets made available to
the public, the Company or its Affiliates of future revenues, future production, future results of operations (or any component thereof),
future cash flows, the future financial condition (or any component thereof) or the future business and operations of Parent and its Subsidiaries.
Article
V
COVENANTS AND AGREEMENTS
Section 5.1
Conduct of Business by the Company Pending the Merger. The Company covenants and agrees that, between the date of this Agreement
and the earlier of the Effective Time and the date, if any, on which this Agreement is terminated in accordance with Section 7.1,
except (A) as may be required by Law, (B) as may be agreed in writing by Parent (which consent shall not be unreasonably withheld, delayed
or conditioned), (C) as may be expressly contemplated or required pursuant to this Agreement, (D) for any reasonable and good faith actions
taken or omitted to be taken, or any plans, procedures and practices adopted, solely to preserve the property and assets of the Company
and its Subsidiaries or to protect the safety or health of personnel of the Company and its Subsidiaries in connection with the COVID-19
pandemic, in each case (i) consistent with prior practice or with respect to which the Company has reasonably consulted with Parent (to
the extent practicable), and (ii) other than with respect to Section 5.1(a), Section 5.1(b), Section 5.1(c),
Section 5.1(d), Section 5.1(k), Section 5.1(m), Section 5.1(q), Section 5.1(r), Section 5.1(s),
and Section 5.1(y), to which this clause (D) shall not apply, and Section 5.1(n), to which this clause (D) shall be limited
as set forth therein, or (E) as set forth in Section 5.1 of the Company Disclosure Letter, (x) the Company shall, and shall cause
its Subsidiaries to, conduct the business of the Company and its Subsidiaries in the ordinary course of business and in a manner consistent
with past practice and use reasonable best efforts to preserve its assets and business organization and maintain its existing relationships
and goodwill with material customers, suppliers, distributors, Governmental Authorities and business partners, and to keep available the
services of its officers and key employees, and (y) the Company shall not, and shall cause its Subsidiaries not to, directly or indirectly:
(a)
amend or otherwise change the Certificate of Incorporation or the Bylaws of the Company or such equivalent organizational or governing
documents of any of its Subsidiaries;
(b) adjust,
split, combine, subdivide, reclassify, redeem, repurchase or otherwise acquire or amend the terms of the Company’s or any of
its Subsidiaries’ capital stock or other equity interests or any options, equity or equity-based compensation, warrants,
convertible securities or other rights of any kind to acquire any shares of the Company’s or any of its Subsidiaries’
capital stock or other equity interests, other than the acceptance of shares of Company Common Stock as payment for the exercise
price or withholding taxes incurred in connection with the exercise, vesting or settlement of Company Equity Awards outstanding as
of the date hereof or equity awards granted following the date hereof pursuant to the Company Equity Plan and subject to the terms
of this Agreement;
(c)
issue, sell, pledge, dispose, encumber or grant, or authorize any of the foregoing with respect to, any shares of the Company’s
or its Subsidiaries’ capital stock or other equity interests (other than pledges to the Collateral Agent (as defined in the Existing
Credit Agreement) securing the Existing Credit Agreement), or any options, equity or equity-based compensation, warrants, convertible
securities or other rights of any kind to acquire any shares of the Company’s or any of its Subsidiaries’ capital stock or
other equity interests; other than the issuance of Company Common Stock pursuant to the Company Equity Awards;
(d)
declare, set aside, authorize, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with
respect to the Company’s or any of its Subsidiaries’ capital stock or other equity interests, other than dividends and distributions
paid by any Subsidiary of the Company to the Company or any wholly owned Subsidiary of the Company;
(e) (i)
establish, adopt, enter into any new, amend, terminate, or take any action to accelerate rights under, any Company Benefit Plan, or
any plan, program, policy, practice, agreement or other arrangement that would be a Company Benefit Plan if it had been in effect on
the date of this Agreement; (ii) grant or pay, or commit to grant or pay, any bonus, incentive or profit-sharing award or payment
(other than the payment of accrued and unpaid bonuses or other incentive or profit-sharing compensation in the ordinary course of
business consistent with past practice); (iii) increase, or commit to increase, the amount of the wages, salary, bonuses,
commissions, fringe benefits, severance or other compensation (including equity or equity-based compensation, whether payable in
stock, cash or other property), benefits or remuneration payable to any current or former employee or director of, or individual
service provider to, the Company or any Subsidiary of the Company (other than increases in annual base salaries and incentive
compensation opportunities at times and in amounts in the ordinary course of business consistent with past practice); (iv) take any
action to accelerate any payment or benefit, the vesting of any equity or equity-based award or the funding of any payment or
benefit, payable or to become payable to any current or former employee or director of, or individual service provider to, the
Company or any Subsidiary of the Company; (v) enter into any employment, severance, change in control, retention, individual
consulting or similar agreement with any current or former employee or director of, or individual service provider to, the Company
or any Subsidiary of the Company (other than offer letters that provide for at-will employment without any severance, retention or
change in control benefits for newly hired employees or individual service providers who are hired in the ordinary course of
business and whose annual base compensation does not exceed $200,000 individually), (vi) communicate with the employees of the
Company or any Subsidiary of the Company regarding the compensation, benefits or other treatment they will receive following the
Effective Time, unless such communications are consistent with the terms provided herein; or (vii) except as may be required by
GAAP, materially change any actuarial or other assumptions used to calculate funding obligations with respect to any Company Benefit
Plan or materially change the manner in which contributions to such plans are made or the basis on which such contributions are
determined;
(f)
hire, engage, promote or (other than for cause) terminate any employee or other individual service provider who is or would be
entitled to receive annual base compensation of $200,000 or more;
(g)
waive the restrictive covenant obligations of any employee of the Company or its Subsidiaries;
(h) grant,
confer or award equity or equity-based compensation, options, convertible securities, restricted stock, restricted stock units, deferred
stock units or other rights to acquire any of the Company’s or its Subsidiaries’ capital stock or other equity interests;
(i) make
any (A) loan or advance to (x) any officer or director of the Company or its Subsidiaries (other than travel and similar advances to
its employees in the ordinary course of business) or (y) employees of the Company or its Subsidiaries in excess of $100,000 in the aggregate,
or (B) loan, advance or capital contribution to, or investment in, any other Person in excess of $25,000 in the aggregate (other than
to or in the Company or any direct or indirect wholly owned Subsidiary of the Company);
(j) (A) forgive any loans or advances to (x) any officers or directors of the Company or its Subsidiaries, or any of their respective
Affiliates, or (y) employees of the Company or its Subsidiaries in excess of $100,000 in the aggregate, or (B) change its existing borrowing
or lending arrangements for or on behalf of any of such Persons pursuant to an employee benefit plan or otherwise;
(k) acquire
(including by merger, consolidation or acquisition of stock or assets) any corporation, partnership, limited liability company, joint
venture, other business organization or any division thereof or all or any of the assets, business or properties of any other Person,
in each case, with a value or purchase price that, individually or in the aggregate, exceeds $3,000,000, excluding any acquisitions of
supplies and inventory in the ordinary course of business;
(l) sell,
pledge, dispose of, transfer, abandon, lease, license, mortgage, incur any Encumbrance (other than Permitted Encumbrances) (including
pursuant to a sale-leaseback transaction or an asset securitization transaction) on or otherwise transfer or encumber any of the assets,
business, properties or rights of the Company or any of its Subsidiaries, in each case, with a value or purchase price that, individually
or in the aggregate, exceeds $3,000,000, except (i) sales of inventory in the ordinary course of business and consistent with past practice,
(ii) (x) transfers among, (y) the making and repayment of loans to, or (z) the guarantee of indebtedness of, the Company and its Subsidiaries
(but in the case of clause (ii), solely to the extent such exception is required under Section 6.09(b) of the Existing Credit Agreement),
or (iii) disposition of obsolete assets or expired inventory;
(m) (i)
redeem, pay, discharge or satisfy any Indebtedness that has a prepayment cost, “make whole” amount, prepayment penalty
or similar obligation (other than (A) the payment, discharge or satisfaction required pursuant to the terms of the Company’s
Existing Credit Facilities as in effect as of the date of this Agreement and (B) Indebtedness incurred by the Company or its wholly
owned Subsidiaries and owed to the Company or its wholly owned Subsidiaries) or (ii) cancel any material Indebtedness (individually
or in the aggregate) or waive or amend any claims or rights of substantial value;
(n)
incur, create, assume, guarantee or otherwise become liable for any Indebtedness (directly, contingently or otherwise) or assume
or guarantee the obligations of any Person (or enter into a “keep well” or similar arrangement) or issue or sell any debt
securities or options, warrants, calls or other rights to acquire any debt securities of the Company or any of its Subsidiaries (except
for (i) indebtedness or guarantees for drawdowns with respect to, or the entry into letters of credit under, the Company’s revolving
credit facility under its Existing Credit Facilities in the ordinary course of business consistent with past practice, (ii) Indebtedness
owed to the Company or its wholly owned Subsidiaries, (iii) Indebtedness incurred pursuant to clause (D) of the first sentence of Section
5.1, which shall not exceed $5,000,000 in the aggregate, and (iv) other Indebtedness in an aggregate amount not to exceed $2,000,000);
(o)
terminate, assign, enter into, agree to any material amendment or modification of, renew (other than renewals of the Contracts
set forth in Section 3.14(a)(i) or Section 3.14(a)(ii) in the ordinary course of business), or waive any material rights
under, any Company Material Contract or Real Property Lease, or any Contract that would have been a Company Material Contract or Real
Property Lease had it been entered into prior to the date of this Agreement, in each case, (i) with respect to any Company Material Contract
(x) that would result in expenditures or the incurrence of other liabilities or obligations (whether accrued or contingent) by the Company
and its Subsidiaries in excess of $2 million over the term of such Company Material Contract or $10 million in the aggregate over the
terms of all such Company Material Contracts and (y) for which the outstanding term of such Company Material Contract exceeds two years
and (ii) with respect to any Real Property Lease, (x) that would result in additional expenditures or the incurrence of other liabilities
or obligations (whether accrued or contingent) by the Company and its Subsidiaries in excess of $100,000 over the term of such Real Property
Lease or (y) for which the outstanding term of such Real Property Lease exceeds three years;
(p) except as required pursuant to an applicable Contract, including any Labor Agreement, in effect as of the date of this Agreement,
(i) modify, renew, extend or enter into any Labor Agreement or (ii) negotiate with, recognize or certify any Labor Organization as the
bargaining representative of any employees of the Company or any of its Subsidiaries;
(q)
make any material change to its methods of financial accounting, except as required by GAAP (or any interpretation thereof), Regulation
S-X of the Exchange Act or a Governmental Authority or quasi-Governmental Authority (including the Financial Accounting Standards Board
or any similar organization);
(r) make
or agree to make any capital expenditure, other than (i) with respect to capital expenditures in the calendar year ending December
31, 2021, (x) any capital expenditures in the amounts contemplated by the capital expenditure budget of the Company and its
Subsidiaries for the calendar year ending December 31, 2021 made available to Parent prior to the date hereof, or (y) additional
capital expenditures of less than $2,500,000 in the aggregate; provided, that the aggregate capital expenditures under
clauses (x) and (y) do not exceed $35,000,000 in the calendar year ending December 31, 2021, and (ii) with respect to capital
expenditures in the calendar year ending December 31, 2022, capital expenditures of less than $2,500,000 in the aggregate per month; provided, however,
that, in each case of clauses (i) and (ii), any capital expenditure greater than $500,000 relating to information technology systems
or enhancements or digital projects shall require the prior written consent of Parent (even if contemplated by such capital
expenditure budget);
(s) write
up, write down or write off the book value of any material assets, except to the extent required by GAAP;
(t) commence, release, compromise, assign, settle or agree to settle any action, claim, investigation or Proceeding, other than (i)
with respect to routine matters in the ordinary course of business and consistent with past practice, (ii) settlements that result solely
in monetary obligations involving payment (without the admission of wrongdoing) by the Company or any of its Subsidiaries of the amounts
specifically reserved in accordance with GAAP with respect to such action, claim, investigation or Proceeding on the Company’s consolidated
financial statements for the year ending December 31, 2020 or (iii) an amount not greater than $500,000 individually or $3,000,000 in
the aggregate;
(u) fail
to use commercially reasonable efforts to maintain in effect the material insurance policies covering the Company and its Subsidiaries
and their respective properties, assets and businesses;
(v) announce,
implement or effect any facility closing, layoff, early retirement programs, severance programs or reductions in force affecting more
than one hundred (100) employees of the Company or any of its Subsidiaries or giving rise to severance or other liabilities or obligations
in excess of $3,000,000 in the aggregate with respect to all such actions;
(w)
cancel, dedicate to the public, disclaim, forfeit, reissue, reexamine or abandon without filing a substantially identical counterpart
in the same jurisdiction with the same priority or allow to lapse (except with respect to patents expiring in accordance with their terms)
any Intellectual Property material to the Company, other than in the ordinary course of business consistent with the past practice of
the Company;
(x)
(i) make or change any material Tax election or change any method of Tax accounting; (ii) file any material amended Tax Return;
(iii) settle, compromise or close any audit or Proceeding relating to (A) U.S. federal income Taxes in an amount in excess of $500,000
individually or $2,000,000 in the aggregate or (B) state, local or non-U.S. Taxes in an amount in excess of $250,000 individually or $1,000,000
in the aggregate; (iv) agree to an extension or waiver of the statute of limitations with respect to any material amount of Taxes; (v)
enter into any “closing agreement” within the meaning of Section 7121 of the Code (or any similar provision of state, local
or non-U.S. Law) with respect to any material Tax; or (vi) surrender any right to claim a material Tax refund;
(y) merge
or consolidate the Company or any of its Subsidiaries with any Person or adopt a plan of complete or partial liquidation, dissolution,
restructuring, recapitalization or other reorganization of the Company or any of its Subsidiaries (other than any such transaction solely
between or involving wholly-owned Subsidiaries of the Company); or
(z) enter
into any agreement to do, authorize or adopt any resolutions approving, or announce any intention to do, any of the foregoing.
Section 5.2
Preparation of the Proxy Statement; Stockholder Meeting.
(a)
The Company shall prepare, and the Company shall use its reasonable best efforts to cause to be filed with the SEC within forty
(40) days after the execution of this Agreement, the Proxy Statement in preliminary form. The Company shall use its reasonable best efforts
to cause the Proxy Statement to comply with the applicable rules and regulations promulgated by the SEC. Parent shall furnish all information
as may be reasonably requested by the Company in connection with any such action and the preparation, filing and distribution of the Proxy
Statement. No filing of, or amendment or supplement to, the Proxy Statement will be made by the Company without providing Parent with
a reasonable opportunity to review and comment thereon. If, at any time prior to the Effective Time, any information relating to Parent
or the Company or any of their respective Affiliates, directors or officers should be discovered by Parent or the Company which should
be set forth in an amendment or supplement to the Proxy Statement, so that 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 are made,
not misleading, the party that discovers such information shall promptly notify the other parties hereto and an appropriate amendment
or supplement describing such information shall be prepared and, following a reasonable opportunity for the other party (and its counsel)
to review and comment on such amendment or supplement, promptly filed with the SEC and, to the extent required by applicable Law, disseminated
to the stockholders of the Company. Subject to applicable Law, the Company shall notify Parent promptly of the receipt of any written
or oral comments from the SEC or the staff of the SEC and of any request by the SEC or the staff of the SEC for amendments or supplements
to the Proxy Statement or for additional information and shall supply each other with copies of all correspondence between either party
or any of its Representatives, on the one hand, and the SEC or its staff, on the other hand, with respect to the Proxy Statement or the
Merger.
(b) Subject
to the earlier termination of this Agreement in accordance with Section 7.1, the Company shall, as soon as reasonably practicable,
duly call, give notice of, convene (on a date selected by the Company in consultation with Parent) and hold a meeting of its
stockholders (the “Company Stockholders’ Meeting”) for the purpose of seeking the Company Stockholder
Approval, and shall submit such proposal to such holders at the Company Stockholders’ Meeting and shall not submit any other
proposal to such holders in connection with the Company Stockholders’ Meeting without the prior written consent of Parent. The
Company in consultation with Parent shall set a record date for Persons entitled to notice of, and to vote at, the Company
Stockholders’ Meeting and shall not change such record date without the prior written consent of Parent and shall not adjourn
or otherwise postpone or delay such Company Stockholders’ Meeting without the prior written consent of Parent. If the Company
Board has not made a Company Adverse Recommendation Change, the Company shall, through the Company Board, make the Company
Recommendation, and shall include such Company Recommendation in the Proxy Statement, and use its reasonable best efforts to (i)
solicit from its stockholders proxies in favor of the adoption of this Agreement and (ii) take all other action necessary or
advisable to secure the Company Stockholder Approval. Notwithstanding any Company Adverse Recommendation Change, unless this
Agreement is terminated in accordance with its terms, the obligations of the parties hereunder shall continue in full force and
effect and such obligations shall not be affected by the commencement, public proposal, public disclosure or communication to the
Company of any Company Acquisition Proposal (whether or not a Company Superior Proposal). Notwithstanding the foregoing provisions
of this Section 5.2(b), if, on the date of the Company Stockholders’ Meeting, (i) the Company has not received proxies
representing a sufficient number of shares of Company Common Stock to obtain the Company Stockholder Approval, whether or not a
quorum is present, (ii) the Company does not have a sufficient number of shares of Company Common Stock represented (either in
person or by proxy) to constitute a quorum necessary to conduct the business of the Company Stockholders’ Meeting or (iii) the
Company Board has determined in good faith after consultation with outside counsel that it is advisable to allow reasonable
additional time for the filing and mailing of supplemental or amended disclosure to be disseminated and reviewed by the
Company’s stockholders prior to the Company Stockholders’ Meeting, which supplemental or amended disclosure has been
determined by the Company Board in good faith after consultation with outside counsel to be required by applicable Law, the Company
shall make one or more successive postponements or adjournments of the Company Stockholders’ Meeting (provided, that
without the prior written consent of Parent, the Company Stockholders’ Meeting shall not be postponed or adjourned to a date
that is more than 10 Business Days in the aggregate after the date for which the Company Stockholders’ Meeting was originally
scheduled (excluding any adjournments or postponements required by applicable Law)); provided, further, that the
Company Stockholders’ Meeting may not be postponed or adjourned on the date the Company Stockholders’ Meeting is
scheduled if the Company shall have received proxies in respect of an aggregate number of shares of Company Common Stock, which have
not been withdrawn, such that the Company Stockholder Approval will be obtained at such meeting.
Section 5.3
Appropriate Action; Consents; Filings.
(a) Subject
to the terms and conditions of this Agreement, the parties hereto will use their respective reasonable best efforts to consummate
and make effective the transactions contemplated by this Agreement and to cause the conditions to the Merger set forth in Article
VI to be satisfied, including using reasonable best efforts to accomplish the following: (i) the obtaining of all necessary
actions or non-actions, consents and approvals from Governmental Authorities or other Persons necessary in connection with the
consummation of the transactions contemplated by this Agreement, including the Merger, and the making of all necessary registrations
and filings (including filings with Governmental Authorities, if any) and the taking of all reasonable steps as may be necessary to
obtain an approval from, or to avoid a Proceeding by, any Governmental Authority or other Persons necessary in connection with the
consummation of the transactions contemplated by this Agreement, including the Merger, (ii) the defending of any lawsuits or other
legal Proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the transactions
contemplated by this Agreement, including the Merger, performed or consummated by such party in accordance with the terms of this
Agreement, including seeking to have any stay or temporary restraining order entered by any court or other Governmental Authority
vacated or reversed and (iii) the execution and delivery of any additional instruments reasonably necessary to consummate the Merger
and any other transactions to be performed or consummated by such party in accordance with the terms of this Agreement and to carry
out fully the purposes of this Agreement. Each of the parties hereto shall promptly (and in no event later than ten (10) days after
the date of this Agreement, unless otherwise agreed to by the parties) make its respective filings under the HSR Act, and thereafter
make any other applications and filings as reasonably determined by the Company and Parent under other applicable Antitrust Laws
with respect to the transactions contemplated by this Agreement as promptly as reasonably practicable (and in no event later than
thirty (30) days after the date of this Agreement, unless otherwise agreed to by the parties) in draft form. The Company and Parent
shall each pay fifty percent (50%) of all filing fees and other charges for the filings required under any Antitrust Law; provided,
that, for the avoidance of doubt, the Company and Parent shall each bear its own legal fees, including consultant fees, incurred in
connection with any applications and filings required under applicable Antitrust Laws.
(b)
Subject to Parent’s obligations in Section 5.3(d), in connection with and without limiting the efforts referenced
in Section 5.3(a), Parent shall, after reasonable consultation with the Company, have the right to devise, control and direct the
strategy and timing for, and make all decisions relating to (and shall take the lead in all meetings and communications with any Governmental
Authority relating to), any required submissions, responses to information requests and filings to any Governmental Authority or other
Person and obtaining any consent or approval of any Governmental Authority or other Person contemplated by this Section 5.3, including
resolving any Proceeding related to any such consent or approval and all matters relating to any Divestiture Actions, provided
that each of the parties hereto will (i) furnish to the other such necessary information and reasonable assistance as the other may request
in connection with the preparation of any governmental filings, submissions or other documents; (ii) give the other reasonable prior notice
of any such filing, submission or other document and of any substantive communication with or from any Governmental Authority regarding
the transactions contemplated by this Agreement, and permit the other to review and discuss in advance, and consider in good faith the
views, and secure the participation, of the other in connection with any such filing, submission, document or communication; and (iii)
cooperate in responding as promptly as reasonably practicable to any investigation or other inquiry from a Governmental Authority or in
connection with any Proceeding initiated by a Governmental Authority or private party, including informing the other party as soon as
practicable of any such investigation, inquiry or Proceeding, and consulting in advance before making any presentations or submissions
to a Governmental Authority, or, in connection with any Proceeding initiated by a private party, to any other Person. In addition, each
of the parties hereto will give reasonable notice to and consult with the other in advance of any meeting, conference, or Proceeding with
any Governmental Authority, or in connection with any Proceeding by a private party, with any other Person, and to the extent permitted
by the Governmental Authority or other Person, give the other the opportunity to attend and participate in such meeting, conference, or
Proceeding.
(c)
The parties shall consult with each other with respect to obtaining all permits and Consents necessary to consummate the transactions
contemplated by this Agreement, including the Merger.
(d) In
furtherance of and without limiting the efforts referenced in Section 5.3(a), Parent and the Company (if requested by
Parent), along with their respective Subsidiaries, shall take such action as may be necessary to avoid or eliminate each and every
impediment under any Antitrust Law that may be asserted by any Governmental Authority so as to enable the consummation of the Merger
as soon as reasonably practicable (and in any event no later than the Termination Date). In furtherance of the foregoing, Parent
shall agree to, and permit the Company to (i) sell, divest, hold separate, lease, license, transfer, dispose of, subject to conduct
remedies, otherwise encumber or impair or take any other action with respect to any assets, properties, businesses or product lines
of Parent or the Company or any of their respective Subsidiaries Affiliates (separately and, in the aggregate, “Antitrust
Action”), and (ii) in the event that any permanent or preliminary injunction or other Order is entered or becomes
reasonably foreseeable to be entered in any Proceeding that would make consummation of the Merger unlawful or that would otherwise
prevent or delay consummation of the Merger, take such actions as may be necessary to vacate, modify or suspend such injunction or
Order; provided that (x) no party hereto shall be required pursuant to this Section 5.3 to commit to or effect any
action that is not conditioned upon the consummation of the Merger and (y) Parent shall, after reasonable consultation with the
Company, control the decision to undertake and the process relating to any action contemplated above in this Section 5.3(d),
and the Company, if so requested by Parent, shall take any and all actions so requested by Parent, and for the avoidance of doubt,
the Company shall not, unless requested to do so by Parent, commit to or effect any action contemplated above in this Section
5.3(d). Without limiting the foregoing, Parent shall take all such action (including Antitrust Action) as may be necessary to
avoid or eliminate, and minimize the impact of, each and every impediment under any Antitrust Law that is asserted by any
Governmental Authority with respect to the Merger so as to enable the Closing to occur as soon as reasonably possible (and in any
event no later than the Termination Date and any extensions thereto).
(e)
Each of the parties hereto agrees that, from the date of this Agreement until the earlier of the Effective Time and the date, if
any, on which this Agreement is terminated in accordance with Section 7.1, it shall not, and shall ensure that none of their Subsidiaries
shall, consummate, enter into any agreement providing for, or announce, any investment, acquisition, divestiture, merger or other business
combination that would reasonably be expected to materially delay or prevent the consummation of the transactions contemplated by this
Agreement.
Section 5.4 Access
to Information; Confidentiality. From the date of this Agreement until the earlier of the Effective Time and the date, if any,
on which this Agreement is terminated in accordance with Section 7.1, upon reasonable notice, each party shall (and shall
cause each of its Subsidiaries to) afford reasonable access to the other party’s Representatives, during normal business
hours, to the personnel, advisors, properties, books and records of such party and its Subsidiaries and, during such period, shall
(and shall cause each of its Subsidiaries to) furnish reasonably promptly to such Representatives all information concerning the
business, properties and personnel of such party and its Subsidiaries, and to provide copies thereof, as may reasonably be
requested; provided, however, that nothing herein shall require a party or any of its Subsidiaries to disclose any
information to the other party if such disclosure would, in the reasonable judgment of the disclosing party, (i) violate applicable
Law or the provisions of any agreement to which such party or any of its Subsidiaries is a party or (ii) jeopardize any
attorney-client or other legal privilege; provided, further, that in each such case, the disclosing party shall cooperate
with the other party to enable it and its Representatives to enter into appropriate confidentiality, joint defense or similar
documents or arrangements so that it and its Representatives may have access to such information. No investigation or access
permitted pursuant to this Section 5.4 shall affect or be deemed to modify any representation, warranty, covenant or
agreement made by any party hereunder. All information furnished by a party, its Subsidiaries and its officers, employees and other
Representatives pursuant to this Section 5.4 shall be kept confidential in accordance with the Confidentiality Agreement. No
party hereto shall be deemed to violate any of its obligations under the Confidentiality Agreement as a result of performing any of
its obligations under this Agreement, including actions required by Section 5.3(d).
Section 5.5
No Solicitation by the Company.
(a)
From the date of this Agreement until the earlier of the Effective Time and the termination of this Agreement in accordance with
Section 7.1, except as provided in Section 5.5(b) or Section 5.5(d), (i) the Company shall, and shall cause its Subsidiaries
and its and their respective officers and directors to, immediately cease, and shall direct and use its reasonable best efforts to cause
its and their respective other Representatives to immediately cease, and cause to be terminated all existing discussions, negotiations
and communications with any Persons or entities with respect to any Company Acquisition Proposal (other than the transactions contemplated
by this Agreement); (ii) the Company shall not, and shall not authorize or permit any of its Representatives to, directly or indirectly
through another Person, (A) initiate, seek, solicit, knowingly facilitate, knowingly encourage (including by way of furnishing any non-public
information relating to the Company or any of its Subsidiaries), or knowingly induce the making, submission or announcement of any proposal
that constitutes, or would reasonably be expected to lead to, a Company Acquisition Proposal, (B) engage in negotiations or discussions
with, or provide any non-public information or non-public data to, or afford access to the properties, books and records of the Company
to, any Person (other than Parent or any of its Affiliates or Representatives) in connection with or in response to any Company Acquisition
Proposal or any proposal reasonably expected to lead to any Company Acquisition Proposal or grant any waiver or release under any standstill,
confidentiality or other agreement (except that if the Company Board determines in good faith, after consultation with its outside legal
counsel, that the failure to grant any waiver or release would reasonably be expected to be inconsistent with its fiduciary duties under
applicable Law, the Company may waive any such standstill provision in order to permit a third party to make a Company Acquisition Proposal),
(C) enter into any binding or non-binding letter of intent, agreement in principle, memorandum of understanding, merger agreement, acquisition
agreement, option agreement, joint venture agreement, partnership agreement or other agreement, commitment, arrangement or understanding
contemplating or otherwise in connection with, or that is intended to or would reasonably be expected to lead to, any Company Acquisition
Proposal, or (D) resolve to do any of the foregoing; (iii) the Company shall not provide and shall, within twenty-four (24) hours of execution
of this Agreement, terminate access of any third party to any data room (virtual or actual) containing any of the Company’s information;
and (iv) within twenty-four (24) hours of execution of this Agreement, the Company shall request the return or destruction of all confidential,
non-public information and materials provided to third parties that have, entered into confidentiality agreements relating to a possible
Company Acquisition Proposal with the Company or any of its Subsidiaries.
(b) Notwithstanding
the foregoing, if at any time after the date of this Agreement and prior to obtaining the Company Stockholder Approval, the Company
receives a bona fide written Company Acquisition Proposal from a third party and such Company Acquisition Proposal was not
initiated, sought, solicited, knowingly facilitated, knowingly encouraged, knowingly induced or otherwise procured in breach of this
Agreement, then the Company may (i) contact the Person who has made such Company Acquisition Proposal solely to clarify the terms of
such Company Acquisition Proposal so that the Company Board may inform itself about such Company Acquisition Proposal, (ii) furnish
information concerning its business, properties or assets to such Person pursuant to a confidentiality agreement with
confidentiality and standstill terms that, taken as a whole, are not materially less favorable to the Company than those contained
in the Confidentiality Agreement and (iii) negotiate and participate in discussions and negotiations with such Person concerning
such Company Acquisition Proposal, in the case of clauses (ii) and (iii), only if the Company Board determines in good faith, after
consultation with its outside financial advisors and outside legal counsel, that such Company Acquisition Proposal constitutes or is
reasonably likely to constitute or result in a Company Superior Proposal. The Company (A) shall promptly (and in any case within
twenty-four (24) hours) provide Parent notice (1) of the receipt of any Company Acquisition Proposal, which notice shall include a
complete, unredacted copy of all written proposals, written indications of interest or draft agreements relating to, or other
written materials that describe any of the terms and conditions of, such Company Acquisition Proposal, and (2) of any inquiries,
proposals or offers received by, any requests for non-public information from, or any discussions or negotiations initiated or
continued or sought to be initiated or continued with, the Company or any of its Representatives concerning a Company Acquisition
Proposal, and disclose the identity of the other party (or parties) and the terms of such inquiry, offer, proposal or request and,
in the case of written materials, provide copies of such materials, (B) shall promptly (and in any case within twenty-four (24)
hours) make available to Parent copies of all written materials provided by the Company to such party but not previously made
available to Parent and (C) shall keep Parent informed on a reasonably prompt basis (and, in any case, within twenty-four (24) hours
of any significant development) of the status and material details (including amendments and proposed amendments) of any such
Company Acquisition Proposal or other inquiry, offer, proposal or request.
(c)
Except as permitted by Section 5.5(d) or Section 5.5(e), neither the Company Board nor any committee thereof shall
(i) withdraw, qualify or modify, or publicly propose to withdraw, qualify or modify, the Company Recommendation, in each case in a manner
adverse to Parent or Merger Sub or (ii) adopt, approve, authorize, declare advisable or recommend or publicly propose to adopt, approve,
authorize, declare advisable or recommend, any Company Acquisition Proposal (any action described in the foregoing clauses (i) or (ii)
of this sentence being referred to as a “Company Adverse Recommendation Change”).
(d) If,
at any time after the date of this Agreement and prior to the receipt of the Company Stockholder Approval, the Company Board
receives a Company Acquisition Proposal that the Company Board determines in good faith, after consultation with its outside
financial advisors and outside legal counsel, constitutes a Company Superior Proposal that was not initiated, sought, solicited,
knowingly facilitated, knowingly encouraged, knowingly induced or otherwise procured in breach of this Agreement, the Company Board
may effect a Company Adverse Recommendation Change or terminate this Agreement pursuant to Section 7.1(c)(ii) in order to
enter into a definitive agreement with respect to such Company Superior Proposal if (A) the Company Board determines in good faith,
after consultation with its outside legal counsel, that the failure to take such action would reasonably be expected to be
inconsistent with its fiduciary duties under applicable Law; (B) the Company provides Parent with five (5) Business Days’
prior written notice of the Company Board’s intention to effect such a Company Adverse Recommendation Change or terminate this
Agreement pursuant to Section 7.1(c)(ii), which notice shall include the identity of the party (or parties) making such
Company Superior Proposal, the material terms of such Company Superior Proposal (including the price) and copies of the current
drafts of material agreements providing for such Company Superior Proposal; (C) for a period of five (5) Business Days following the
notice delivered pursuant to clause (B) of this Section 5.5(d), the Company shall have discussed and negotiated
in good faith and made the Company’s Representatives available to discuss and negotiate in good faith (in each case to the
extent Parent desires to negotiate) with Parent’s Representatives any proposed modifications to the terms and conditions of
this Agreement so that the failure to take such action would no longer reasonably be expected to be inconsistent with the fiduciary
duties of the Company Board under applicable Law (it being understood and agreed that any amendment to any material term or
condition of any Company Superior Proposal shall require a new notice and a new three (3)-Business Day negotiation period); and (D)
no earlier than the end of such negotiation period, the Company Board shall have determined in good faith, after consultation with
its outside legal counsel and after considering the terms of any proposed amendment or modification to this Agreement, that (x) the
Company Acquisition Proposal that is the subject of the notice described in clause (B) above still constitutes a Company Superior
Proposal and (y) the failure to take such action would still be reasonably expected to be inconsistent with its fiduciary duties
under applicable Law.
(e)
Other than in connection with a Company Superior Proposal (which shall be subject to Section 5.5(d) and shall not be subject
to this Section 5.5(e)), prior to obtaining the Company Stockholder Approval, the Company Board may, in response to a Company Intervening
Event, take any action prohibited by clause (i) of Section 5.5(c), only if (i) the Company Board determines in good faith, after
consultation with its outside legal counsel, that the failure to take such action would reasonably be expected to be inconsistent with
its fiduciary duties under applicable Law; (ii) the Company has notified Parent in writing that the Company Board intends to effect such
a Company Adverse Recommendation Change pursuant to this Section 5.5(e) (which notice shall specify the material facts and circumstances
providing the basis of the Company Intervening Event and for the Company Board’s determination to effect such a Company Adverse
Recommendation Change in reasonable detail); (iii) for a period of five (5) Business Days following the notice delivered pursuant to clause
(ii) of this Section 5.5(e), the Company shall have discussed and negotiated in good faith and made the Company’s Representatives
available to discuss and negotiate in good faith (in each case to the extent Parent desires to negotiate), with Parent’s Representatives
any proposed modifications to the terms and conditions of this Agreement so that the failure to take such action would no longer reasonably
be expected to be inconsistent with the fiduciary duties of the Company Board under applicable Law (it being understood and agreed that
any material change to the relevant facts and circumstances shall require a new notice and a new three (3)-Business Day negotiation period);
and (iv) no earlier than the end of such negotiation period, the Company Board shall have determined in good faith, after consultation
with its outside legal counsel and after considering the terms of any proposed amendment or modification to this Agreement, that the failure
to take such action would still be reasonably expected to be inconsistent with its fiduciary duties under applicable Law.
(f) Nothing
contained in this Agreement shall prohibit the Company or the Company Board from (i) disclosing to its stockholders a position
contemplated by Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act, or from issuing a “stop, look and listen”
statement pending disclosure of its position thereunder or (ii) making any disclosure to its stockholders if the Company Board
determines in good faith, after consultation with its outside legal counsel, that the failure of the Company Board to make such
disclosure would reasonably be expected to be inconsistent with its fiduciary duties under applicable Law; provided, however,
that (A) in no event shall this Section 5.5(f) affect the obligations specified in Section 5.5(d) or Section
5.5(e) and (B) any such disclosure (other than issuance by the Company of a “stop, look and listen” or similar
communication of the type contemplated by Rule 14d-9(f) under the Exchange Act) that addresses or relates to the approval,
recommendation or declaration of advisability by the Company Board with respect to this Agreement or a Company Acquisition Proposal
shall be deemed to be a Company Adverse Recommendation Change unless the Company Board in connection with such communication
publicly states that its recommendation with respect to this Agreement has not changed or refers to the prior recommendation of the
Company Board, without disclosing any Company Adverse Recommendation Change.
Section 5.6
Directors’ and Officers’ Indemnification and Insurance.
(a)
Without limiting any additional rights that any director or officer may have under any agreement or Company Benefit Plan, from
the Effective Time through the sixth anniversary of the date on which the Effective Time occurs, Parent shall cause the Surviving Corporation
to indemnify and hold harmless each present (as of the Effective Time) and former director and officer of the Company and its Subsidiaries
(the “D&O Indemnified Parties”) against all claims, losses, liabilities, damages, judgments, inquiries, fines and
reasonable fees, costs and expenses, including attorneys’ fees and disbursements incurred in connection with any Proceeding arising
out of or pertaining to the fact that such D&O Indemnified Party is or was an officer or director of the Company or any of its Subsidiaries
at or prior to the Effective Time (including with respect to this Agreement and the transactions and actions contemplated hereby), whether
asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable Law and the Certificate
of Incorporation or the Bylaws as at the date hereof; provided that no D&O Indemnified Party shall be entitled to indemnification
for any act or omission which constitutes fraud or willful misconduct by such D&O Indemnified Party. In the event of any such Proceeding,
(A) each D&O Indemnified Party shall be entitled to advancement of expenses incurred in the defense of any Proceeding from the Surviving
Corporation to the fullest extent permitted under applicable Law and the Certificate of Incorporation and the Bylaws as of the date hereof
provided that such D&O Indemnified Party first provides a written undertaking to repay such advances if it is ultimately determined
that such Person is not entitled to indemnification and (B) the Surviving Corporation shall not settle, compromise or consent to the entry
of any judgment in any Proceeding for which indemnification has been sought by such D&O Indemnified Party hereunder, unless such settlement,
compromise or consent includes an unconditional release of such D&O Indemnified Party from all liability arising out of such Proceeding
or such D&O Indemnified Party otherwise consents.
(b) Parent
and Merger Sub agree that all rights to indemnification and exculpation from liabilities, including advancement of expenses, for
acts or omissions occurring at or prior to the Effective Time now existing in favor of the D&O Indemnified Parties as provided
in the Certificate of Incorporation, the Bylaws or any indemnification Contract between such directors or officers and the Company
(in each case, as in effect on, and, in the case of any indemnification Contracts, to the extent made available to Parent prior to,
the date of this Agreement) shall survive the Merger and shall continue in full force and effect. For a period of six (6) years from
the Effective Time, the Surviving Corporation shall, and Parent shall cause the Surviving Corporation to, maintain in effect the
exculpation, indemnification and advancement of expenses equivalent to the provisions of the Certificate of Incorporation and Bylaws
as in effect immediately prior to the Effective Time with respect to acts or omissions occurring prior to the Effective Time and
shall not amend, repeal or otherwise modify any such provisions in any manner that would adversely affect the rights thereunder of
any D&O Indemnified Parties; provided, however, that all rights to indemnification in respect of any action
pending or asserted or any claim made within such period shall continue until the disposition of such action or resolution of such
claim. From and after the Effective Time, Parent shall guarantee and stand surety for, and shall cause the Surviving Corporation to
honor, in accordance with their respective terms, each of the covenants contained in this Section 5.6(b).
(c) Prior
to the Effective Time, the Company shall or, if the Company is unable to, Parent shall cause the Surviving Corporation as of or after
the Effective Time to, purchase a six (6)-year prepaid “tail” policy, with terms, conditions, retentions and limits of liability
that are no less favorable than the coverage provided under the Company’s existing policies of directors’ and officers’
liability insurance and fiduciary liability insurance, with respect to matters arising on or before the Effective Time (including in
connection with this Agreement and the transactions or actions contemplated by this Agreement), and Parent shall cause such policy to
be maintained in full force and effect, for its full term, and cause all obligations thereunder to be honored by the Surviving Corporation,
and no other party shall have any further obligation to purchase or pay for insurance hereunder; provided, however, that
the Company shall not pay, and the Surviving Corporation shall not be required to pay, in the aggregate, in excess of three hundred percent
(300%) of the last annual premium paid by the Company prior to the date of this Agreement in respect of such “tail” policy.
If the Company or the Surviving Corporation for any reason fails to obtain such “tail” insurance policy prior to, as of or
after the Effective Time, Parent shall, for a period of six (6) years from the Effective Time, cause the Surviving Corporation to maintain
in effect the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained
by the Company with respect to matters arising on or before the Effective Time; provided, however, that after the Effective
Time, Parent shall not be required to pay, in the aggregate, in excess of three hundred percent (300%) of the last annual premium paid
by the Company prior to the date of this Agreement in respect of the coverage required to be obtained pursuant hereto, but in such case
shall purchase as much coverage as reasonably practicable for such amount.
(d) The
covenants contained in this Section 5.6 are intended to be for the benefit of, and shall be enforceable by, each of the D&O
Indemnified Parties and their respective heirs and shall not be deemed exclusive of any other rights to which any such Person is entitled,
whether pursuant to Law, contract or otherwise.
(e) In
the event that Parent or the Surviving Corporation or any of their respective successors or assigns (i) 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 (ii) transfers
or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be
made so that the successors or assigns of Parent or the Surviving Corporation, as the case may be, shall assume the obligations set forth
in this Section 5.6.
Section 5.7 Notification
of Certain Matters. Subject to applicable Law, the Company shall give prompt notice to Parent, and Parent shall give prompt notice
to the Company, of (a) the occurrence or non-occurrence of any event whose occurrence or non-occurrence, as the case may be, would reasonably
be expected to cause, in the case of the Company, any condition set forth in Section 6.2 not to be satisfied, or in the case of
Parent, any condition set forth in Section 6.3 not to be satisfied, at any time from the date of this Agreement to the Effective
Time; (b) any notice or other communication received by such party from any Governmental Authority in connection with this Agreement,
the Merger or the other transactions contemplated by this Agreement, or from any Person alleging that the consent of such Person is or
may be required in connection with the Merger or the other transactions contemplated by this Agreement and (c) any claims, investigations
or Proceedings commenced or, to such party’s Knowledge, threatened against, relating to or involving or otherwise affecting such
party or any of its Subsidiaries that relate to this Agreement, the Merger or the other transactions contemplated by this Agreement.
Notwithstanding anything in this Agreement to the contrary, (i) no such notification shall affect the representations, warranties, covenants
or agreements of the parties hereto or the conditions to the obligations of the parties hereunder and (ii) failure by a party hereto
to comply with the obligations set forth in this Section 5.7 shall not result in the failure of the condition set forth in Section
6.2(b) (with respect to any non-compliance by the Company) or Section 6.3(b) (with respect to any non-compliance by Parent
or Merger Sub); provided, however, that the delivery of any notice pursuant to this Section 5.7 shall not cure any breach
of, or noncompliance with, any other provision of this Agreement or limit or otherwise affect the remedies available hereunder to the
party receiving such notice.
Section 5.8 Public
Disclosure. So long as this Agreement is in effect, neither Parent, nor the Company, nor any of their respective Affiliates, will
disseminate any press release or other public announcement or disclosure concerning this Agreement, the Merger or the other transactions
contemplated by this Agreement, except as may be required by Law or the rules of a national securities exchange, to the extent disclosed
in or consistent with the Proxy Statement or in connection with ordinary course communications regarding this Agreement and the transactions
contemplated hereby to their respective employees, without the prior consent of each of the other parties hereto, which consent shall
not be unreasonably withheld, conditioned or delayed. The Company shall consult with Parent prior to making any substantive communications
to its employees or other constituents with respect to this Agreement and the transactions contemplated hereby to the extent the substance
of such communications was not previously approved by Parent in connection with any prior communications, and shall consider in good
faith the reasonable comments proposed by Parent. The parties hereto have agreed to the text of the joint press release announcing the
execution of this Agreement. Notwithstanding any other provision of this Agreement, the requirements of this Section 5.8 shall
not apply to (i) any such press release or public announcement if the Company Board has effected any Company Adverse Recommendation Change
in accordance with this Agreement or (ii) any disclosure by the Company or Parent of any information concerning this Agreement, the Merger
or the other transactions contemplated by this Agreement in connection with a determination by (A) the Company in accordance with Section
5.5(b) or Section 5.5(d) that a Company Acquisition Proposal constitutes, or may constitute, a Company Superior Proposal,
or (B) any dispute between the parties regarding this Agreement, the Merger or the transactions contemplated by this Agreement; provided,
however, that in the case of either of clauses (i) or (ii), to the extent not prohibited by applicable Law, the disclosing party
gives the other party reasonable advance notice of (including the contents of) its intended release, announcement or disclosure.
Section 5.9 Employee
Matters.
(a) For
purposes of this Section 5.9, (i) the term “Covered Employees” shall mean employees who are actively employed
by the Company or any of its Subsidiaries immediately prior to the Effective Time; and (ii) the term “Continuation Period”
shall mean the period beginning at the Effective Time and ending on the date that is twelve months following the Effective Time.
(b) Subject
to any Labor Agreement that applies to the Covered Employees, during the Continuation Period or, if sooner, upon the termination of employment
of the applicable Covered Employee, Parent shall provide each Covered Employee with (i) base salaries no less than in effect immediately
prior to the Closing Date, (ii) annual cash target bonus (other than change in control and retention bonuses) and commission opportunities
no less than in effect immediately prior to the Closing Date, and (iii) employee benefits (excluding defined benefit pension plans, plans
providing for retiree medical benefits, plans that provide equity-based compensation and plans that provide for payments or benefits
upon a change in control), that are substantially comparable in the aggregate to either, as determined by Parent in its sole discretion:
(x) the employee benefits provided by Parent (or a Subsidiary thereof) to its similarly situated employees or (y) the employee benefits
provided by the Company or its Subsidiaries to Covered Employees under the Company Benefit Plans listed in Section 3.12(a) of
the Company Disclosure Letter as in effect immediately before the Effective Time. In addition, (i) during the one hundred twenty (120)
day period following the Closing, Parent shall provide each Covered Employee with severance benefits no less favorable than those provided
by the Company and its Subsidiaries immediately prior to the Effective Time and (i) following such one hundred twenty (120) day period
and for the remainder of the Continuation Period, Parent shall provide each Covered Employee with severance benefits on the same basis
that such severance benefits are made available to similarly situated employees of Parent (or a Subsidiary thereof).
(c) In the event any Covered Employee first becomes eligible to participate under any Parent Benefit Plan following the Effective Time,
Parent shall, or shall cause a Subsidiary of Parent to, for Covered Employees who become eligible during the calendar year including the
Effective Time, to (i) waive any preexisting condition exclusions and waiting periods with respect to participation and coverage requirements
applicable to any Covered Employee under any Parent Benefit Plan providing medical, dental or vision benefits to the same extent such
limitation would have been waived or satisfied under any similar Company Benefit Plan the Covered Employee participated in immediately
prior to coverage under the Parent Benefit Plan; and (ii) provide each Covered Employee with credit for any copayments and deductibles
paid prior to the Covered Employee’s coverage under any Parent Benefit Plan during the plan year in which the Effective Time occurs,
to the same extent such credit was given under any similar Company Benefit Plan that Covered Employee participated in immediately prior
to coverage under the Parent Benefit Plan, in satisfying any applicable deductible or out-of-pocket requirements under the Parent Benefit
Plan for the plan year in which the Effective Time occurs.
(d) As of the Effective Time, Parent shall recognize, or shall cause a Subsidiary of Parent to recognize, all service of each Covered
Employee prior to the Effective Time, to the Company (or any predecessor entities of the Company or any of its Subsidiaries) for vesting
and eligibility purposes (but not for benefit accrual purposes under any defined benefit pension plan) and for purposes of determining
future vacation accruals, retirement plan contributions and severance amounts to the same extent as such Covered Employee received, immediately
before the Effective Time, credit for such service under any similar Company Benefit Plan in which such Covered Employee participated
immediately prior to the Effective Time; provided that service of each Covered Employee prior to the Effective Times shall not
be recognized for the purpose of any entitlement to participate in, or receive benefits with respect to, any Parent retiree medical program
in which any Covered Employee participates after the Effective Times. In no event shall anything contained in this Section 5.9
result in any duplication of benefits for the same period of service.
(e) If
requested by Parent no later than five (5) Business Days prior to the Closing Date, each of the Company, its Subsidiaries and any Company
ERISA Affiliates shall terminate any and all Company Benefit Plans intended to include a Code Section 401(k) arrangement (each a “Company
401(k) Plan”), subject to the condition subsequent that the transactions contemplated by this Agreement shall be consummated.
If so requested by Parent, the Company shall provide Parent with evidence that such Company 401(k) Plan(s) have been terminated (effective
as of no later than the day immediately preceding the Closing Date and subject to the condition subsequent that the transactions contemplated
by this Agreement will be consummated) pursuant to resolutions of the Company Board or the board of directors of the applicable Subsidiaries
of the Company or such Company ERISA Affiliates, as the case may be. The form and substance of such resolutions and related plan amendments
shall be subject to review and approval by Parent, which approval shall not be unreasonably withheld or delayed. The Company also shall
take such other actions in furtherance of terminating such Company 401(k) Plan(s) as Parent may reasonably require if so requested. Upon
termination of the Company 401(k) Plan, Parent shall cause a tax-qualified defined contribution plan with a Code Section 401(k) arrangement
established or maintained by Parent or an affiliate (the “Parent 401(k) Plan”) to accept direct rollovers of eligible
rollover distributions (as defined in Section 402(c)(4) of the Code) by Covered Employees. The Company and Parent shall cooperate in
good faith to take any and all commercially reasonable actions needed to permit each Covered Employee with an outstanding loan balance
under the Company 401(k) Plan as of the date such plan is terminated to continue to make scheduled loan payments to the Company 401(k)
Plan after the Closing, pending the distribution and in-kind rollover of the promissory notes evidencing such loans from the Company
401(k) Plan to the Parent 401(k) Plan, as provided in the preceding sentence, such as to prevent, to the extent reasonably possible,
a deemed distribution or loan offset with respect to such outstanding loans.
(f) The
Company and its Subsidiaries shall satisfy all legal or contractual requirements to provide notice to, or to carry out any consultation
procedure with, any employee or groups of employees of the Company or any of its Subsidiaries, or any Labor Organization, which is representing
any employee of the Company or any of its Subsidiaries, in connection with the transactions contemplated by this Agreement.
(g) Upon Parent’s written request, which request shall be made at least five (5) Business Days prior to the Closing Date, the
Company Board shall adopt resolutions, no earlier than thirty (30) days prior to the Closing Date, to terminate the Company’s Deferred
Compensation Plan in accordance with the rules set forth in Treas. Reg. Section 1.409A-3(j)(4)(ix), and Parent shall cause the amounts
payable thereunder to be distributed as soon as reasonably practicable after the Closing Date.
(h) The
parties hereto acknowledge and agree that all provisions contained in this Section 5.9 with respect to employees of the Company
and its Subsidiaries are included for the sole benefit of the respective parties hereto and shall not create any right (i) in any other
Person, including employees, former employees, any participant or any beneficiary thereof, in any Company Benefit Plan, or (ii) to continued
employment with the Company, Parent or their respective Subsidiaries or Affiliates. Notwithstanding anything in this Section 5.9
to the contrary, nothing in this Agreement, whether express or implied, shall be treated as an amendment or other modification of any
Company Benefit Plan or any other employee benefit plans of the Company, Parent or any of their respective Subsidiaries or Affiliates
or shall prohibit Parent or any of its Subsidiaries or Affiliates from amending or terminating any employee benefit plan.
Section 5.10 Section
16 Matters. Prior to the Effective Time, Parent and the Company shall take all such steps as may be reasonably necessary or advisable
(to the extent permitted under applicable Law and no-action letters issued by the SEC) to cause any dispositions of Company Common Stock
(including derivative securities with respect to Company Common Stock) resulting from the transactions contemplated by this Agreement
by each individual who is subject to the reporting requirements of Section 16(a) of the Exchange Act with respect to the Company or will
become subject to such reporting requirements with respect to Parent, to be exempt under Rule 16b-3 promulgated under the Exchange Act,
to the extent permitted by applicable Law.
Section 5.11 Repayment,
Termination and Defeasance of Existing Indebtedness. At least five (5) Business Days prior to the Closing Date, the Company
shall use commercially reasonable efforts to deliver to Parent (i) an executed copy of a customary payoff letter from the agents
under the Existing Credit Agreement in form and substance reasonably satisfactory to Parent relating to the repayment in full of all
obligations thereunder or secured or guaranteed thereby, the termination of all commitments in connection therewith, the release of
all Encumbrances granted thereunder or securing the obligations thereunder and the release of all guarantees granted thereunder or
in connection therewith and (ii) final drafts of customary certificates and opinions, in form and substance reasonably satisfactory
to Parent, relating to and required for the defeasance and discharge all of the obligations under the Existing Indenture. The
Company shall use commercially reasonable efforts to, and shall use commercially reasonable efforts to cause its Subsidiaries to,
deliver to Parent (or to the agent or trustee, as applicable, under the Existing Credit Facilities, in the case of prepayment and
termination notices or deliverables related to defeasance) prior to the Closing, in form and substance reasonably satisfactory to
Parent, all the documents, filings and notices required for (i) the termination of commitments under the Existing Credit Agreement,
the release of all guarantees and other loan documents executed in connection therewith, and the release of all Encumbrances granted
in connection therewith, including the filing of UCC releases, termination of control agreements, and delivery of possessory
collateral, which shall in each case be subject to the occurrence of the Closing and the repayment in full of all obligations then
outstanding under the Existing Credit Facilities and (ii) the defeasance and discharge of all obligations under the Existing
Indenture and the release of all guarantees executed in connection therewith.
Section 5.12
Parent’s Financing Activities.
(a) Without
limiting the generality of Section 5.3 and Section 5.4, prior to the Closing, the Company shall use commercially reasonable
efforts to, and shall use commercially reasonable efforts to cause its Affiliates and its and their respective Representatives to, on
a timely basis, provide all reasonable cooperation requested by Parent, any of its Affiliates or Representatives or any Financing Source
in connection with the arrangement, marketing, syndication and consummation of the Debt Financing. Such cooperation shall, at the reasonable
request of Parent, any of its Affiliates or Representatives or any Financing Source, include the following:
(i) furnishing,
or causing to be furnished, to such Person, (A) audited balance sheets and related statements of operations, stockholders’ equity
and cash flows for the fiscal years ended December 31, 2020, December 31, 2019, December 31, 2018, and prior fiscal years if applicable,
and such further fiscal years ended at least sixty (60) days prior to the Closing Date and (B) unaudited balance sheets and related statements
of income and cash flows for each fiscal quarter ended after the close of its most recent fiscal year which are no more than one hundred
and thirty (130) days old at Closing, in the case of clauses (A) and (B), prepared in accordance with GAAP and reviewed (SAS 100) by
the Company’s accountants (with such review (x) including a review of the financial statements for the corresponding period in
the previous fiscal year and (y) being conducted in accordance with applicable accounting standards), together with all other historical
financial information and other customary information (and related management discussion and analysis prepared in connection therewith)
regarding the Company and its Affiliates as may be reasonably requested by Parent, any of its Affiliates or Representatives or any Financing
Source that may be required in order for Parent to complete and deliver pro forma financial statements, customary confidential information,
bank or offering memoranda or prospectuses, in connection with such financing (other than portions customarily provided by Financing
Sources), including the information required under any commitment letter, engagement letter or definitive financing document in connection
with the transactions contemplated by this Agreement or in connection with a customary offering of securities;
(ii) providing reasonable assistance to Parent for the preparation of pro forma financial information and projections required to consummate
the Debt Financing or to comply with applicable Law;
(iii) using
reasonable best efforts to secure the consent of the independent accountants of the Company and its Affiliates related to the financial
statements described in this Section 5.12;
(iv) requesting
that the Company’s and its Affiliates’ independent accountants participate in drafting sessions and accounting due diligence
sessions and cooperate with the Debt Financing, including requesting that they provide customary comfort letters (including “negative
assurance” comfort) to the extent required in connection with the marketing and syndication of the Debt Financing or as are customarily
required in an underwritten offering of securities;
(v) providing
reasonable assistance to Parent, its Affiliates and any Financing Source in their preparation of customary rating agency presentations,
road show materials, customary bank or co-investor information memoranda, prospectuses, bank syndication materials, credit agreements,
offering memoranda, private placement memoranda, definitive financing documents (as well as customary certificates), and similar or related
documents customarily prepared in connection with the Debt Financing, and which may incorporate by reference periodic and current reports
filed by the Company with the SEC;
(vi) reasonably
cooperating with customary marketing efforts and due diligence efforts of Parent, its Affiliates and any Financing Source for all or
any portion of the Debt Financing, including requesting its management team, with appropriate seniority and expertise, and external auditors
and advisors, to assist in preparation for and to participate in a reasonable number of meetings (including customary one-on-one meetings
with the parties acting as lead arrangers or agents for, and prospective lenders, underwriters, initial purchasers and purchasers of,
the financing), presentations, road shows, due diligence sessions, drafting sessions, and sessions with rating agencies, in each case,
upon reasonable notice and at mutually agreeable dates and times, and including, without limitation, virtual meetings;
(vii) using reasonable best efforts to ensure that any syndication or marketing effort in connection with the Debt Financing benefits
materially from any existing lending and investment banking relationship of the Company and its Affiliates;
(viii)
reasonably cooperating with any Financing Sources of Parent or any of Parent’s Affiliates in an evaluation of the assets
of the Company or any of its Subsidiaries for the purpose of establishing collateral arrangements in connection with the Debt Financing;
(ix) using
reasonable best efforts to deliver to Parent, no later than five (5) Business Days prior to the Closing Date (to the extent requested
no later than eight (8) Business Days prior to the Closing Date), any materials and documentation about the Company and its Subsidiaries
required under applicable “know your customer” and anti-money laundering rules, Laws and regulations (including the Uniting
and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 and 31 C.F.R. §
1010.230 regarding beneficial ownership requirements for legal entity customers);
(x) provide information concerning the Company and its Affiliates reasonably necessary for the completion of definitive agreements
for the Debt Financing, including any schedules thereto, and to the extent the Company or any of its Affiliates will become a party to
any such definitive agreement, provide (including using reasonable best efforts to obtain such documents from its advisors) customary
certificates (including solvency certificates), corporate authorizations and other customary closing documents and definitive agreements
as may be reasonably requested by Parent or the Financing Sources;
(xi) informing
Parent promptly in writing if the Company Board or a committee thereof, the Company’s chief financial officer or any other
executive officer of the Company concludes that any previously issued financial statements included or intended to be used in
connection with the Debt Financing should no longer be relied upon;
(xii) informing Parent promptly in writing if any member of the Company Board, the Company’s chief financial officer or any other
executive officer of the Company shall have knowledge of any facts as a result of which a restatement of any of the Company’s or
its Subsidiaries’ financial statements is probable; and
(xiii) reasonably cooperating with Parent and its Financing Sources in connection with (A) Parent’s efforts to obtain customary
corporate, facilities and securities ratings; (B) assisting Parent in obtaining opinions of the Company’s counsel; (C) providing
customary authorization letters to Parent’s Financing Sources; (D) providing customary authorizations for the use of the trademarks,
service marks and logos of the Company and its Affiliates; provided that such trademarks, service marks and logos are used in a
manner that is not intended to or reasonably likely to harm or disparage the Company or its Affiliates or the reputation or goodwill of
the Company or its Affiliates; (E) providing access to documents and other information in connection with continuing due diligence investigations;
and (F) the payoff of existing Indebtedness of the Company, whether in the form of a tender offer, change of control offer, redemption,
defeasance, satisfaction and discharge, consent solicitation, or otherwise; provided that (1) neither the Company nor any of its
Affiliates shall be required to pay any commitment or other similar fee in connection with any financing to be obtained by Parent or any
of Parent’s Affiliates in connection with the transactions contemplated by this Agreement (except to the extent Parent promptly
reimburses (in the case of ordinary course out-of-pocket costs and expenses) or provides the funding (in all other cases) to the Company
or such Affiliate of the Company therefor), (2) the effectiveness of any documentation executed by the Company with respect thereto, and
the attachment of any Encumbrance to any assets of the Company or any of its Subsidiaries, shall be subject to the consummation of the
Closing, (3) no director or officer of any the Company shall be required to execute any agreement, certificate, document or instrument
with respect to such financing that would be effective prior to the Closing (other than certifications of the financial statements and
customary authorization letters contemplated by clause (xiii) above), (4) the Company, its controlled Affiliates and their respective
Representatives shall be indemnified and held harmless by Parent from and against any and all liabilities, losses, damages, claims, interest,
awards, judgments and penalties suffered or incurred by them in connection with claims asserted by a Financing Source in connection with
the arrangement of such financing to the fullest extent permitted by Law and with appropriate contribution to the extent such indemnification
is not available, other than to the extent any such liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments
or penalties are the result of the fraud or willful misconduct of the Company, its Affiliates or their respective Representatives, and
(5) Parent shall promptly after termination of this Agreement in accordance with Section 7.1, upon written request by the Company,
reimburse the Company or any of its controlled Affiliates for all reasonable and documented out-of-pocket costs or expenses actually incurred
by each such Person in complying with their respective covenants pursuant to this Section 5.12. Parent acknowledges and agrees
that the obtaining of any such financing is not a condition to the Closing.
(b) All
non-public or other confidential information regarding the Company or its Affiliates obtained by Parent, its Affiliates, their Financing
Sources or their respective Representatives, in each case pursuant to this Section 5.12, shall be kept confidential in accordance
with the Confidentiality Agreement; provided that such information may be shared (i) on a non-public basis with Financing Sources
and prospective lenders and investors during syndication and marketing of any financing in connection herewith and participants in such
financing, in each case that enter into confidentiality arrangements customary for financing transactions of the same type as such financing
(including “click-through” confidentiality arrangements), and (ii) on a confidential basis with rating agencies; provided,
further, that the foregoing shall not prohibit such information from being included in bank or co-investor information memoranda, prospectuses,
bank syndication materials, offering memoranda and private placement memoranda (including under Rule 144A, Regulation S or a registered
offering under the Securities Act). The Company hereby consents to the reasonable use of the Company’s, its Affiliates’ trademarks,
service marks and logos in connection with any financing; provided that such trademarks, service marks and logos are used in a
manner that is not intended to or reasonably likely to harm or disparage the Company or its Affiliates or the reputation or goodwill
of the Company or its Affiliates, and on such other customary terms and conditions as shall be mutually agreed.
Section 5.13 Stock
Exchange Delisting; Deregistration. Prior to the Effective Time, the Company shall cooperate with Parent and use its reasonable best
efforts to take, or cause to be taken, all actions, and do or cause to be done all things, necessary, proper or advisable on its part
under Laws and rules and policies of the NYSE to cause the delisting of the Company and of the shares of Company Common Stock from the
NYSE as promptly as practicable after the Effective Time and the deregistration of the shares of Company Common Stock under the Exchange
Act as promptly as practicable after such delisting. The Company shall not cause the Company Common Stock to be delisted from the NYSE
prior to the Effective Time.
Section 5.14 Takeover
Laws. If any takeover statute becomes or is deemed to become applicable to the Company or the Merger or the other transactions contemplated
by this Agreement, then the Company Board shall use reasonable best efforts to take any and all actions necessary to render such statutes
inapplicable to the foregoing or otherwise minimize the effect of such takeover statute on the foregoing.
Section 5.15 Stockholder
Litigation. The Company shall give Parent prompt notice and the opportunity to participate in the defense or settlement of any Proceeding
brought by any stockholder against the Company and/or its directors or executive officers relating to this Agreement, the Merger and
the other transactions contemplated by this Agreement, whether commenced prior to or after the execution and delivery of this Agreement.
Parent shall give the Company prompt notice of, and shall consider in good faith the Company’s advice with respect to, any Proceeding
brought by any stockholder against Parent, Merger Sub and/or their respective directors or executive officers relating to this Agreement,
the Merger and the other transactions contemplated by this Agreement, whether commenced prior to or after the execution and delivery
of this Agreement. The Company agrees that it shall not settle or offer to compromise or settle any Proceeding commenced prior to or
after the date of this Agreement against the Company or any of its directors or executive officers by any stockholder of the Company
relating to this Agreement, the Merger, any other transaction contemplated by this Agreement or otherwise, without the prior written
consent of Parent.
Section 5.16 Resignations.
Prior to the Effective Time, upon Parent’s request, the Company shall use reasonable best efforts to cause any director or
officer of the Company and each of its Subsidiaries to execute and deliver a letter effectuating his or her resignation as a director
and/or officer, as applicable, of such entity effective as of the Effective Time.
Article
VI
CONDITIONS TO THE MERGER
Section 6.1 Conditions
to the Obligations of Each Party. The respective obligations of each party to consummate the Merger and the other transactions contemplated
by this Agreement are subject to the satisfaction or (to the extent permitted by Law) waiver by the Company and Parent at or prior to
the Closing of the following conditions:
(a) the Company shall have obtained the Company Stockholder Approval;
(b) (i) any applicable waiting period (and any extension thereof, including under any agreement between a party and a Governmental
Authority agreeing not to consummate the Merger prior to a certain date) under the HSR Act relating to the consummation of the Merger
shall have expired or early termination thereof shall have been granted and (ii) each Consent from a Governmental Authority required to
be obtained with respect to the Merger under any Antitrust Law set forth on Section 6.1(b) of the Company Disclosure Letter shall
have been obtained and shall remain in full force and effect;
(c) no
Governmental Authority of competent jurisdiction shall have issued or entered any Order after the date of this Agreement, and no Law
shall have been enacted or promulgated after the date of this Agreement, in each case, that (whether temporary or permanent) is then
in effect and has the effect of restraining, enjoining or otherwise prohibiting the consummation of the Merger or the other transactions
contemplated by this Agreement (any such Order or Law, a “Restraint”).
Section 6.2 Conditions
to Obligations of Parent and Merger Sub to Effect the Merger. The obligations of Parent and Merger Sub to effect the Merger and the
other transactions contemplated by this Agreement are subject to the satisfaction or (to the extent permitted by Law) waiver by Parent
at or prior to the Closing of the following additional conditions:
(a) the
representations and warranties of the Company (i) contained in Section 3.2(a) shall be true and correct in all respects (other
than de minimis inaccuracies) both as of the date of this Agreement and as of the Closing Date as though made on and as of the
Closing Date (except to the extent such representations and warranties are expressly made as of a specific date, in which case such representations
and warranties shall be so true and correct as of such specific date), (ii) contained in Section 3.2(b), Section 3.2(c),
Section 3.2(d), Section 3.3, Section 3.4 and Section 3.26 (together with Section 3.2(a), the “Company
Fundamental Representations”) shall be true and correct in all material respects, without giving effect to any materiality
or “Company Material Adverse Effect” qualifications therein, both as of the date of this Agreement and as of the Closing
Date as though made on and as of the Closing Date (except to the extent such representations and warranties are expressly made as of
a specific date, in which case such representations and warranties shall be so true and correct as of such specific date) and (iii) contained
in this Agreement (other than the Company Fundamental Representations), shall be true and correct, without giving effect to any materiality
or “Company Material Adverse Effect” qualifications therein, both as of the date of this Agreement and as of the Closing
Date as though made on and as of the Closing Date (except to the extent such representations and warranties are expressly made as of
a specific date, in which case such representations and warranties shall be so true and correct as of such specific date), except 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 have, a Company Material Adverse Effect;
(b) the
Company shall have performed or complied in all material respects with its obligations required under this Agreement to be performed
or complied with on or prior to the Closing;
(c) since
the date of this Agreement, there shall not have been any event, circumstance, occurrence, effect, fact, development or change that,
individually or in the aggregate, has had, or would reasonably be expected to have, a Company Material Adverse Effect; and
(d) Parent shall have received a certificate signed by an executive officer of the Company certifying as to the matters set forth in
Section 6.2(a), Section 6.2(b) and Section 6.2(c).
Section 6.3 Conditions
to Obligation of the Company to Effect the Merger. The obligation of the Company to effect the Merger and the other transactions
contemplated by this Agreement is subject to the satisfaction or (to the extent permitted by Law) waiver by the Company at or prior to
the Closing of the following additional conditions:
(a) the
representations and warranties of Parent and Merger Sub (i) contained in Section 4.2 and Section 4.7, (the “Parent
Fundamental Representations”) shall be true and correct in all material respects, without giving effect to any materiality
or “Parent Material Adverse Effect” qualifications therein, both as of the date of this Agreement and as of the Closing Date
as though made on and as of the Closing Date (except to the extent such representations and warranties are expressly made as of a specific
date, in which case such representations and warranties shall be so true and correct as of such specific date) and (ii) contained in
this Agreement (other than the Parent Fundamental Representations) shall be true and correct, without giving effect to any materiality
or “Parent Material Adverse Effect” qualifications therein, both as of the date of this Agreement and as of the Closing Date
as though made on and as of the Closing Date (except to the extent such representations and warranties are expressly made as of a specific
date, in which case such representations and warranties shall be so true and correct as of such specific date), except 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 have, a Parent Material Adverse Effect;
(b) Parent
and Merger Sub shall have performed or complied in all material respects with each of their respective obligations required under this
Agreement to be performed or complied with on or prior to the Closing;
(c) since
the date of this Agreement, there shall not have been any event, circumstance, occurrence, effect, fact, development or change that,
individually or in the aggregate, has had, or would reasonably be expected to have, a Parent Material Adverse Effect; and
(d) the
Company shall have received a certificate signed by an executive officer of Parent certifying as to the matters set forth in Section
6.3(a), Section 6.3(b) and Section 6.3(c).
Section 6.4 Frustration of Closing Conditions. Neither Parent nor Merger Sub may rely on the failure of any condition set forth in Section
6.1 or Section 6.2 to be satisfied if such failure was primarily caused by the failure of Parent or Merger Sub to perform any
of their respective material obligations under this Agreement. The Company may not rely on the failure of any condition set forth in Section
6.1 or Section 6.3 to be satisfied if such failure was primarily caused by its failure to perform any of its material obligations
under this Agreement.
Article
VII
TERMINATION, AMENDMENT AND WAIVER
Section 7.1 Termination.
Notwithstanding anything contained in this Agreement to the contrary, this Agreement may be terminated at any time prior to the Effective
Time, whether before or after the Company Stockholder Approval is obtained (except as otherwise expressly noted), as follows:
(a) by
mutual written consent of each of Parent and the Company; or
(b) by
either Parent or the Company, if:
(i) the
Merger shall not have been consummated on or before July 14, 2022 (the “Termination Date”); provided, however,
that if, on the Termination Date, the conditions to the Closing set forth in Section 6.1(b) or Section 6.1(c) (solely to
the extent any such Restraint is in respect of an Antitrust Law) shall not have been fulfilled but all other conditions to the Closing
set forth in Article VI have been waived or fulfilled (other than those conditions that by their terms cannot be satisfied prior
to the Closing, but which conditions would be satisfied if the Closing occurred on such date), then the Termination Date shall automatically,
without any action on the part of the parties hereto, be extended to January 14, 2023; provided, further, that the right to terminate
this Agreement pursuant to this Section 7.1(b)(i). shall not be available to any party if a material breach by such
party of any of its obligations under this Agreement has been the cause of or resulted in the failure of the Closing to have occurred
on or before the Termination Date;
(ii) (A)
prior to the Effective Time, any Governmental Authority of competent jurisdiction shall have issued or entered any Order after the
date of this Agreement or any Law shall have been enacted or promulgated after the date of this Agreement that has the effect of
permanently restraining, enjoining or otherwise prohibiting the Merger or the other transactions contemplated by this Agreement, and
in the case of such an Order, such Order shall have become final and non-appealable or (B) any Consent from a Governmental Authority
required to be obtained pursuant to Section 6.1(b) shall have become incapable of being obtained prior to the Termination
Date; provided, however, that the right to terminate this Agreement under this Section 7.1(b)(ii) shall not be
available to a party if a material breach by such party of its obligations under Section 5.3 has been the cause of or
resulted in the issuance of such Order or the failure to obtain such Consent; or
(iii) the
Company Stockholder Approval shall not have been obtained upon a vote taken thereon at the Company Stockholders’ Meeting duly convened
therefor or at any adjournment or postponement thereof.
(c) by
the Company if:
(i) Parent
or Merger Sub shall have breached or failed to perform any of their respective representations, warranties, covenants or other agreements
set forth in this Agreement, which breach or failure to perform (A) would result in the failure of a condition set forth in Section
6.3(a) or Section 6.3(b) and (B) is not capable of being cured by Parent or Merger Sub, as applicable, by the Termination
Date or, if capable of being cured, shall not have been cured by Parent or Merger Sub on or before the earlier of (x) the Termination
Date and (y) the date that is thirty (30) calendar days following the Company’s delivery of written notice to Parent of such breach
or failure to perform; provided, however, that the Company shall not have the right to terminate this Agreement pursuant
to this Section 7.1(c)(i) if the Company is then in material breach of any of its obligations under this Agreement so as to result
in the failure of a condition set forth in Section 6.2(b); or
(ii) prior
to obtaining the Company Stockholder Approval, the Company Board shall have authorized the Company to enter into a definitive agreement
with respect to a Company Superior Proposal and the Company enters into such definitive agreement concurrently with its termination of
this Agreement, but only if (A) the Company is permitted to terminate this Agreement to accept a Company Superior Proposal pursuant to,
and subject to its compliance with the applicable terms and conditions of, Section 5.5(d) and (B) as a condition to the effectiveness
of such termination, the Company pays to Parent the Company Termination Fee prior to or simultaneously with such termination.
(d) by
Parent if:
(i) the
Company shall have breached or failed to perform any of its representations, warranties, covenants or other agreements set forth in this
Agreement, which breach or failure to perform (A) would result in the failure of a condition set forth in Section 6.2(a) or Section
6.2(b) and (B) is not capable of being cured by the Company by the Termination Date or, if capable of being cured, shall not have
been cured by the Company on or before the earlier of (x) the Termination Date and (y) the date that is thirty (30) calendar days following
Parent’s delivery of written notice to the Company of such breach or failure to perform; provided, however, that
Parent shall not have the right to terminate this Agreement pursuant to this Section 7.1(d)(i) if Parent or Merger Sub is then
in material breach of any of its obligations under this Agreement so as to result in the failure of a condition set forth in Section
6.3(b); or
(ii) the Company Board shall have made a Company Adverse Recommendation Change, the Company shall have failed to include in the Proxy
Statement the Company Recommendation or the Company shall have materially violated or breached any of its obligations under Section
5.5.
Section 7.2 Effect
of Termination. In the event that this Agreement is terminated and the Merger abandoned pursuant to Section 7.1, written notice
thereof shall be given by the terminating party to the other party, specifying the provisions hereof pursuant to which such termination
is made, and this Agreement shall forthwith become null and void and of no effect without liability on the part of any party hereto,
and all rights and obligations of any party hereto shall cease; provided, however, that, except as otherwise provided in
Section 7.3, no such termination shall relieve any party hereto of any liability or damages resulting from any willful breach
of this Agreement prior to such termination or fraud; and provided, further, that the Confidentiality Agreement, this Section
7.2, Section 7.3, Section 7.4 and Article VIII shall survive any termination of this Agreement pursuant to Section
7.1.
Section 7.3 Termination
Fees.
(a) If this Agreement is terminated by:
(i) Parent
pursuant to Section 7.1(d)(i) on the basis of a breach of a covenant or agreement contained in this Agreement or either Parent
or the Company pursuant to Section 7.1(b)(i) or Section 7.1(b)(iii) and in any such case (A) prior to such termination
(or prior to the Company Stockholders’ Meeting in the case of termination pursuant to Section 7.1(b)(iii)), a Company Acquisition
Proposal that has been made after the date of this Agreement shall have been publicly disclosed and not publicly withdrawn prior to such
date and (B) within twelve (12) months after such termination, a Company Acquisition Proposal is consummated or the Company enters into
a definitive agreement with respect to a Company Acquisition Proposal (provided, however, that for purposes of this Section
7.3(a)(i), the references to “twenty percent (20%)” in the definition of Company Acquisition Proposal shall be deemed
to be references to “fifty percent (50%)”);
(ii) Parent pursuant to Section 7.1(d)(ii) (or pursuant to any other provision of Section 7.1 if Parent was then entitled
to terminate this Agreement pursuant to Section 7.1(d)(ii)); or
(iii) the
Company pursuant to Section 7.1(c)(ii);
then, in each such case, the Company
shall pay, or cause to be paid, to Parent the Company Termination Fee. Any payments required to be made under this Section 7.3(a)
shall be made by wire transfer of same day funds to the account or accounts designated by Parent, (x) in the case of clause (i) above,
on the earlier of the date of consummation of, or entry into a definitive agreement with respect to, such Company Acquisition Proposal,
(y) in the case of clause (ii) above, promptly, but in no event later than three (3) Business Days after the date of such termination
and (z) in the case of clause (iii) above, immediately prior to or concurrently with the termination of this Agreement.
(b) In
the event this Agreement is terminated by either Parent or the Company pursuant to Section 7.1(b)(iii), then the Company
shall pay Parent the reasonable and documented out-of-pocket costs and expenses, including all fees and expenses incurred in
connection with the Debt Financing and the fees and expenses of counsel, accountants, investment bankers, experts and consultants,
incurred by Parent and Merger Sub in connection with this Agreement and the transactions contemplated by this Agreement in an amount
not to exceed $20,000,000 (the “Parent Expenses”); provided that any payment of the Parent Expenses shall
not affect Parent’s right to receive any Company Termination Fee otherwise due under Section 7.3(a), but shall reduce,
on a dollar for dollar basis, any Company Termination Fee that becomes due and payable under Section 7.3(a). Any Parent
Expenses required to be paid by the Company under this Section 7.3(a) shall be made by wire transfer of immediately available
funds promptly, but in no event later than three (3) Business Days after the Company’s receipt of documentation supporting
such Parent Expenses.
(c) Notwithstanding anything to the contrary set forth in this Agreement, the parties agree that in no event shall the Company be required
to pay the Company Termination Fee on more than one occasion.
(d) Notwithstanding
anything to the contrary set forth in this Agreement, Parent’s right to receive payment from the Company of the Company Termination
Fee pursuant to Section 7.3(a) and/or the right to receive payment of the Parent Expenses pursuant to Section 7.3(a), shall,
in circumstances in which the Company Termination Fee or Parent Expenses (as applicable) are owed, constitute the sole and exclusive
monetary remedy (other than Parent’s right, after having received the Parent Expenses, to receive the Company Termination Fee less
the Parent Expenses in the circumstances expressly contemplated in Section 7.3(a)) of Parent and Merger Sub against the Company
and its Subsidiaries and any of their respective former, current or future general or limited partners, stockholders, members, managers,
directors, officers, employees, agents, Representatives or assignees (collectively, the “Company Related Parties”)
for all losses and damages suffered as a result of the failure of the transactions contemplated by this Agreement to be consummated or
for a breach or failure to perform hereunder or otherwise, and upon payment of such amounts, none of the Company Related Parties shall
have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated by this Agreement
(except that the Company shall also be obligated with respect to any amounts owing pursuant to Section 7.3(e)(ii)).
(e) Each
of the parties hereto acknowledges that (i) the agreements contained in this Section 7.3 are an integral part of the transactions
contemplated by this Agreement, and (ii) without these agreements, the parties would not enter into this Agreement; accordingly, if the
Company or Parent, as applicable, fails to timely pay any amount due pursuant to this Section 7.3 and, in order to obtain such
payment, Parent or the Company, as applicable, commences a suit that results in a judgment against the other for the payment of any amount
set forth in this Section 7.3, the Company or Parent, as applicable, shall pay the other its costs and expenses in connection
with such suit (including reasonable attorneys’ fees), together with interest on such amount at an annual rate equal to the prime
rate as published in The Wall Street Journal in effect on the date such payment was required to be made through the date such payment
was actually received, or such lesser rate as is the maximum permitted by applicable Law.
Section 7.4 Parent
Payment. If the Merger does not occur, upon the valid termination of this Agreement pursuant to (a) Section 7.1(d) or Section
7.1(c)(ii), the Company shall, within five (5) Business Days of such termination, reimburse Parent for the Middleby Termination Fee
(if any) paid by Parent.
Section 7.5 Amendment. This Agreement may
be amended by mutual agreement of the parties hereto in writing at any time before or after receipt of the Company Stockholder Approval;
provided, however, that after the Company Stockholder Approval has been obtained, there shall not be any amendment that
by applicable Law or in accordance with the rules of any stock exchange requires further approval by the stockholders of the Company,
as applicable, without such further approval of such stockholders nor any amendment or change not permitted under applicable Law. Notwithstanding
anything to the contrary contained herein, none of Section 5.12, this Section 7.5, Section 8.1, Section 8.6,
Section 8.8, Section 8.9, Section 8.10, Section 8.11, Section 8.12, Section 8.13, or Section
8.14 (and any other provision of this Agreement to the extent an amendment, supplement, waiver or other modification of such provision
would modify the substance of such Sections) may be amended, supplemented, waived or otherwise modified in any manner that is adverse
in any respect to any Financing Source Party without the prior written consent of the Financing Sources.
Section 7.6
Extension; Waiver. At any time prior to the Effective Time, subject to applicable Law, any party hereto may (a) extend the
time for the performance of any obligation or other act of any other party hereto, (b) waive any inaccuracy in the representations and
warranties of the other party contained herein or in any document delivered pursuant hereto and (c) waive compliance with any agreement
or condition contained herein. Any such extension or waiver shall only be valid if set forth in an instrument in writing signed by the
party or parties to be bound thereby. Notwithstanding the foregoing, no failure or delay by the Company, Parent or Merger Sub in exercising
any right hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise
of any other right hereunder. Any agreement on the part of a party hereto to any such extension or waiver shall be valid only if set forth
in an instrument in writing signed on behalf of such party.
Article
VIII
GENERAL PROVISIONS
Section 8.1
Non-Survival of Representations and Warranties. The representations and warranties in this Agreement and in any certificate
delivered pursuant hereto by any Person and the covenants and agreements in this Agreement shall terminate at the Effective Time, other
than those covenants and agreements which by their terms apply, or are to be performed in whole or in part, after the Effective Time.
Section 8.2
Expenses. Except as expressly set forth herein (including Section 7.3) and for the Middleby Termination Fee, which
Parent has caused to be paid on behalf of the Company, all expenses incurred in connection with this Agreement and the transactions contemplated
by this Agreement shall be paid by the party incurring such expenses, whether or not the Merger are consummated.
Section 8.3
Notices. All notices, consents and other communications hereunder shall be in writing and shall be given (and shall be deemed
to have been duly given upon receipt) by hand delivery, by prepaid overnight courier (providing written proof of delivery) or by electronic
mail (providing written confirmation of receipt), addressed as follows:
if to Parent, Acquiror or Merger Sub:
c/o Ali Group North America Corporation
101 Corporate Woods Parkway
Vernon Hills, Illinois 60061
Attention: Filippo Berti, President and Chief Executive Officer
Email: fberti@aligroup.com
with a copy (which shall not constitute notice) to:
Alston & Bird LLP
101 South Tryon Street, Suite 4000
Charlotte, North Carolina 28280-4000
Attention: C. Mark Kelly, Justin R. Howard, Dennis O. Garris
Email: mark.kelly@alston.com; justin.howard@alston.com;
dennis.garris@alston.com
if to the Company:
Welbilt, Inc.
2227 Welbilt Boulevard
New Port Richey, Florida 34655
Attention: William C. Johnson, President and Chief Executive
Officer
Email: Bill.Johnson@welbilt.com
with a copy (which shall not constitute notice) to:
Gibson, Dunn & Crutcher LLP
200 Park Avenue
New York, New York 10166
Attention: Barbara L. Becker, Saee M. Muzumdar
Email: bbecker@gibsondunn.com, smuzumdar@gibsondunn.com
or to such other address or electronic
mail address as shall be specified in a notice given in accordance with this Section 8.3; provided that any notice received
by electronic mail or otherwise at the addressee’s location on any Business Day after 5:00 P.M. (addressee’s local time) or
on any day that is not a Business Day shall be deemed to have been received at 9:00 A.M. (addressee’s local time) on the next Business
Day; provided, further, that notice of any change to the address or any of the other details specified in or pursuant to
this Section 8.3 shall not be deemed to have been received until, and shall be deemed to have been received upon, the later of
the date specified in such notice or the date that is five (5) Business Days after such notice would otherwise be deemed to have been
received pursuant to this Section 8.3.
Section 8.4
Interpretation; Certain Definitions.
(a) The
parties have participated collectively in the negotiation and drafting of this Agreement. In the event an ambiguity or question of
intent or interpretation arises, this Agreement shall be construed as if drafted collectively by the parties, and no presumption or
burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any provisions of this Agreement. The
parties agree that any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not
be applied in the construction or interpretation of this Agreement.
(b)
The words “hereof,” “herein,” “hereby,” “hereunder” and “herewith”
and words of similar import shall refer to this Agreement as a whole and not to any particular provision of this Agreement. References
to articles, sections, paragraphs, exhibits, annexes and schedules are to the articles, sections and paragraphs of, and exhibits, annexes
and schedules to, this Agreement, unless otherwise specified, and the table of contents and headings of the articles, sections or subsections
in this Agreement are for reference purposes only and shall not define, limit, construe or describe the scope or extent of such section,
or affect in any way the meaning or interpretation of this Agreement. Whenever the words “include,” “includes”
or “including” are used in this Agreement, they shall be deemed to be followed by the phrase “without limitation.”
All definitions set forth herein are deemed applicable whether the words defined are used herein in the singular or in the plural and
correlative forms of defined terms have corresponding meanings. Words denoting any gender shall be deemed to include all genders, words
denoting natural persons shall be deemed to include business entities and vice versa and references to a Person are also to its predecessors
and permitted successors and assigns. The word “or” is not exclusive and has the inclusive meaning represented by the phrase
“and/or”. The phrases “the date of this Agreement” and “the date hereof” and terms or phrases of similar
import shall be deemed to refer to July 14, 2021, unless the context requires otherwise. References to any information or document being
“made available” or “furnished” and words of similar import (i) when used in reference to anything made available
to Parent, Merger Sub or their Representatives shall include such information or document having been posted to the online data room hosted
on behalf of the Company by Datasite under the name “Project Shelby,” and (ii) when used in reference to anything made available
to the Company or its Representatives shall include such information or document having been posted to the online data room hosted on
behalf of Parent by Firmex under the name “Project Shelby,” in each case, at least one day prior to the date of this Agreement.
Terms defined in the text of this Agreement have such meaning throughout this Agreement (regardless of whether it appears before or after
the place where it is defined), unless otherwise indicated in this Agreement, and all terms defined in this Agreement shall have such
meanings when used in any exhibit, schedule, certificate or other document made or delivered pursuant hereto unless otherwise defined
therein. Any Law defined or referred to herein or in any agreement or instrument that is referred to herein means such Law as from time
to time amended, modified or supplemented, including (in the case of statutes) by succession of comparable successor Laws (provided
that for purposes of any representations and warranties contained in this Agreement that are made as of a specific date or dates, references
to any statute shall be deemed to refer to such statute, as amended, and to any rules or regulations promulgated thereunder, in each case,
as of such date). All references to “dollars” or “$” refer to currency of the United States.
Section 8.5
Severability. If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction
or other authority to be invalid, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions of this Agreement
shall remain in full force and effect and shall in no way be affected, impaired or invalidated. Upon such determination that any term
or other provision is invalid, illegal or incapable of being enforced, the parties hereto shall negotiate in good faith to modify this
Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the
Merger be consummated as originally contemplated to the fullest extent possible.
Section 8.6 Assignment.
Neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned by any of the parties hereto (whether
by operation of Law or otherwise) without the prior written consent of the other parties, except that (i) Merger Sub may assign any or
all of its rights, interests and obligations hereunder and Acquiror may assign the capital stock of Merger Sub to one or more direct
or indirect wholly owned Subsidiaries of Parent, or a combination thereof so long as such assignment would not delay, impair or prevent
consummation of the Merger or otherwise have a Parent Material Adverse Effect and (ii) Parent and its Subsidiaries may pledge this Agreement
and their rights hereunder to the extent required by the Debt Financing. Subject to the preceding sentence, this Agreement will be binding
upon, inure to the benefit of and be enforceable by the parties and their respective permitted successors and assigns. Any attempted
assignment in violation of this Section 8.6 shall be null and void.
Section 8.7 Entire Agreement. This Agreement (including the exhibits, annexes and appendices hereto) constitutes, together with the
Confidentiality Agreement, the Company Disclosure Letter and the Parent Disclosure Letter, the entire agreement, and supersedes all other
prior agreements and understandings, both written and oral, among the parties, or any of them, with respect to the subject matter hereof.
Section 8.8 No Third-Party Beneficiaries. This Agreement is not intended to and shall not confer upon any Person other than the parties
hereto any rights or remedies hereunder; except (a) that it is specifically intended that the D&O Indemnified Parties (with respect
to Section 5.6 and this Section 8.8 from and after the Effective Time) are intended third-party beneficiaries hereof, (b)
from and after the Effective Time, for the rights of holders of shares of Company Common Stock to receive the Merger Consideration set
forth in Article II, (c) from and after the Effective Time, for the rights of holders of Company Options, Company Restricted Stock,
Company RSUs, Company Director RSUs and Company PSUs to receive the payments contemplated by the applicable provisions of Section 2.3
in accordance with the terms and conditions of this Agreement and (d) in respect of the Financing Source Parties under Section 7.5,
this Section 8.8, Section 8.9, Section 8.11 and Section 8.13.
Section 8.9
Governing Law. This Agreement and all Proceedings (whether based on contract, tort or otherwise) arising out of or relating
to this Agreement or the actions of Parent, Merger Sub or the Company in the negotiation, administration, performance and enforcement
thereof, shall be governed by, and construed in accordance with, the Laws of the State of Delaware, without giving effect to any choice
or conflict of laws provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of
the Laws of any jurisdiction other than the State of Delaware. Notwithstanding anything herein to the contrary, the parties hereto agree
that any claim, controversy or dispute of any kind or nature (whether based upon contract, tort or otherwise) involving any Financing
Source or any other Financing Source Party that is any way related to this Agreement or the Debt Commitment Letter or any of the transactions
contemplated by this Agreement or the Debt Commitment Letter, including but not limited to any dispute arising out of or relating in any
way to the Debt Financing in connection with the transactions contemplated by this Agreement or any document relating to the Debt Financing
shall be governed by, and construed in accordance with, the laws of the State of New York, without giving effect to any choice of law
or conflict of law rules or provisions (whether of the State of New York or any other jurisdiction) that would cause the application of
the laws of any jurisdiction other than the State of New York.
Section 8.10
Specific Performance. The parties agree that irreparable damage for which monetary damages, even if available, would not be an
adequate remedy, would occur in the event that any party hereto does not perform the provisions of this Agreement (including failing
to take such actions as are required of it hereunder to consummate this Agreement) in accordance with its specified terms or otherwise
breach such provisions. Accordingly, the parties acknowledge and agree that, prior to any termination of this Agreement in accordance
with Section 7.1, the parties shall be entitled to an injunction, specific performance and other equitable relief to prevent breaches
of this Agreement and to enforce specifically the terms and provisions hereof, in addition to any other remedy to which they are entitled
at law or in equity. Each of the parties agrees that it will not oppose the granting of an injunction, specific performance and other
equitable relief on the basis that any other party has an adequate remedy at law or that any award of specific performance is not an
appropriate remedy for any reason at law or in equity. Any party seeking an injunction or injunctions to prevent breaches of this Agreement
and to enforce specifically the terms and provisions of this Agreement shall not be required to provide any bond or other security in
connection with any such order or injunction.
Section 8.11
Consent to Jurisdiction.
(a)
Each of the parties hereto hereby, with respect to any legal claim or Proceeding arising out of this Agreement or the transactions
contemplated by this Agreement, (i) expressly and irrevocably submits, for itself and with respect to its property, generally and unconditionally,
to the exclusive jurisdiction of the Delaware Court of Chancery and any appellate court therefrom within the State of Delaware (or, if
the Delaware Court of Chancery does not have jurisdiction over a particular matter, any state or federal court within the State of Delaware),
(ii) agrees that it will not attempt to deny or defeat such personal jurisdiction by motion or other request for leave from any such courts,
(iii) agrees that it will not bring any claim or Proceeding relating to this Agreement or the transactions contemplated by this Agreement
except in such courts and (iv) waives, to the fullest extent it may legally and effectively do so, and agrees not to assert, by way of
motion or as a defense, counterclaim or otherwise, any objection which it may now or hereafter have to the laying of venue in such courts
of any claim or Proceeding arising out of or relating to this Agreement. Notwithstanding the foregoing, each of Parent, Merger Sub and
the Company agrees that a final and nonappealable judgment in any Proceeding shall be conclusive and may be enforced in other jurisdictions
by suit on the judgment or in any other manner provided by Law.
(b)
Each party irrevocably consents to the service of process in any claim or Proceeding with respect to this Agreement and the transactions
contemplated by this Agreement or for recognition and enforcement of any judgment in respect hereof brought by any other party hereto
may be made by mailing copies thereof by registered or certified United States mail, postage prepaid, return receipt requested, to its
address as specified in or pursuant to Section 8.3 and such service of process shall be sufficient to confer personal jurisdiction
over such party in such claim or Proceeding and shall otherwise constitute effective and binding service in every respect.
(c) Notwithstanding
the foregoing, each of the parties irrevocably and unconditionally (on behalf of itself and the Company Related Parties and the
Parent Related Parties, as applicable) (i) agrees that it will not bring or support any action, cause of action, claim, cross-claim
or third-party claim of any kind or description, whether in law or in equity, whether in contract or in tort or otherwise, against
any Financing Source or any other Financing Source Party in any way arising out of or relating to this Agreement, including any
dispute arising out of or relating in any way to the Debt Financing or the Debt Commitment Letters, in any forum other than the
United States District Court for the Southern District of New York located in the borough of Manhattan in the City of New York, or
if such court does not have jurisdiction, the Supreme Court of the State of New York, New York County, (ii) waives any objection to
the laying of venue of any such suit, action or other proceeding in any court set forth in the preceding sentence, and (iii) agrees
not to plead or claim in any such court the defense of an inconvenient forum to the maintenance of such suit, action or
proceeding.
Section 8.12
Counterparts. This Agreement may be executed in multiple counterparts, all of which shall together be considered one and
the same agreement. Delivery of an executed signature page to this Agreement by electronic transmission shall be as effective as delivery
of a manually signed counterpart of this Agreement.
Section 8.13
Exculpation. Notwithstanding anything to the contrary contained in this Agreement, neither Parent nor any Parent Related
Party shall have any rights or claims against any Financing Source Party in connection with this Agreement, the Debt Financing or the
transactions contemplated by this Agreement, whether at law or in equity, in contract, in tort or otherwise, and neither Company nor any
Company Related Party shall seek to recover any money damages (including consequential, special, indirect or punitive damages, or damages
on account of a willful and material breach); provided, however, that the foregoing will not limit the rights of Parent or any other party
to the Debt Financing under the Debt Commitment Letters (or any alternative financing commitments) thereto. No Financing Source Party
shall have any rights or claims against the Company or any Company Related Party in connection with this Agreement, the Debt Financing
or the transactions contemplated by this Agreement, whether at law or in equity, in contract, in tort or otherwise. Notwithstanding anything
to the contrary contained in this Agreement, none of the Parent, any Parent Related Party, the Company or any Company Related Party shall
have any claims against any director or officer of the Company in connection with this Agreement, the Debt Financing or the transactions
contemplated by this Agreement, whether at law or in equity, in contract, in tort or otherwise, and none of the Company or any Company
Related Party shall seek to recover any money damages (including consequential, special, indirect or punitive damages, or damages on account
of a willful and material breach).
Section 8.14 Waiver of Jury Trial. EACH OF PARENT, MERGER SUB AND THE COMPANY HEREBY
IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE)
BETWEEN ANY OF THEM ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE ACTIONS OF PARENT, MERGER SUB OR THE COMPANY IN THE NEGOTIATION,
ADMINISTRATION, PERFORMANCE AND ENFORCEMENT THEREOF, INCLUDING WITH RESPECT TO ANY PROCEEDING OR COUNTERCLAIM THAT INVOLVES THE FINANCING
SOURCES OR THE DEBT COMMITMENT LETTER.
[Remainder of page intentionally left blank;
signature page follows.]
IN WITNESS WHEREOF,
Parent, Acquiror, Merger Sub and the Company have caused this Agreement to be executed as of the date first written above by their respective
officers thereunto duly authorized.
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ALI HOLDINGS S.R.L.
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By:
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/s/ Filippo Berti
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Name:
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Filippo Berti
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Title:
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Chairman and Chief Executive Officer
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ALI GROUP NORTH AMERICA CORPORATION
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By:
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/s/ Filippo Berti
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Name:
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Filippo Berti
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Title:
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Chairman and Chief Executive Officer
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ASCEND MERGER CORP.
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By:
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/s/ Filippo Berti
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Name:
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Filippo Berti
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Title:
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Chairman and Chief Executive Officer
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Signature Page to Merger Agreement
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WELBILT, INC.
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By:
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/s/ William C. Johnson
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Name:
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William C. Johnson
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Title:
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President and Chief Executive Officer
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Signature Page to Merger Agreement
APPENDIX A
DEFINITIONS
As used in this
Agreement, the following terms shall have the following meanings:
“Affiliate”
shall mean, with respect to any Person, any other Person that directly, or indirectly through one or more intermediaries, Controls,
is Controlled by, or is under common Control with, the Person specified.
“Business
Day” shall mean any day other than a Saturday, Sunday or a day on which all banking institutions in New York, New York are authorized
or obligated by Law or executive order to close.
“Code”
shall mean the Internal Revenue Code of 1986, as amended.
“Company
Acquisition Proposal” shall mean a proposal, offer or inquiry from any Person providing for any (i) merger, consolidation, share
exchange, business combination, recapitalization or similar transaction involving the Company, pursuant to which any such Person would
own or control, directly or indirectly, twenty percent (20%) or more of the voting power of the Company, (ii) sale, lease, license, dissolution
or other disposition, directly or indirectly, of assets of the Company (including the capital stock or other equity interests of any of
its Subsidiaries) or any Subsidiary of the Company representing twenty percent (20%) or more of the consolidated assets, net revenues
or net income of the Company and its Subsidiaries taken as a whole, or to which twenty percent (20%) or more of the net revenues, net
income or assets of the Company and its Subsidiaries, taken as a whole, are attributable, (iii) issuance or sale or other disposition
of capital stock or other equity interests representing twenty percent (20%) or more of the voting power of the Company or any of its
Subsidiaries whose business constitutes twenty percent (20%) or more of the net revenues, net income or assets of the Company and its
Subsidiaries, taken as a whole, (iv) tender offer, exchange offer or any other transaction or series of transactions in which any Person
will acquire, directly or indirectly, beneficial ownership or the right to acquire beneficial ownership of capital stock or other equity
interests representing twenty percent (20%) or more of the voting power of the Company or any of its Subsidiaries whose business constitutes
twenty percent (20%) or more of the net revenues, net income or assets of the Company and its Subsidiaries, taken as a whole, or (v) any
combination of the foregoing.
“Company
Data” means all Personal Data Processed by the Company or any of its Subsidiaries.
“Company
Director RSU” shall mean an award of Company RSUs held by a non-employee member of the Company Board granted under the Company
Equity Plan.
“Company
Disclosure Letter” shall mean the disclosure letter delivered by the Company to Parent simultaneously with the execution of
this Agreement.
“Company
Equity Awards” shall mean the Company Options, Company Restricted Stock, Company RSUs, Company PSUs and Company Director RSUs
granted under the Company Equity Plan.
“Company
Equity Plan” shall mean the Welbilt, Inc. 2016 Omnibus Incentive Plan, as amended from time to time, and any other equity or
equity-based plan, program, or arrangement of the Company or any of its Subsidiaries or any predecessor thereof.
“Company
ERISA Affiliate” shall mean any Person under common control with the Company within the meaning of Section 414(b), Section 414(c),
Section 414(m) or Section 414(o) of the Code, and the regulations issued thereunder.
“Company
Intervening Event” shall mean a material event or circumstance that was not known or reasonably foreseeable to the Company Board
on the date of this Agreement (or if known, the material consequences of which were not known or reasonably foreseeable to the Company
Board as of the date of this Agreement), which event or circumstance, or any consequence thereof, becomes known to the Company Board prior
to the Company Stockholder Approval; provided that in no event shall any inquiry, offer or proposal that constitutes or would reasonably
be expected to lead to a Company Acquisition Proposal constitute a Company Intervening Event.
“Company
Material Adverse Effect” shall mean any event, circumstance, occurrence, effect, fact, development or change that (a)
would prevent or materially impair the ability of the Company to consummate the Merger or (b) has, or would have, a material adverse
effect on the business, financial condition or results of operations of the Company and its Subsidiaries, taken as a whole; provided, however,
that for purposes of this clause (b), none of the following (or the results thereof) shall constitute or be taken into account in
determining whether a Company Material Adverse Effect shall have occurred: (i) changes in general economic, financial market,
regulatory, business, financial, political, geopolitical, credit or capital market conditions, including interest or exchange rates;
(ii) general changes or developments in any of the industries or markets in which the Company or any of its Subsidiaries operate;
(iii) changes in any applicable Laws or accounting regulations or principles or interpretations thereof; (iv) any change in the
price or trading volume of the Company’s securities or other financial instruments or change in the Company’s credit
rating, in and of itself (provided, however, that the facts or occurrences giving rise to or contributing to such
change that are not otherwise excluded from the definition of “Company Material Adverse Effect” may constitute or be
taken into account in determining whether a Company Material Adverse Effect has occurred); (v) any failure by the Company to meet
its internal or published projections, budgets, plans or forecasts of its revenues, earnings or other financial performance or
results of operation or any published analyst or other third-party estimates or expectations of the Company’s revenue,
earnings or other financial performance or results of operations for any period, in and of itself (provided, however,
that the facts or occurrences giving rise to or contributing to such failure that are not otherwise excluded from the definition of
“Company Material Adverse Effect” may constitute or be taken into account in determining whether a Company Material
Adverse Effect has occurred); (vi) acts of war (whether or not declared), hostilities, military actions or acts of terrorism, or any
escalation or worsening of the foregoing, weather related events, fires, natural disasters, pandemics (including the existence and
impact of the COVID-19 pandemic), public health or other emergencies or any other acts of God; (vii) the execution and delivery of
this Agreement or the public announcement or the pendency of the Merger or the other transactions contemplated hereby
(provided, that this clause (vii) does not apply with respect to the representations and warranties set forth in Section
3.5); or (viii) the taking of any action expressly required by this Agreement (other than any obligation under this Agreement to
operate in the ordinary course of business (or similar obligation) pursuant to Section 5.1); provided, further,
that the exceptions in clauses (i), (ii), (iii) and (vi) shall not apply to the extent the events, circumstances, occurrences,
effects, facts, developments or changes set forth in such clauses have a disproportionate impact on the Company and its
Subsidiaries, taken as a whole, relative to the other participants in the industries in which the Company and its Subsidiaries
operate.
“Company
Option” shall mean each option to purchase shares of Company Common Stock under the Company Equity Plan.
“Company
PSU” shall mean each award of performance stock units granted pursuant to a Company Equity Plan or otherwise that vests on the
basis of time and the achievement of performance targets and pursuant to which the holder has a right to receive shares of Company Common
Stock following the vesting or lapse of restrictions applicable to such performance stock unit.
“Company
Recommendation” shall mean the recommendation of the Company Board that the stockholders of the Company adopt this Agreement
and approve the transactions contemplated by this Agreement, including the Merger.
“Company
Restricted Stock” shall mean any outstanding shares of Company Common Stock that are unvested or subject to a risk of forfeiture
or repurchase option in favor of the Company and granted under the Company Equity Plan.
“Company
RSU” shall mean each award of restricted stock units constituting the right to be issued a share of Company Common Stock upon
vesting granted under the Company Equity Plan that is not a Company Director RSU.
“Company
Superior Proposal” shall mean a bona fide unsolicited written Company Acquisition Proposal (provided that for purposes
of this definition references to twenty percent (20%) in the definition of “Company Acquisition Proposal” shall be deemed
to be references to fifty percent (50%)) which the Company Board determines in good faith (i) to be reasonably likely to be consummated
on the terms proposed on a timely basis if accepted and (ii) to be more favorable to the Company’s stockholders from a financial
point of view than the Merger and the other transactions contemplated by this Agreement, in each case, taking into account at the time
of determination all relevant circumstances, including the various legal, financial and regulatory aspects of the proposal, all the terms
and conditions of such proposal and this Agreement, and any changes to the terms of this Agreement offered by the Company in response
to such Company Acquisition Proposal in accordance with Section 5.5(d).
“Company
Termination Fee” shall mean $110,000,000.
“Confidentiality
Agreement” shall mean the confidentiality agreement, dated May 29, 2021, between Parent and the Company.
“Contract”
shall mean any written or oral contract, subcontract, arrangement, lease, sublease, conditional sales contract, purchase order,
sales order, license, indenture, note, bond, loan, instrument, understanding, permit, concession, franchise, commitment,
partnership, limited liability company or other agreement.
“Control”
shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of
a Person, whether through the ownership of voting securities or partnership or other interests, by Contract or otherwise. The terms “Controlling”
and “Controlled” shall have correlative meanings.
“COVID-19”
shall mean the COVID-19 or SARS-CoV-2 virus (or any evolution, mutation or variation thereof).
“Customs
and International Trade Authorizations” shall mean any and all Consents, licenses, registrations, filings, and other approvals
or notifications required pursuant to the Customs and International Trade Laws.
“Customs
and International Trade Laws” shall mean the export control, Sanctions, import, customs, trade and anti-boycott Laws of any
jurisdiction in which the Company or any of its Subsidiaries is incorporated or does business, including the Tariff Act of 1930, as amended,
and other Laws administered or enforced by the U.S. Department of Commerce, U.S. Department of State, U.S. International Trade Commission,
U.S. Customs and Border Protection, U.S. Immigration and Customs Enforcement, and their predecessor or successor agencies, including the
Export Control Reform Act of 2018 and the Export Administration Regulations, including related restrictions with regard to transactions
involving Persons on the U.S. Department of Commerce Denied Persons List, Unverified List or Entity List; the Arms Export Control Act,
as amended and the International Traffic in Arms Regulations, including related restrictions with regard to transactions involving Persons
on the Debarred List; the anti-boycott Laws administered by the U.S. Department of Commerce; and the anti-boycott Laws administered by
the U.S. Department of the Treasury.
“Delaware
Secretary of State” shall mean the Secretary of State of the State of Delaware.
“Divestiture
Action” shall mean any divestiture, sale, license or other disposition, or subjection to any hold-separate order, of assets,
properties, businesses or product lines of Parent, the Company, or any of their respective Affiliates.
“Encumbrance”
shall mean any lien, pledge, hypothecation, charge, mortgage, deed of trust, security interest, encumbrance, easement, right of way,
adverse claim of ownership or use, title defect, conditional sale agreement, assignment by way of security, lease, sublease, claim, infringement,
interference, option, right of first refusal or preemptive right (including any restriction on the voting of any security, any restriction
on the transfer of any security or other asset, any restriction on the receipt of any income derived from any asset, any restriction on
the use of any asset and any restriction on the possession, exercise or transfer of any other attribute of ownership of any asset), whether
arising by contract, as a matter of law, by judicial process or otherwise.
“Environmental
Laws” shall mean all applicable Laws relating to pollution or protection of the environment, natural resources or human
health and safety, including Laws relating to Releases of Hazardous Materials and the manufacture, processing, distribution, use,
treatment, storage, Release, transport or handling of Hazardous Materials, including the Federal Water Pollution Control Act (33
U.S.C. §1251 et seq.), the Resource Conservation and Recovery Act of 1976 (42 U.S.C. §6901 et seq.), the Safe Drinking
Water Act (42 U.S.C. §3000(f) et seq.), the Toxic Substances Control Act (15 U.S.C. §2601 et seq.), the Clean Air Act (42
U.S.C. §7401 et seq.), the Oil Pollution Act of 1990 (33 U.S.C. §2701 et seq.), the Comprehensive Environmental Response,
Compensation and Liability Act of 1980 (42 U.S.C. §9601 et seq.), the Endangered Species Act of 1973 (16 U.S.C. §1531 et
seq.), and other similar foreign, state and local Laws.
“ERISA”
shall mean the Employee Retirement Income Security Act of 1974, as amended.
“Exchange
Act” shall mean the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“Existing
Credit Agreement” shall mean the Credit Agreement, dated as of March 3, 2016, among the Company, as borrower, the subsidiary
borrowers party thereto from time to time, the lenders party thereto, and JPMorgan Chase Bank, N.A., as administrative agent, as amended,
restated, supplemented or otherwise modified prior to the date of this Agreement.
“Existing
Credit Facilities” shall mean the Existing Credit Agreement and the Existing Indenture.
“Existing
Indenture” shall mean the Indenture, dated as of February 18, 2016, among MTW Foodservice Escrow Corp., as issuer, the guarantors
party thereto from time to time, and Wells Fargo Bank, National Association, as trustee.
“Financing
Source Parties” means, collectively, the Financing Sources, their current or future Affiliates and such Persons’ and their
Affiliates’ respective current, former and future directors, officers, general or limited partners, shareholders, members, managers,
controlling persons, employees, advisors, agents, attorneys, accountants, consultants, other representatives or funding sources, and the
respective successors and assigns of each of the foregoing.
“Foreign
Plan” shall mean Company Benefit Plans that are subject to any Law other than U.S., federal, state or local law.
“GAAP”
shall mean the United States generally accepted accounting principles, consistently applied.
“Governmental
Authority” shall mean any United States (federal, state or local) or foreign government, or any governmental, regulatory, judicial
or administrative authority, agency or commission.
“Hazardous
Materials” shall mean (i) any material, substance, chemical, or waste (or combination thereof) that (A) is listed,
defined, designated, regulated or classified as hazardous, toxic, radioactive, dangerous, a pollutant, a contaminant, petroleum,
oil, or words of similar meaning or effect under any Law relating to pollution, waste, or the environment or (B) can form the basis
of any liability under any Law relating to pollution, waste, or the environment; and (ii) any petroleum, petroleum products, per-
and polyfluoroalkyl substances (including PFAs, PFOA, PFOS, Gen X, and PFBs), polychlorinated biphenyls (PCBs), asbestos and
asbestos-containing materials, radon, mold, fungi and other substances, including related precursors and breakdown products.
“HSR Act”
shall mean the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, and the rules and regulations thereunder.
“Indebtedness”
of any Person shall mean (i) any indebtedness or other obligation for borrowed money, whether current, short term or long term and
whether secured or unsecured, (ii) any indebtedness evidenced by a note, bond, debenture or other Security or similar instrument, (iii)
any liabilities or obligations with respect to interest rate, currency or commodity swaps, collars, caps and similar hedging obligations,
(iv) all obligations as lessee under any lease of (or other agreement conveying the right to use) any real or personal property, or a
combination thereof which have been or should be recorded as liabilities on a balance sheet of such Person in accordance with GAAP (but
excluding, for the avoidance of doubt, any operating or real estate leases of such Person), (v) any obligations, contingent or otherwise,
under letters of credit, bankers’ acceptances, bank guarantees, surety bonds and similar instruments (in each case for this clause
(v), whether or not drawn or utilized), (vi) any obligations of such Person to pay the deferred purchase or acquisition price for any
property of such Person or any services received by such Person, including, in any such case, “earnout” payments, (vii) indebtedness
of any partnership in which the Company or any of its Subsidiaries or Parent or any of its Subsidiaries, as applicable, is a general partner
unless such debt is made expressly non-recourse to such Person, (viii) penalties, breakages, “make whole amounts” and other
similar obligations relating to the foregoing, and (ix) Indebtedness of others as described in the foregoing clauses (i) through (viii)
above in any manner guaranteed by such Person or for which such Person is or may become contingently liable; but Indebtedness does not
include accounts payable to trade creditors, or accrued expenses arising in the ordinary course of business consistent with past practice,
in each case, that are not yet due and payable, or are being disputed in good faith, and the endorsement of negotiable instruments for
collection in the ordinary course of business.
“Intellectual
Property” means all intellectual property rights and all other intangible proprietary information throughout the world, including
all patents, invention disclosures and industrial designs (including any continuations, divisionals, continuations-in-part, renewals,
reissues, re-examinations, substitutions and extensions thereof), trademarks, trade names, service marks, designs, trade dress, logos,
slogans, Internet domain names, and other similar designations of source or origin together with the goodwill symbolized by the foregoing,
copyrights, copyrightable subject matter, authors’ rights, moral rights, schematics, technology, know-how, trade secrets, confidential
information, methods, procedures, techniques, ideas, concepts, discoveries, proprietary processes, formulae, algorithms, models, methodologies,
databases, customer lists, supplier lists, specifications, design notes, logic diagrams, flow charts, operating instructions, technical
data, technical and user manuals, quality control information, sales and customer support materials, technologies and research and development
information, and Software, in each case whether patentable or unpatentable and whether or not reduced to practice, registrations and applications
in any jurisdiction related to the foregoing, all documents, records and files related to the foregoing, and rights to sue for past, present
and future infringement, misappropriation or other violation thereof.
“IRS”
shall mean the United States Internal Revenue Service.
“Knowledge”
shall mean the actual knowledge of each of the following officers and employees of the Company or Parent, as applicable, after reasonable
inquiry by each such person: (i) for the Company: William C. Johnson, Martin D. Agard, Joel H. Horn, Richard N. Caron, Jennifer Gudenkauf
and Philip Dei Dolori; and (ii) for Parent: Filippo Berti and Bradford D. Willis.
“Law”
shall mean any domestic, federal, state, municipal, local, national, supranational, foreign or other statute, law (whether statutory
or common law), constitution, code, ordinance, rule, administrative interpretation, regulation, order, writ, judgment, decree, directive
(including those of any self-regulatory organization), arbitration award, agency requirement, license, permit, standard, binding guideline
or policy or any other enforceable requirement of any Governmental Authority.
“Middleby
Confidentiality Agreement” shall mean the confidentiality agreement, dated December 13, 2020, between Middleby and the Company.
“NYSE”
shall mean the New York Stock Exchange.
“OFAC”
shall mean the Office of Foreign Assets Control of the U.S. Department of the Treasury.
“Order”
shall mean any decree, order, judgment, injunction, temporary restraining order or other order in any Proceeding by or with any Governmental
Authority.
“Parent
Benefit Plan” shall mean (i) each material “employee benefit plan” (as such term is defined in Section 3(3) of ERISA),
whether written or unwritten, that Parent, any of its Subsidiaries adopted, maintains, sponsors, participates in, is a party or contributes
to or with respect to which Parent or any of its Subsidiaries could reasonably be expected to have any material liability; and (ii) each
other material employment or employee benefit plan, program, practice, policy, arrangement or agreement, whether written or unwritten,
including any equity option, equity purchase, equity appreciation right or other equity or equity-based incentive, cash bonus or incentive
compensation, employment, change in control, retention, retirement or supplemental retirement, deferred compensation, profit-sharing,
unemployment, severance, termination pay, welfare, hospitalization or medical, life, accidental death and dismemberment, long- or short-term
disability, fringe benefit or other similar compensation or employee benefit plan, program, practice, policy, arrangement or agreement
for any current or former employee or director of, or other individual service provider to, Parent or any of its Subsidiaries that does
not constitute an “employee benefit plan” (as defined in Section 3(3) of ERISA), that Parent or any of its Subsidiaries adopted,
maintains, sponsors, participates in, is a party or contributes to, or with respect to which Parent or any of its Subsidiaries could reasonably
be expected to have any material liability.
“Parent
Disclosure Letter” shall mean the disclosure letter delivered by Parent to the Company simultaneously with the execution of
this Agreement.
“Parent
Material Adverse Effect” shall mean any event, circumstance, occurrence, effect, fact, development or change that would prevent
or materially impair the ability of Parent to consummate the Merger.
“Parent
Organizational Documents” shall mean the certificate of incorporation and bylaws, each as amended as of the date of this Agreement,
of each of Parent and Merger Sub.
“Parent
Related Parties” shall mean Parent and its Subsidiaries and any of their respective former, current or future general or limited
partners, stockholders, members, managers, directors, officers, employees, agents, Representatives or assignees.
“Permitted
Encumbrance” shall mean (i) any Encumbrance for Taxes not yet due or that are being contested in good faith by appropriate Proceedings
and for which adequate accruals or reserves have been established in accordance with GAAP, (ii) statutory Encumbrances of landlords and
Encumbrances of carriers, warehousemen, mechanics, materialmen, repairmen and other Encumbrances arising in the ordinary course of business
and securing amounts not yet due or that are being contested in good faith by appropriate Proceedings and for which adequate accruals
or reserves have been established in accordance with GAAP, (iii) Encumbrances incurred or deposits made in the ordinary course of business
in connection with workers’ compensation, unemployment insurance or other types of social security or foreign equivalents, (iv)
zoning, building codes, and other land use Laws regulating the use or occupancy of leased real property or the activities conducted thereon
that are imposed by any Governmental Authority having jurisdiction over such leased real property and that are not violated by the current
use and operation of such leased real property or the operation of (a) in the case of the Company and its Subsidiaries, the business of
the Company and its Subsidiaries or (b) in the case of Parent and its Subsidiaries, the business of Parent and its Subsidiaries, (v) with
respect to all leased real property, all Encumbrances encumbering the interest of the fee owner or any superior lessor, sublessor or licensor,
(vi) with respect to any real property, Encumbrances that are recorded in a public record or other imperfections of title, in each case,
that do not and would not reasonably be expected to, individually or in the aggregate, materially adversely affect the value of the assets
to which they relate, or impair the continued use and operation of the assets to which they relate in (a) in the case of the Company and
its Subsidiaries, the business of the Company and its Subsidiaries as currently conducted or (b) in the case of Parent and its Subsidiaries,
the business of Parent and its Subsidiaries as currently conducted, (vii) nonmonetary Encumbrances, if any, that do not, and would not
reasonably be expected to, individually or in the aggregate, materially adversely affect the value of the assets to which they relate,
or impair the continued use and operation of the assets to which they relate in (a) in the case of the Company and its Subsidiaries, the
business of the Company and its Subsidiaries as currently conducted or (b) in the case of Parent and its Subsidiaries, the business of
Parent and its Subsidiaries as currently conducted, (viii) in the case of Intellectual Property, non-exclusive licenses of rights entered
into in the ordinary course of business, (ix) encumbrances granted by Parent or its Subsidiaries in connection with the Debt Financing,
and (x) any other Encumbrances that will be released on or prior to the Closing Date.
“Person”
shall mean an individual, a corporation, a limited liability company, a partnership, an association, a trust or any other entity or
organization, including a Governmental Authority.
“Personal
Data” means a natural Person’s (including an end user’s or an employee’s) name, street address, telephone
number, e-mail address, photograph, social security number, driver’s license number, passport number, payment card number, bank
information, biometric identifiers, geolocation, or user or account number or any other piece of information that allows the identification
of a natural Person or is otherwise considered personally identifiable information or personal data under applicable Law.
“Privacy
Commitments” means (i) each Law applicable to the protection or Processing or both of Personal Data, including, without limitation
the California Consumer Privacy Act, the EU General Data Protection Regulation, the U.K. General Data Protection Regulation and the U.K.
Data Protection Act 2018 and direct marketing, e-mails, text messages or telemarketing, and guidance issued by a Governmental Authority
that pertains to any of these Laws, (ii) industry self-regulatory principles applicable to the protection or Processing of Personal Data,
direct marketing, e-mails, text messages or telemarketing, (iii) all applicable payment card network rules and regulations, including
Payment Card Industry Data Security Standards, (iv) policies and obligations applicable to the a party hereto or its Subsidiaries relating
to the Processing of Company Data (including the Company’s and its Subsidiaries’ data privacy and security policies published
on their websites or otherwise made available by the Company or any of its Subsidiaries to its customers or employees), (v) Contracts
involving Company Data to which the Company or any of its Subsidiaries is a party or is, and (vi) any privacy choices (including opt-out
preferences) of end users relating to Personal Data.
“Proceedings”
shall mean legal, administrative, arbitral or other proceedings, suits, actions or investigations.
“Process”
or “Processing” means, with respect to data, the use, collection, processing, storage, recording, organization,
adaption, alteration, transfer, retrieval, consultation, disclosure, dissemination or combination of such data.
“Release”
shall mean any actual or threatened release, spill, emission, discharge, leaking, pumping, injection, deposit, disposal, dispersal,
leaching or migration of Hazardous Materials, including the movement of Hazardous Materials through or in the air, soil, surface water,
groundwater or real property.
“Representatives”
shall mean, with respect to any Person, such Person’s Affiliates and its and their respective officers, directors, managers,
partners, employees, accountants, counsel, financial advisors, consultants and other advisors or representatives and, with respect to
Parent and its Affiliates, the Financing Sources.
“Sanctioned
Country” shall mean, at any time, a country or territory which is itself the subject or target of comprehensive Sanctions (at
the time of this Agreement, Crimea, Cuba, Iran, North Korea and Syria).
“Sanctioned
Person” shall mean any Person that is the target of Sanctions, including, (i) any Person listed in any Sanctions-related
list of designated Persons maintained by the United States (including through OFAC or the U.S. Department of State), the United
Nations Security Council, the European Union or any European Union member state, the United Kingdom, Switzerland, or any
jurisdiction in which the Company or any of its Subsidiaries is incorporated or does business, (ii) any Person located, organized or
resident in a Sanctioned Country, or (iii) any Person 50% or more owned or otherwise controlled by any such Person or Persons
described in the foregoing clauses (i) or (ii).
“Sanctions”
shall mean economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time by the U.S. government
(including through OFAC or the U.S. Department of State), the United Nations Security Council, the European Union or any European Union
member state, the United Kingdom, Switzerland, or any jurisdiction in which the Company or any of its Subsidiaries is incorporated or
does business.
“Sarbanes-Oxley
Act” shall mean the Sarbanes-Oxley Act of 2002, as amended.
“SEC”
shall mean the United States Securities and Exchange Commission.
“Securities
Act” shall mean the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
“Securities
Laws” shall mean the Securities Act, the Exchange Act, state securities or “blue sky” laws and the rules and regulations
promulgated thereunder, and all similar foreign securities laws and the rules and regulations promulgated thereunder.
“Security”
shall mean, with respect to any Person, any series of common stock, preferred stock and any other equity securities or capital stock
of such Person (including interests convertible into or exchangeable or exercisable for any equity interest in any such series of common
stock, preferred stock, and any other equity securities or capital stock of such Person), however described and whether voting or non-voting.
“Software”
means all (a) computer programs (including all software implementations of algorithms, models and methodologies, firmware, software
design and maintenance tools and all object codes, source codes, versions, releases updates, upgrades, modifications, enhancements, improvements
and derivations of the foregoing), (b) databases and compilations, including all data and collections of data, (c) technology supporting
the foregoing and (d) all documentation, including user manuals and training materials, relating to any of the foregoing.
“Subsidiary”
of a Person shall mean any other Person with respect to which the first Person (i) has the right to elect a majority of the board
of directors or other Persons performing similar functions or (ii) beneficially owns more than fifty percent (50%) of the voting stock
(or of any other form of voting or controlling equity interest in the case of a Person that is not a corporation), in each case, directly
or indirectly through one or more other Persons.
“Tax”
or “Taxes” shall mean any and all taxes, fees, levies, duties, tariffs, imposts, and other similar charges (together
with any and all interest, penalties and additions to tax) imposed by any Governmental Authority or Taxing Authority, whether disputed
or not, including taxes or other charges on or with respect to income, franchises, windfall or other profits, gross receipts, property,
sales, use, capital stock, payroll, employment, social security, workers’ compensation, unemployment compensation, or net worth,
and taxes or other charges in the nature of excise, withholding, ad valorem, stamp, transfer, value added, or gains taxes.
“Tax Returns”
shall mean returns, reports and information statements, including any schedule or attachment thereto, with respect to Taxes required
to be filed with the IRS or any other Governmental Authority or Taxing Authority.
“Taxing
Authority” shall mean any Governmental Authority having jurisdiction over the assessment, determination, collection or other
imposition of any Tax.
“Treasury
Regulations” shall mean regulations promulgated by the IRS under the Code.
Exhibit 99.1
For Immediate Release
Ali Group and Welbilt Announce Definitive Merger
Agreement
Welbilt Shareholders to Receive $24.00 per Share
in Cash
CHICAGO and NEW PORT RICHEY, Fla. – July 14, 2021 – Ali
Holding S.r.l. (“Ali Group”), one of the largest and most diversified global leaders in the foodservice equipment industry,
and Welbilt, Inc. (NYSE:WBT) today announced that they have entered into a definitive merger agreement under which Ali Group will acquire
Welbilt in an all-cash transaction for $24.00 per share, or approximately $3.5 billion in aggregate equity value and $4.8 billion in enterprise
value. The merger agreement has been unanimously approved by the boards of directors of both companies.
“We are pleased to announce this agreement with Welbilt and look
forward to combining our highly complementary brands to create a comprehensive product portfolio and enhance our global footprint,”
said Filippo Berti, Ali Group Chairman and Chief Executive Officer. “We have long admired Welbilt’s heritage, breadth of products,
brand strength and management team, and together we will have an expanded range of innovative products. The transaction marks a significant
milestone in Ali Group’s history and will position us to better serve our customers and capitalize on attractive growth opportunities.
We are excited to welcome Welbilt and its employees to the Ali Group family as
we strengthen our global presence and continue to build on our culture of quality and innovation.”
“We are excited to reach this agreement with Ali Group, which
delivers outstanding value to Welbilt shareholders, provides new opportunities for Welbilt employees and enables Welbilt to benefit from
the expertise and resources of Ali Group,” said Bill Johnson, Welbilt’s President and Chief Executive Officer. “This
transaction provides a compelling and certain cash value to Welbilt shareholders at an attractive premium and will create a global leader
in the foodservice equipment and solutions industry with a full range of connectable foodservice solutions for our customers. I want to
thank each of our employees for their hard work and dedication to the success of Welbilt, which has positioned us to reach this agreement
today. On behalf of the Welbilt Board and management team, we are excited to work closely with Filippo and the Ali Group team as we bring
our companies together.”
In addition, Carl C. Icahn (and affiliates), who owns 7.7% of Welbilt
stock, has entered into a support agreement in favor of the transaction.
Approvals and Timing
The transaction, which is not conditioned on financing, is expected
to close in early 2022, subject to the satisfaction of customary closing conditions, including the approval of Welbilt shareholders. Upon
completion of the transaction, Welbilt’s shares will no longer trade on The New York Stock Exchange.
Welbilt today also confirmed that it has terminated the previous merger
agreement entered into with The Middleby Corporation (“Middleby”) on April 20, 2021. Per the terms of the Middleby merger
agreement, Ali Group has paid Middleby a $110 million termination fee on Welbilt’s behalf as agreed to in the Ali Group merger agreement.
In light of the termination of the agreement with Middleby, Welbilt is cancelling its July 21, 2021, special stockholder meeting to approve
the Middleby transaction. Welbilt expects to announce a special stockholder meeting to approve the Ali Group transaction at a later date.
Advisors
Goldman Sachs & Co. LLC has acted as Ali Group’s exclusive
financial advisor with financing provided by Goldman Sachs International and Mediobanca, and Alston & Bird is acting as legal advisor.
Morgan Stanley & Co. LLC is serving as exclusive financial advisor to Welbilt, and Gibson, Dunn & Crutcher LLP is serving as legal
counsel.
About Ali Group
Founded in 1963, Ali Group is an Italian corporation with headquarters located in Milan, Italy and North American operations based in
Chicago, Illinois. Through its subsidiaries, the company designs, manufactures, markets and services a broad line of commercial and institutional
foodservice equipment used by major restaurant and hotel chains, independent restaurants, hospitals, schools, airports, correctional institutions
and canteens.
Ali Group and its 80 global brands employ approximately 10,000 people
in 30 countries and, in terms of sales, is one of the world’s largest and most diversified global leaders in the foodservice equipment
industry. It has 58 manufacturing facilities in 15 countries and sales and service subsidiaries throughout Europe, North America, South
America, the Middle East and Asia Pacific.
For more information on Ali Group products and services, visit www.aligroup.com.
About Welbilt, Inc.
Welbilt, Inc. provides the world’s top chefs, premier chain operators
and growing independents with industry-leading equipment and solutions. Our innovative products and solutions are powered by our deep
knowledge, operator insights, and culinary expertise. Our portfolio of award-winning product brands includes Cleveland™, Convotherm®,
Crem®, Delfield®, Frymaster®, Garland®, Kolpak®, Lincoln®, Manitowoc® Ice, Merco®, Merrychef® and
Multiplex®. These product brands are supported by three service brands: KitchenCare®, our aftermarket parts and service brand,
FitKitchen®, our fully-integrated kitchen systems brand, and KitchenConnect®, our cloud-based digital platform brand. Headquartered
in the Tampa Bay region of Florida and operating 19 manufacturing facilities throughout the Americas, Europe and Asia, we sell through
a global network of over 5,000 distributors, dealers, buying groups and manufacturers' representatives in over 100 countries. We have
approximately 4,500 employees and generated sales of $1.2 billion in 2020. For more information, visit www.welbilt.com.
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Additional Information and Where to Find
It
This communication does not constitute an
offer to buy or solicitation of an offer to sell any securities. This communication relates to a proposal which Ali Group has made for
a business combination transaction with Welbilt, Inc. In furtherance of this proposal and subject to future developments, Ali Group (and,
if a negotiated transaction is agreed to, Welbilt) may file one or more proxy statements or other documents with the SEC. This communication
is not a substitute for any proxy statement or other document Ali Group and/or Welbilt may file with the SEC in connection with the proposed
transaction.
INVESTORS AND SECURITY HOLDERS OF WELBILT
ARE URGED TO READ THE PROXY STATEMENT AND OTHER DOCUMENTS FILED WITH THE SEC CAREFULLY IN THEIR ENTIRETY IF AND WHEN THEY BECOME AVAILABLE
AS THEY WILL CONTAIN IMPORTANT INFORMATION ABOUT THE PROPOSED TRANSACTION. Any definitive proxy statement (if and when available) will
be mailed to stockholders of Welbilt. Investors and security holders will be able to obtain free copies of these documents (if and when
available) and other documents filed with the SEC by Ali Group through the web site maintained by the SEC at http://www.sec.gov.
Participants in the Solicitation
Ali Group, together with the other participants
named herein (collectively, “Ali Group”), and certain of its directors and executive officers may be deemed to be participants
in any solicitation with respect to the proposed transaction under the rules of the SEC.
The participants in this solicitation are Ali
Holding S.r.l. and Filippo Berti (Chairman and Chief Executive Officer), Bradford D. Willis (Chief Financial Officer), Ryan Blackman (Director
of Marketing and Communications), Andrea Cocchi (Chief Executive Officer, EMEA and APAC), and Maurizio Anastasia (Chief Financial Officer,
EMEA and APAC). As of the date hereof, the Ali Group (including officers, directors and other members of management) does not own any
shares of Welbilt.
Welbilt and certain of its directors and executive
officers may be deemed to be participants in the solicitation of proxies in respect of the proposed transaction. Information about the
directors and executive officers of Welbilt is set forth in its proxy statement for its 2021 annual meeting of shareholders, which was
filed with the SEC on March 15, 2021, and Welbilt’s Annual Report on Form 10-K for the fiscal year ended December 31, 2020, which
was filed with the SEC on February 26, 2021. Other information regarding the participants in the proxy solicitations and a description
of their direct and indirect interests, by security holdings or otherwise, will be contained in the proxy statement and other relevant
materials to be filed with the SEC regarding the proposed transaction when such materials become available.
Ali Group Contacts:
Investors and Analysts:
Daniel Burch
MacKenzie Partners, Inc.
(516) 429-2721
dburch@mackenziepartners.com
Jeanne Carr
MacKenzie Partners, Inc.
(917) 648-4478
jcarr@mackenziepartners.com
Media:
Ryan Blackman
Ali Group
Director of Marketing and Communications
(847) 215-5090
rblackman@aligroup.com
Matthew Sherman / Andrew Siegel / Tanner Kaufman
Joele Frank, Wilkinson Brimmer Katcher
(212) 355-4449
tkaufman@joelefrank.com
Welbilt Contacts
Investors and Analysts:
Rich Sheffer
Vice President Investor Relations, Risk Management and Treasurer
Welbilt, Inc.
(727) 853-3079
richard.sheffer@welbilt.com
Media:
David Reno/David Millar
Sard Verbinnen & Co.
Welbilt-SVC@sardverb.com