exhibit1012bcgpurchaseag






                                                               Execution Version                          STOCK PURCHASE AGREEMENT                                      AMONG                   HORACE MANN EDUCATORS CORPORATION,                                       AND                               ROBERT PAGLIONE,         PAGLIONE FAMILY IRREVOCABLE TRUST F/B/O ADAM PAGLIONE,    PAGLIONE FAMILY IRREVOCABLE TRUST F/B/O LISA AND JORGE ARROYO,                                   BEAU ADAMS                                       AND                       BENEFIT CONSULTANTS GROUP, INC.                          DATED AS OF OCTOBER 30, 2018    40733748.21  





 






                               TABLE OF CONTENTS                                                                               Page      ARTICLE I      DEFINITIONS ...................................................................................................1        Section 1.1 Definitions..........................................................................................................1      ARTICLE II     PURCHASE AND SALE ................................................................................15        Section 2.1 Purchase and Sale; Purchase Price ...................................................................15        Section 2.2 Closing .............................................................................................................16        Section 2.3 Closing Deliveries ............................................................................................16        Section 2.4 Closing Payment ..............................................................................................18        Section 2.5 Accounts Receivable and Post-Closing Adjustment........................................18        Section 2.6 Earn-Out Payments ..........................................................................................21      ARTICLE III    REPRESENTATIONS AND WARRANTIES OF THE SELLERS ...............23        Section 3.1 Company Organization and Corporate History ...............................................23        Section 3.2 Capital Structure ..............................................................................................24        Section 3.3 Authority and Enforceability ...........................................................................25        Section 3.4 Consents and Approvals; No Conflict .............................................................26        Section 3.5 Financial Information; Absence of Undisclosed Liabilities ............................27        Section 3.6 Real Property Interest ......................................................................................28        Section 3.7 Plan Sponsors and Plans ..................................................................................29        Section 3.8 Material Contracts ............................................................................................29        Section 3.9 Employee Benefits; Employees .......................................................................30        Section 3.10 Taxes ................................................................................................................33        Section 3.11 Compliance with Law; Permits ........................................................................35        Section 3.12 Litigation ..........................................................................................................37        Section 3.13 Intellectual Property .........................................................................................37        Section 3.14 Producers..........................................................................................................39        Section 3.15 Broker-Dealer and Investment Adviser ...........................................................39        Section 3.16 Recordkeeping Services ...................................................................................41        Section 3.17 Bank Accounts; Affiliate Transactions ............................................................41        Section 3.18 Absence of Change ..........................................................................................42        Section 3.19 Insurance ..........................................................................................................42        Section 3.20 Privacy and Data Security ................................................................................42        Section 3.21 Environmental Matters.....................................................................................42        Section 3.22 Brokers .............................................................................................................43      ARTICLE IV     REPRESENTATIONS AND WARRANTIES OF BUYER ...........................43        Section 4.1 Incorporation and Authority of Buyer .............................................................43        Section 4.2 No Conflict.......................................................................................................43        Section 4.3 Consents and Approvals ..................................................................................44        Section 4.4 Securities Law Matters ....................................................................................44        Section 4.5 Independent Investigation ................................................................................44        Section 4.6 Non-Reliance ...................................................................................................44        Section 4.7 Brokers .............................................................................................................44                                            -i-  40733748.21  





 






                                                                                                                 TABLE OF CONTENTS                                     (continued)                                                                             Page   ARTICLE V      COVENANTS .................................................................................................44      Section 5.1 Conduct of Business ........................................................................................44      Section 5.2 Access to Information ......................................................................................46      Section 5.3 Approvals and Consents ..................................................................................47      Section 5.4 Announcement .................................................................................................48      Section 5.5 Confidentiality .................................................................................................48      Section 5.6 D&O Liabilities ...............................................................................................49      Section 5.7 Releases by Sellers ...........................................................................................49      Section 5.8 Non-Competition; Non-Solicitation ................................................................49      Section 5.9 Exclusivity .......................................................................................................50      Section 5.10 Indebtedness; Affiliate Transactions; Accounts Receivable ............................51      Section 5.11 Further Assurances...........................................................................................51      Section 5.12 Notification of Certain Matters ........................................................................51      Section 5.13 One-Day Notes.................................................................................................52      Section 5.14 Private Letter Ruling ........................................................................................52    ARTICLE VI     EMPLOYEE MATTERS.................................................................................52      Section 6.1 Employee Matters ............................................................................................52    ARTICLE VII    CONDITIONS PRECEDENT .........................................................................55      Section 7.1 Conditions to Each Party’s Obligations ...........................................................55     Section 7.2 Conditions to Obligations of Buyer .................................................................56     Section 7.3 Conditions to Obligations of the Sellers ..........................................................57   ARTICLE VIII   TAX MATTERS ..............................................................................................57     Section 8.1 Agreements Regarding Tax Matters ................................................................57     Section 8.2 Section 338(h)(10) Election .............................................................................60     Section 8.3 Tax Sharing Agreements..................................................................................61     Section 8.4 Tax Treatment of Indemnity Payments ............................................................61   ARTICLE IX     SURVIVAL OF REPRESENTATIONS AND WARRANTIES AND                 COVENANTS .................................................................................................61     Section 9.1 Survival of Representations and Warranties ....................................................61      Section 9.2 Survival of Covenants ......................................................................................62      Section 9.3 Survival Period.................................................................................................62    ARTICLE X      INDEMNIFICATION......................................................................................62      Section 10.1 Obligation to Indemnify ...................................................................................62      Section 10.2 Indemnification Procedures; Certain Limitations ............................................64      Section 10.3 Exclusive Remedies .........................................................................................67    ARTICLE XI     TERMINATION ..............................................................................................67      Section 11.1 Termination ......................................................................................................67      Section 11.2 Effect of Termination .......................................................................................68                                         -ii-   40733748.21  





 






                                                                                                                 TABLE OF CONTENTS                                     (continued)                                                                             Page   ARTICLE XII    GENERAL PROVISIONS ..............................................................................68      Section 12.1 Fees and Expenses ...........................................................................................68      Section 12.2 Notices .............................................................................................................68      Section 12.3 Interpretation ....................................................................................................69      Section 12.4 Entire Agreement; Third-Party Beneficiaries ..................................................70      Section 12.5 Governing Law ................................................................................................70      Section 12.6 Assignment ......................................................................................................70      Section 12.7 Dispute Resolution; Enforcement ....................................................................70      Section 12.8 Severability; Amendment and Waiver .............................................................71      Section 12.9 Specific Performance .......................................................................................72      Section 12.10 Certain Acknowledgments; Informed Decision to Sell ...................................72      Section 12.11 Counterparts .....................................................................................................73      Section 12.12 WAIVER OF JURY TRIAL ............................................................................73      Exhibits      Exhibit A   Certificates of Trust   Exhibit B   Indebtedness Payoff Amount  Exhibit C   Non-Compete and Non-Disclosure Agreements  Exhibit D   Spousal Consent  Exhibit E   Form of Release  Exhibit F   Working Capital   Exhibit G   Earn-Out Calculation  Exhibit H   Independent Accountants    Seller Disclosure Schedule  Buyer Disclosure Schedule                                               -iii-   40733748.21  





 






                       STOCK PURCHASE AGREEMENT            This STOCK PURCHASE AGREEMENT, dated as of October 30, 2018 (this   “Agreement”), is made by and among HORACE MANN EDUCATORS CORPORATION, a   Delaware corporation (“Buyer”), ROBERT PAGLIONE, an individual resident of the State of   New Jersey (the “Class A Shareholder”), THE PAGLIONE FAMILY IRREVOCABLE TRUST   F/B/O ADAM PAGLIONE, an irrevocable trust established under the laws of the State of New   Jersey (the “Adam Paglione Trust”), THE PAGLIONE FAMILY IRREVOCABLE TRUST F/B/O   LISA AND JORGE ARROYO, an irrevocable trust established under the laws of the State of New   Jersey (the “Lisa Arroyo Trust” and together with the Adam Paglione Trust, the “Trusts”), BEAU   CHRISTIAN ADAMS, an individual resident of the State of New Jersey (“Adams” and together   with the Class A Shareholder and the Trusts, the “Sellers” and each individually, a “Seller”), and   BENEFIT CONSULTANTS GROUP, INC., a Pennsylvania corporation (the “Company”).    Buyer, the Company (prior to the Effective Time) and the Sellers shall be referred to herein from   time to time collectively as the “parties” and individually as a “party.”                                     RECITALS         WHEREAS, the Sellers collectively own all of the issued and outstanding shares of the  Company;         WHEREAS, the Company owns all of the issued and outstanding capital stock of BCG  Securities, Inc., a Pennsylvania corporation (“BCGS”);            WHEREAS, the Company and BCGS engage in the business of providing retirement   planning, consulting, actuarial designing and recordkeeping services with respect to non-qualified   and qualified plans, investment advisory and brokerage services, and other related services; and          WHEREAS, the Sellers desire to sell to Buyer, and Buyer desires to acquire from Sellers,   all of the outstanding capital stock of the Company upon the terms and subject to the conditions   set forth herein;          NOW THEREFORE, in consideration of the mutual covenants, conditions and agreements   set forth herein and for other good and valuable consideration, the receipt and sufficiency of which   are hereby acknowledged, the parties hereto agree as follows:                                      ARTICLE I                                                                            DEFINITIONS          Section 1.1 Definitions.  For purposes of this Agreement, the following terms shall have   the respective meanings set forth below:          “Acceptable PLR” means a private letter ruling from the IRS reasonably satisfactory to   Buyer that the Company will be treated as continuing to be an S corporation within the meaning   of Sections 1361 and 1362 of the Code on and after December 31, 2017.     40733748.21  





 






         “Accounts Receivable” means all notes and accounts receivable of the Company Business,  determined in accordance with Applicable Accounting Principles.                “Action” means any claim, action, suit, litigation, arbitration, investigation, subpoena,  examination or other proceeding by or before any Governmental Authority or arbitral body.          “Acquisition Proposal” has the meaning set forth in Section 5.9.         “Adam Paglione Trust” has the meaning set forth in the introductory paragraph hereof.         “Adams” has the meaning set forth in the introductory paragraph hereof.         “Additional Holdback” has the meaning set forth in Section 5.14.         “Affiliate” means, with respect to any specified Person, any other Person that, at the time  of determination, directly or indirectly through one or more intermediaries, Controls, is Controlled  by, or is under common Control with, such first person.         “Agreement” has the meaning set forth in the introductory paragraph hereof.         “Allocation Schedule” has the meaning set forth in Section 8.2(c).         “Applicable Accounting Principles” means GAAP applied on a consistent basis.         “Assets” means the Leased Real Property, machines, furniture, computer hardware,  Intellectual Property, Computer Software, Technology, Contracts, office furnishings and other  tangible personal property which are owned or used in the Company Business.  Assets shall not  include the art work at the Leased Real Property set forth in Section 1.1 of the Seller Disclosure  Schedule, which art work shall be retained and owned by Seller, Robert Paglione.         “Base Consideration” means an amount equal to $25 million.         “BCGS” has the meaning set forth in the Recitals hereof.           “BCGS Financial Statements” has the meaning set forth in Section 3.5(a).         “BCGS Shares” has the meaning set forth in Section 3.2(b).         “Benefit Plans” means each “employee pension benefit plan” (as defined in Section 3(2)  of ERISA), “employee welfare benefit plan” (as defined in Section 3(1) of ERISA), “employee  plan” (as defined in Section 3(3) of ERISA, and each stock option or other equity based,  employment or other contract for personal services, bonus, incentive or deferred compensation,  welfare, life, medical, or dental benefits, retention, change-in-control, restrictive covenant, Tax  gross-up, severance, paid leave, vacation, fringe, or other benefit, compensation plan, program,  policy, arrangement or agreement, whether or not subject to ERISA and whether or not written,  (a) that is sponsored, maintained, or contributed to by the Company or any of its Affiliates, (b)  with respect to which the Company or any of its Affiliates otherwise has any obligation or liability                                         -2-  40733748.21  





 






     (whether direct or contingent), or (c) that otherwise provides benefits to any current or former   employee, officer, director or independent contractor of the Company or any of its Affiliates.          “Books and Records” means the originals or copies of all books and records, data and   information, customer lists, disclosure and other documents and filings required under all   applicable Laws, administrative records, marketing information, customer information, personnel   records, sales records, financial records, Tax records, compliance records and email data of the   Company, BCGS and Company Business, including, without limitation, any database, magnetic   or optical media or any other form of recorded, computer generated or stored information or   process (including emails) and the Company’s and BCGS’s organizational, ownership and   corporate records.          “Business Day” means any day other than a Saturday, Sunday, a U.S. federal holiday or a   day on which the New York Stock Exchange is closed.           “Buyer” has the meaning set forth in the introductory paragraph hereof.          “Buyer 401(k) Plan” has the meaning set forth in Section 6.1(c).          “Buyer Disclosure Schedule” means the Buyer Disclosure Schedule delivered by Buyer to   the Sellers concurrently with the execution of this Agreement.          “Buyer Fundamental Representations” has the meaning set forth in Section 9.1.          “Buyer Indemnitees” has the meaning set forth in Section 10.1(a).          “Buyer Material Adverse Effect” means a material impairment of the ability of Buyer to   perform its obligations under the Agreement or to consummate the transactions contemplated   thereby.          “Buyer’s Allocation” has the meaning set forth in Section 8.2(c).          “Cause” means, with respect to any Person, the occurrence of any of the following: (i) such   Person’s indictment of, commission of or plea of guilty or nolo contendere to any felony or any   crime involving fraud, dishonesty or moral turpitude under the laws of the United States or any   state thereof or under the laws of any other jurisdiction; (ii) such Person’s commission of, or   participation in, a fraud or act of dishonesty against Buyer or any Affiliate of Buyer or any client   of Buyer or any of its Affiliates or such Person’s commission of an act or omission that could bring   the business of the Buyer and its Affiliates into material disrepute or cause such entities significant   embarrassment; (iii) such Person’s material violation of any material policy, contract or agreement   between the Person and Buyer or any of its Affiliates (other than this Agreement); (iv) any act or   omission by such Person involving malfeasance or gross negligence in the performance of the   Person’s duties and responsibilities to the detriment of Buyer or any of its Affiliates; (v) such   Person’s habitual use of illegal drugs or alcohol during the performance of his duties for the Buyer   or its Affiliates; (vi) such Person’s violation of the applicable rules or regulations of any   governmental or self-regulatory authority that causes material harm to Buyer or any of its  Affiliates; or (vii) such Person’s disqualification or bar by any governmental or self-regulatory  authority from serving in the capacity required by his or her job description or such Person’s loss                                         -3-   40733748.21  





 






     of any governmental or self-regulatory license that is reasonably necessary for such Person to   perform his or her duties or responsibilities, in each case as an employee of Buyer or any of its   Affiliates.  The determination as to whether Cause has occurred shall be made by Buyer, in its sole   discretion.          “Certificates of Trust” means, collectively, the Certificate of Trust relating to the Adam   Paglione Trust and the Certificate of Trust relating to the Lisa Arroyo Trust, in each case attached   hereto as Exhibit A.          “Change of Control” means, with respect to any Person, (i) any event or series of events   by which any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the   Securities Exchange Act of 1934, as amended) becomes the “beneficial owner” (as defined in   Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934, as amended), directly or  indirectly, of shares of the capital stock of such Person representing more than 50% of the  aggregate ordinary voting power represented by the issued and outstanding capital stock of such   Person, or (ii) any transaction involving a sale of all or substantially all of the assets of such   Person to an independent third party.                    “Class A Common Stock” has the meaning set forth in Section 3.2(a).          “Class A Shareholder” has the meaning set forth in the introductory paragraph hereof.          “Class B Common Stock” has the meaning set forth in Section 3.2(a).          “Closing” has the meaning set forth in Section 2.2.          “Closing Consideration” means the Base Consideration plus the Working Capital   Adjustment less the Indebtedness Payoff Amount less the Company Transaction Expenses.          “Closing Date” has the meaning set forth in Section 2.2.          “Closing Payment” has the meaning set forth in Section 2.4(b).          “COBRA” has the meaning set forth in Section 6.1(f).          “Code” means the Internal Revenue Code of 1986, as amended, as well as any guidance   issued thereunder.          “Company” has the meaning set forth in the recitals.          “Company 401(k) Plan” has the meaning set forth in Section 6.1(c).          “Company Business” means the business of the Company and BCGS, including but not   limited to providing retirement planning, consulting, actuarial designing and recordkeeping   services with respect to non-qualified and qualified plans, investment advisory and brokerage   services, and any ancillary services.                                            -4-   40733748.21  





 






           “Company Material Adverse Effect” means any fact, circumstance, condition, event,   development, occurrence, change or effect that (a) has, or could reasonably be expected to have,   individually or in the aggregate, a material adverse effect on the business, sales, prospects assets,   liabilities, operations, or financial condition or results of operations of the Company, BCGS or the   Company Business, (b) has caused, or could reasonably be expected to cause, individually or in   the aggregate, material damage or harm to the commercial reputation of the Company, BCGS or   the Company Business, including association with any misleading sales practices, or (c) causes, or   reasonably could be expected to cause, individually or in the aggregate, a material impairment of   the ability of the Seller Parties to perform their obligations hereunder or to consummate the   transactions contemplated hereby; provided, however, that no effect, change, event, occurrence or   development (an “Event”) (by itself or when aggregated with any other Event) resulting from,   arising out or relating to, any of the following shall be deemed to give rise to a Company Material   Adverse Effect with respect to clause (a) hereof, or be taken into account when determining   whether a “Company Material Adverse Effect” under clause (a) or (b) hereof, has occurred or may,   would or could occur: (i) any Event (including any loss of employees, any disruption in supplier,   distributor, partner or similar relationships) to the extent resulting from or arising out of the public   announcement of this Agreement, (ii) any action taken by Seller Parties that is consented to by   Buyer in writing and (iii) to the extent that such Event does not disproportionately affect Sellers,   the Company, BCGS or the Company Business relative to other participants in the industries or  geographic locations in which Sellers, the Company, or BCGS participate: (A) any Event resulting  from or arising out of general economic or political conditions or changes in such conditions  (including acts of terrorism or war), (B) changes in GAAP or applicable Law after the date of this  Agreement and (C) changes resulting from natural or man-made disaster, a declaration of a  national emergency, war, or the occurrence of any military attack.          “Company Real Property Leases” has the meaning set forth in Section 3.6(b).          “Company Shares” means, collectively, the shares of Class A Common Stock and Class B   Common Stock of the Company.            “Computer Software” means currently used versions, releases, modifications, updates,   upgrades, enhancements thereto of computer software applications, programs, middleware,   firmware, materials and tapes used in the administration of the Company Business, as well as any   legacy versions thereof necessary to meet customer needs, including documentation, object code,   executables and available source code, in each case owned or used by the Company or any of its   Affiliates.          “Company Transaction Expenses” means, in each case solely to the extent not paid   immediately prior to the Closing Date, and whether or not invoiced, (i) the fees and expenses   payable by the Company to MacElree Harvey, Ltd. and any other attorneys engaged by the   Company in connection with this Agreement and the transactions and other agreements   contemplated by this Agreement, and (ii) the fees and expenses payable by the Company to outside   accountants or other advisors, in each case incurred on or before the Closing Date in connection   with this Agreement and the transactions and other agreements contemplated by this Agreement.           “Confidentiality Agreement” means that certain Non-Disclosure Agreement dated   February 28, 2018 by and between the Company and Horace Mann Services Corporation.                                           -5-   40733748.21  





 






         “Continued Employee” has the meaning set forth in Section 6.1(a).         “Continuing Membership Application” has the meaning set forth in Section 5.3(b).         “Contract” means any contract, agreement, Permit, note, lease, license, instrument or other  legally binding obligation.         “Control,” “Controlled” or “Controlling” means, as to any Person, the possession, directly  or indirectly, of the power to direct or cause the direction of the management and policies of such  Person, whether through the ownership of voting securities, by contract or otherwise.  The terms  “Controlled by” and “under common Control with” shall have correlative meanings.         “Customer” means any Plan Sponsor or individual recipient of individual wealth advisory  or other services by the Company or BCGS in connection with the Company Business.         “D&O Indemnified Person” has the meaning set forth in Section 5.6.         “Disputed Item” has the meaning set forth in Section 2.5(c).         “Earn-Out Payment” has the meaning set forth in Section 2.6(b).         “Earn-Out End Date” has the meaning set forth in Section 2.6(a).         “Earn-Out Start Date” has the meaning set forth in Section 2.6(a).         “Effective Time” has the meaning set forth in Section 2.2.         “Eligibility Date” has the meaning set forth in Section 6.1(d).         “Employee” means each natural person who is a common law employee of the Company  or BCGS, each of which (including any Employee on leave and any employee on long-term  disability) is listed on Section 3.9(g) of the Seller Disclosure Schedule.         “Environmental Laws” means all applicable Law governing Environmental Matters.         “Environmental Matters” means any matters arising out of or relating to health and safety,  or pollution or protection of the environment or workplace, including, without limitation, any of  the foregoing relating to the use, generation, transport, treatment, storage, or disposal of any  material defined as a “hazardous substance” or “hazardous waste” under any Environmental Law.         “ERISA” means the Employee Retirement Income Security Act of 1974, as amended, as  well as any guidance issued thereunder.         “ERISA Affiliate” means any Person (whether incorporated or unincorporated) that  together with the Company would be deemed a “single employer” within the meaning of Section  414 of the Code.         “Estimated Closing Consideration” has the meaning set forth in Section 2.4(a).                                        -6-  40733748.21  





 






           “Estimated Working Capital Adjustment” has the meaning set forth in Section 2.4(a).          “Example Calculation” has the meaning set forth in Section 3.5(a).          “Existing Employment Agreement” means each employment agreement or other   agreement for personal services between the Company or BCGS, on one hand, and an Employee,   on the other hand.  For the avoidance of doubt, each such agreement (including any terminated   agreement for which the Company or BCGS has any liability) is listed on Section 3.9(h) of the   Seller Disclosure Schedule.           “Final Adjustment Amount” has the meaning set forth in Section 2.5(f)(ii).          “Final Working Capital Adjustment” has the meaning set forth in Section 2.5(b).          “Financial Statements” has the meaning set forth in Section 3.5(a).          “FINRA” means the Financial Industry Regulatory Authority, Inc.          “First Holdback Release Amount” means $2.5 million.          “First Holdback Release Date” has the meaning set forth in Section 10.2(i).          “Fund” means any registered investment company, bank commingled fund or other   unregistered pooled investment entity or separate account in which any Participant or Plan Sponsor   invests as part of any investment menu or other program offered by the Company or BCGS with   respect to the Company Business.          “Fund Agreement” means any Contract to which Company or BCGS is a party with any   Fund, an Affiliate of a Fund, or an agent of a Fund (including any Fund Manager) that is related   to the Company Business and calls for the payment to or on behalf of the Company or BCGS in   excess of $5,000 per annum, including, but not limited to, all agreements that are styled as  “participation agreements” and any corresponding ancillary documents, and all Contracts  providing for the use of Funds as investment options and payment of distribution service fees,  administrative service fees, shareholder service fees or other payments relating to the offering of  such Funds as investment options.          “Fund Managers” means the advisors to the Funds.          “GAAP” means generally accepted accounting principles in the United States.          “Governmental Approval” has the meaning set forth in Section 3.4.          “Governmental Authority” means any domestic or foreign governmental, legislative,   judicial, administrative or regulatory authority, agency, self-regulatory organization (including   FINRA), commission, body, court or entity.          “Governmental Order” means any order, writ, judgment, injunction, decree, stipulation,   determination or award entered by or with any Governmental Authority.                                         -7-   40733748.21  





 






         “Holdback Amount” means $5,000,000.          “Holdback Release Date” means the First Holdback Release Date or Second Holdback  Release Date, as applicable.         “Indebtedness” means, with respect to any Person, any obligations of such Person or its  Subsidiaries whether evidenced by notes, bonds, debentures or similar instruments or otherwise  that relate to (a) borrowed money or any obligation to repay amounts, (b) any deferred purchase  price of goods or services, (c) any letter of credit, (d) any capital lease, lease-purchase arrangement  or similar agreement, (e) any undertaking by such Person or its Subsidiaries on which others rely  in extending credit or conditional sales agreements, or (f) any undertaking in the nature of  guarantees of the obligations described in clauses (a) through (e) above of any other Person, in  each case including any accrued and unpaid interest or penalty thereon.          “Indebtedness Payoff Amount” means the aggregate amounts required to extinguish the  Indebtedness set forth on Exhibit B hereto.         “Indemnification Cap” has the meaning set forth in Section 10.1(a).         “Indemnification Deductible” has the meaning set forth in Section 10.1(a).         “Indemnification Retention Amount” means the aggregate amount of all claims for  indemnification set forth in any demand for indemnification made by a Buyer Indemnitee pursuant  to and in compliance with Article VII or Article X as applicable (whether disputed or undisputed)  on or prior to the applicable Holdback Release Date that are outstanding and unpaid as of such  Holdback Release Date.         “Indemnified Party” has the meaning set forth in Section 10.2(a).         “Indemnifying Party” has the meaning set forth in Section 10.2(a).         “Indemnity Claim” has the meaning set forth in Section 10.2(a).         “Independent Accountant” has the meaning set forth in Section 2.5(d).         “Individual Registered Representative Agreement” means each agreement among the  Company, BCGS and a Registered Person pursuant to which such Registered Person is appointed  as a “registered representative” of BCGS and/or serves as an investment adviser representative of  BCGS.         “Intellectual Property” means any and all of the following: (a) Trademarks; (b)  copyrightable works and works of authorship, including moral rights, copyright, registrations and  applications for registration thereof, and all rights therein provided by applicable Law; (c) Trade  Secrets and confidential know-how; (d) patents, patent applications and statutory invention  registrations, including reissues, divisions, continuations, continuations-in-part, renewals,  extensions and reexaminations thereof, all patents that may issue on such applications, and all  rights therein provided by applicable Law; and (e) other intellectual property and related  proprietary rights, interests and protections.                                         -8-  40733748.21  





 






           “Interest Rate” means the greater of (a) a rate of interest per annum equal to the rate of   interest quoted in The Wall Street Journal, Money Rates Section as the “Prime Rate” as in effect   from time to time, or (b) the applicable federal short-term rate as defined in section 1274(d) of the  Code.            “Investment Advisers Act” means the Investment Advisers Act of 1940, as amended, and   the rules and regulations of the SEC thereunder.          “IRS” means the Internal Revenue Service.          “Knowledge” means, with respect to Seller Parties, the actual knowledge after due inquiry   of the individuals listed in Section 1.1(a) of the Seller Disclosure Schedule.          “Law” means any federal, state, local or foreign law, statute or ordinance, common law or   any rule, regulation, standard, judgment, order, writ, injunction, ruling, decree, arbitration award,   agency requirement, license or permit of any Governmental Authority.          “Leased Real Property” has the meaning set forth in Section 3.6(b).          “Licensed Intellectual Property and Technology” has the meaning set forth in Section   3.13(c).          “Lien” means any mortgage, deed of trust, pledge, hypothecation, security interest,   encumbrance, claim, lien or charge of any kind.          “Lisa Arroyo Trust” has the meaning set forth in the introductory paragraph hereof.          “Losses” means any and all liabilities, claims, expenses (including reasonable attorneys’   fees and expenses) and damages, reasonably foreseeable lost profits and any claim properly paid   to a third party in connection with a Third Party Claim, provided, that Losses shall exclude   punitive, consequential, special, and indirect damages (including any damages based on any type   of multiple).          “Material Contract” means any (i) Services Agreement, (ii) Plan Sponsor Recordkeeping   Agreement, (iii) Fund Agreement, (iv) Revenue Agreement, (v) Significant Producer Agreement,   (vi) any Contract evidencing Indebtedness of the Company or BCGS, (vii) any other Contract with   any Customer, and (viii) any other Contract to which the Company or BCGS is a party or by which   its assets are bound that (a) calls for the payment by or on behalf of the Company or BCGS in   excess of $10,000 per annum, or the delivery of goods or services with a fair market value in excess   of $10,000 per annum, during the remaining term thereof, (b) establishes a joint venture or similar   arrangement, (c) involves an acquisition or disposition of any material portion of the Company   Business or pursuant to which there is continuing indemnification obligations of the Company or   BCGS, (d) contains covenants restricting the ability of the Company or BCGS to compete in any   line of business or geographical area or to do business with any Person or solicit the employment   of any Person or (e) constitutes any real property interest.          “MSRB” means the Municipal Securities Rulemaking Board.                                         -9-   40733748.21  





 






           “Non-Compete and Nondisclosure Agreements” means the Non-Compete and   Nondisclosure Agreements between Buyer, on one hand, and each of the Principals, on the other   hand, in substantially the form attached hereto as Exhibit C.            “OFAC” has the meaning set forth in Section 3.11(e).          “One-Day Notes” means the One-Day Notes to be delivered by Buyer to the Sellers at   Closing in a form mutually acceptable to Buyer and Sellers.           “Ordinary Course of Business” means, with respect to any Person, the ordinary course of   business of such Person consistent with past practice.          “Organizational Documents” means (a) the articles or certificate of incorporation and   bylaws of a corporation; and (b) any charter, trust documents, or similar document adopted or filed   in connection with the creation, formation, or organization of a Person, and (c) any amendment to  any of the foregoing.          “Outside Date” has the meaning set forth in Section 11.1(b).          “Owned Intellectual Property” means the Intellectual Property relating to the Company   Business owned by the Company or any of its Affiliates.          “Participant” means an employee who meets the eligibility requirements to participate in a   plan that is included in the Company Business with the applicable Plan Sponsor.          “Permits” has the meaning set forth in Section 3.11(b).          “Permitted Liens” means all imperfections of title or Liens (a) that arise out of Taxes   imposed that are not due and payable as of the Closing Date or are being contested in appropriate   proceedings, (b) of carriers, warehousemen, mechanics, materialmen and other similar Persons or   other similar Liens imposed by Law incurred in the Ordinary Course of Business for sums not yet   delinquent or being contested in good faith, or (c) that relate to deposits made in the Ordinary   Course of Business in connection with workers’ compensation, unemployment insurance and other   types of social security, other than, in each case, such imperfections or Liens that would   individually or in the aggregate with other Permitted Liens, interfere with the use of the asset or   assets to which such Liens relates in the Ordinary Course of Business or materially detract from   the value of such asset or assets.          “Person” means any natural person, corporation, partnership, joint venture, limited liability   company, association, trust, unincorporated organization or other entity.          “Personal Information” means (i) any “nonpublic personal information” as such term is   defined under Title V of the U.S. Gramm-Leach-Bliley Act, 15 U.S.C. § 6801 et seq., and the rules   and regulations issued thereunder, (ii) any “individually identifiable health information” or   “protected health information” as such terms are used under Health Insurance Portability and   Accessibility Act of 1996 and the rules and regulations issued thereunder, (iii) any information   that can specifically identify an individual, such as name, signature, address, social security  number, telephone number or other unique identifier, together with any other information that                                         -10-   40733748.21  





 






   relates to an individual who has been so identified in any format whether written, electronic or  otherwise, or (iv) information that can be used to authenticate an individual (including, without  limitation, passwords or PINs, biometric data, unique identification numbers, answer to security  questions, or other personal identifiers) in each case in any format whether written, electronic or  otherwise.         “Phantom Stock Plan” means the Phantom Stock and Stock Appreciations Rights Plan, by  and between the Company and Stephen E. Sokolic, dated April 12, 2004 and terminated as to  future benefits as of December 28, 2006,  as amended from time to time.          “Plan” means any non-qualified deferred compensation plans, qualified defined  contribution or defined benefit plans or other arrangements or programs sponsored or maintained  by a Plan Sponsor with respect to which the Company or any of its Affiliates provides any  retirement plan program services as part of the Company Business.         “Plan Sponsor” means an employer or other entity that sponsors or maintains non-qualified  deferred compensation plans, qualified defined contribution or defined benefit plans or other  arrangements or programs with respect to which the Company or any of its Affiliates provides  services as part of the Company Business.         “Plan Sponsor Recordkeeping Agreements” means any Contract pursuant to which the  Company or any of its Affiliates provides Recordkeeping Services to a Plan Sponsor and which  has resulted in the annual payments to the Company or any of its Affiliates in excess of $5,000 per  annum.         “Post-Closing Statement” has the meaning set forth in Section 2.5(b).         “Post-Closing Tax Period” means any Tax period that begins after the Closing Date and  the portion of any Straddle Period that begins after the Closing Date.         “Pre-Closing Statement” has the meaning set forth in Section 2.4(a).         “Pre-Closing Tax Period” means any Tax period that ends on or before the Closing Date  and the portion of any Straddle Period ending at the end of the Closing Date.         “Principals” means Robert Paglione, Adam Paglione, Jorge Arroyo and Beau Adams.         “Pro Rata Share” means for each Seller, the number of Company Shares owned by such  Seller over the total number of Company Shares.            “Producer” has the meaning set forth in Section 3.14(a).         “Purchase Price” has the meaning set forth in Section 2.1(b).         “Quarterly Financial Statements” has the meaning set forth in Section 3.5(a).         “Recordkeeping Services” means, administrative maintenance of plans and plan- participant accounts, processing of plan transactions, transfer and clearing services related to plan-                                       -11-  40733748.21  





 






   level trades, check preparation, provision of Tax reporting information, plan consulting, participant  distribution education services and related services.         “Recovery Amounts” has the meaning set forth in Section 10.2(d).         “Registered Intellectual Property” means all Owned Intellectual Property that is registered,  filed or issued under the authority of any Governmental Authority (or, in the case of an internet  domain name, with an internet domain name registrar), or for which an application to register has  been filed with any Governmental Authority.         “Registered Person” means each Employee and independent contractor of the Company or  any of its Affiliates who is (a) required to be licensed as a registered representative with certain  states and FINRA, and/or (b) required to be licensed or registered as an investment adviser  representative where such licensing or registration is required by a state, in order to perform his or  her responsibilities for or on behalf of the Company or any of its Affiliates in connection with the  Company Business.         “Related Person” means (a) with respect to a particular individual: (i) each other member  of such individual’s Family; and (ii) any Person that is directly or indirectly Controlled by such  individual or one or more members of such individual’s Family, and (b) with respect to a specified  Person other than an individual, any other Person that directly or indirectly Controls, is directly or  indirectly Controlled by, or is directly or indirectly under common Control with such specified  Person.  For purposes of this definition, the “Family” of an individual includes (A) the individual,  (B) the individual’s spouse, (C) the individual’s children (including adoptive relationships); and  (D) all familial relations living in the individual’s household.  In the case of a trust, any trustee or  co-trustee shall be deemed to control the relevant trust.         “Representatives” as to any Person, means such Person’s directors, officers, partners (other  than limited partners), managers, employees, Affiliates, representatives (including financial  advisors, attorneys and accountants) or agents.         “Resolution Period” has the meaning set forth in Section 2.5(d).         “Restricted Period” has the meaning set forth in Section 5.8(a).         “Revenue Agreement” means any Contract to which the Company or BCGS or one of their  agents is a party, which calls for the payment in excess of $5,000 per annum, directly or indirectly,  to the Company or BCGS.         “Salary Continuation Agreement” means that certain Salary Continuation Agreement  between the Company and Robert Paglione, dated January 1, 2008, as amended from time to time.         “SEC” means the U.S. Securities and Exchange Commission.         “Second Holdback Release Date” has the meaning set forth in Section 10.2(i).         “Section 338(h)(10) Election” has the meaning set forth in Section 8.2(a).                                        -12-  40733748.21  





 






         “Securities Act” means the Securities Act of 1933, as amended, and the rules and  regulations of the SEC thereunder.         “Selected Court” has the meaning set forth in Section 12.7(b).         “Seller Delivered Documents” has the meaning set forth in Section 3.4.         “Seller Disclosure Schedule” means the Seller Disclosure Schedule delivered by the  Company to Buyer concurrently with the execution of this Agreement.          “Seller Fundamental Representations” has the meaning set forth in Section 9.1.         “Seller Indemnitees” has the meaning set forth in Section 10.1(b).         “Seller Parties” means Sellers and, prior to the Effective Time, the Company.         “Sellers” has the meaning set forth in the introductory paragraph hereof.         “Services Agreement” means any Contract to which the Company or BCGS is a party  pursuant to which services are provided by any Person in connection with the Company Business  such as the provision of system, infrastructure, application, custodial, trust or brokerage, clearing  or settlement services (other than Plan Sponsor Recordkeeping Agreements, other Contracts with  Customers, or Fund Agreements) and which calls for the payments by or on behalf of the Company  or BCGS to such Person in excess of $5,000 per annum.         “Significant Producer” has the meaning set forth in Section 3.14(c).         “Significant Producer Agreement” has the meaning set forth in Section 3.14(c).         “Spousal Consents” means the consent of the spouse of each of the Class A Shareholder  and Adams, in substantially the form set forth as Exhibit D.         “Straddle Period” means any Tax year or period beginning on or before the Closing Date  and ending after the Closing Date.         “Subsidiary” of any Person means another Person of which more than 50% of the total  combined voting power of all classes of stock or other voting interests or Controlling equity  interest in the case of a Person that is not a corporation is owned at the time of determination  directly or indirectly by such first Person.         “Substantially Converted” means conversion of 90% or more of the Buyer’s “retirement  advantage” plans (which does not include remitter services or data sharing) from the Buyer’s  platform to the Company’s platform such that Buyer clients are able to access their client account  information from the website maintained by the Company; provided that a plan shall be deemed  converted to the Company’s platform if (i) the plan has not been converted due to delay by the  custodian (Matrix/MG Trust) or the recordkeeping platform (FIS Relius), provided that Sellers  shall have used best efforts to cause such conversion, or (ii) the plan has been converted and is  subsequently “de-converted” by the Buyer.                                          -13-  40733748.21  





 






           “Survival Period” has the meaning set forth in Section 9.3.          “Target Net Working Capital” means $800,000.                  “Tax Closing Agreement” has the meaning set forth in Section 3.10(g).          “Tax Ruling” has the meaning set forth in Section 3.10(g).          “Tax” means any federal, state, county, local, or foreign tax (including income taxes and   Transfer Taxes), charge, fee, levy, impost, duty, or other assessment, including income, gross   receipts, excise, employment, sales, use, transfer, recording, license, payroll, franchise, severance,   documentary, stamp, occupation, windfall profits, environmental, highway use, commercial rent,   customs duty, capital stock, paid-up capital, profits, withholding, social security, single business,   unemployment, disability, real property, personal property, registration, ad valorem, value added,   alternative or add-on minimum, estimated, or other tax or taxing fee of any kind whatsoever,   imposed or required to be withheld by any Taxing Authority, including any estimated payments   relating thereto, any interest, penalties, and additions imposed thereon or with respect thereto,   whether disputed or not, and including liability for taxes of another Person under Treasury   Regulations Section 1.1502-6 or similar provision of state, local or foreign law, or as a transferee   or successor, by contract or otherwise.          “Tax Adjustment” has the meaning set forth in Section 8.2(b).          “Tax Return” means any return, declaration or report relating to Taxes due, any information   return with respect to Taxes, or other similar report, statement, declaration or document required   to be filed under applicable Law in respect of Taxes, any amendment to any of the foregoing, any   claim for refund of Taxes paid, and any attachments, amendments or supplements to any of the   foregoing.          “Taxing Authority” means the IRS and any other domestic or foreign Governmental   Authority responsible for the administration and/or collection of any Tax.          “Technology” means hardware, information technology equipment and systems, third-  party software, data and databases, and associated documentation, in each case relating to the   Company Business as currently conducted and owned by or licensed by the Company.          “Texas Application” has the meaning set forth in Section 5.3(b).          “Third Party Claim” has the meaning set forth in Section 10.2(b).          “Trademarks” mean trademarks, trade names, service marks, trade dress, logos, internet   domain names, any and all common law rights thereto, and registrations and applications for   registration thereof (including intent-to-use applications), all rights therein provided by applicable  Law, and all reissues, extensions and renewals of any of the foregoing.          “Trade Secrets” means information that derives economic value, actual or potential, from   not being generally known and not being readily ascertainable to other persons who can obtain  economic value from its disclosure or use and that is the subject of reasonable efforts by the                                         -14-   40733748.21  





 






     Company, Buyer or their respective Affiliates to maintain its secrecy or confidentiality and has  value as a result of such secrecy or confidentiality.  Trade Secrets may include either technical or   non-technical data, including, without limitation, information concerning the Customers   (including Customer information, identities, profiles, preferences and contacts), vendors,   suppliers, products, pricing or pricing strategies, personnel assignments and policies, the legal or   financial affairs, or the management of, in each case, the Company or Buyer or their respective   Affiliates.           “Transaction Documents” means, without duplication, this Agreement and all documents   to be executed or delivered pursuant to this Agreement and any other agreements, instruments, and   documents required to be delivered at the Closing.          “Transfer Taxes” means any sales, use, transfer, stamp, or similar Taxes imposed with   respect to the sale of the Company Shares pursuant to this Agreement.          “Treasury Regulations” means the regulations prescribed under the Code.          “Trusts” has the meaning set forth in the introductory paragraph hereof.          “Unresolved Items” has the meaning set forth in Section 2.5(d).          “WARN Act” has the meaning set forth in Section 6.1(h).          “Wire Transfer” means a payment in immediately available funds by wire transfer in lawful   money of the United States of America to such account or accounts as shall have been designated   by notice to the paying party.          “Working Capital” means an amount determined in accordance with the Example   Calculation set forth on Exhibit F.                   “Working Capital Adjustment” means an amount (which may be a negative) equal to the   Working Capital as of the Effective Time less the Target Net Working Capital.                                             ARTICLE II                                                                         PURCHASE AND SALE          Section 2.1 Purchase and Sale; Purchase Price.                  (a)   Upon the terms and subject to the conditions of this Agreement, at the   Closing, the Sellers shall sell all of the Company Shares to Buyer free and clear of all Liens, and   Buyer shall purchase all of the Company Shares from the Sellers.                (b)   The “Purchase Price” for the Company Shares shall be                       (i)   the Base Consideration, plus                       (ii)  the Working Capital Adjustment; plus                                         -15-   40733748.21  





 






                     (iii) any Earn-Out Payment as calculated and payable in accordance with              Section 2.6 hereof.         Section 2.2 Closing.  Unless this Agreement shall have been terminated pursuant to  Section 11.1 and subject to the satisfaction or waiver of each of the conditions set forth in  Article VII in accordance with this Agreement, the closing of the purchase and sale of the  Company Shares and the consummation of the other transactions contemplated by this Agreement  (the “Closing”) shall take place at the offices of Eversheds Sutherland (US) LLP, 700 Sixth Street,  NW, Washington, DC, at 10:00 am (Central Time) on the Business Day that is three (3) Business  Days following the date that all of the conditions set forth in Article VII are satisfied or waived  (other than those conditions that by their nature are to be satisfied at the Closing, but subject to the  satisfaction or waiver of those conditions at the Closing) in accordance with this Agreement unless  another date, time or place is agreed to by the parties hereto.  The actual date and time of the  Closing are referred to herein as the “Closing Date.”  The effective time of Closing shall, for all  purposes, be 12:00 am (Central Time) on the Closing Date (the “Effective Time”).         Section 2.3 Closing Deliveries.                 (a)   At the Closing the Sellers shall deliver to Buyer:                       (i)   certificates representing the Company Shares, endorsed in blank for              transfer or accompanied by duly executed blank stock powers with all appropriate              stock transfer tax stamps affixed, together with such other instruments as shall              reasonably be required by Buyer to vest fully in Buyer all right, title and interest in              and to the Company Shares free and clear of any Liens;                      (ii)  duly executed counterparts of each Non-Compete and              Nondisclosure Agreement;                      (iii) the Spousal Consents;                      (iv)  payoff letters evidencing the settlement of Indebtedness of the              Company and the discharge and release of any Liens related thereto as              contemplated by Section 5.10;                     (v)   a letter from the landlord of the Leased Real Property in a form              reasonably satisfactory to Buyer consenting (or not objecting) to the change in              control of the Company;                      (vi)  duly executed resignations, together with releases of the Company              and BCGS in substantially the form attached hereto as Exhibit E, reasonably              satisfactory to Buyer from each of the officers and directors of the Company and              BCGS identified by Buyer, effective as of the Closing from their positions as              officers and directors;                      (vii) a certificate dated the Closing Date and executed by Sellers stating              that the conditions set forth in Section 7.2(a) and 7.2(b) have been satisfied;                                        -16-  40733748.21  





 






                     (viii) a certificate dated the Closing Date and executed by the trustee of              each Trust stating that the condition set forth in Section 7.2(c) has been satisfied;                     (ix)  evidence of the termination of each Existing Employment              Agreement reasonably satisfactory to Buyer;                      (x)   evidence of the termination of (A) all Contracts set forth in Section              3.17(b)(ii) of the Seller Disclosure Schedule and the settlement of all amounts due              thereunder, (B) if the Closing Date occurs in 2019, all Benefit Plans and other              Contracts set forth in Section 3.9(b) of the Seller Disclosure Schedule, and (C) the              Company 401(k) Plan in accordance with Section 6.1(c), in each case reasonably              satisfactory to Buyer;                     (xi)  Certificate of the Secretary of the Company and BCGS dated as of              the Closing Date (A) certifying, as complete and accurate as of the Closing Date,              attached copies of the Company’s and BCGS’s Organizational Documents, each              amended as of such date, and (B) certifying and attaching all resolutions adopted              by the Company’s and BCGS’s board of directors authorizing the execution,              delivery and performance by the Company of this Agreement and by the Company              and BCGS (if applicable) of the other Seller Delivered Documents and the              consummation of all transactions contemplated hereby and thereby, and certifying              that such resolutions are in full force and effect and are all of the resolutions adopted              in connection with such transactions;                     (xii) Good Standing Certificate for the Company and BCGS from the              Pennsylvania Secretary of State;                     (xiii) an IRS Form 8023, with attached schedules as required, containing              all information required by the IRS with respect to each S Corporation Shareholder              (as defined in the Treasury Regulations) of the Company, and signed by each Seller              in accordance with the IRS instructions to such Form; and                     (xiv) evidence of termination of the Salary Continuation Agreement and              Phantom Stock Plan, in each case reasonably satisfactory to Buyer.               (b)   Deliveries at Closing by Buyer.  At the Closing, Buyer will pay or deliver  to the Sellers the following:                     (i)   each Seller’s Pro Rata Share of the Closing Payment in accordance              with Section 2.4(b) hereof;                     (ii)  a certificate dated the Closing Date and executed by an officer of              Buyer stating that the conditions set forth in Section 7.3(a) and 7.3(b) have been              satisfied;                      (iii) Certificate of the Secretary of the Buyer dated as of the Closing Date              certifying and attaching all resolutions adopted by the Buyer’s board of directors              authorizing the execution, delivery and performance by the Buyer of this                                        -17-  40733748.21  





 






                 Agreement and by the Buyer of the other Transaction Documents to which Buyer               is a party and the consummation of all transactions contemplated hereby and               thereby, and certifying that such resolutions are in full force and effect and are all               of the resolutions adopted in connection with such transactions; and                      (iv)  Good Standing Certificate for the Buyer from the Delaware               Secretary of State.                (c)   Each party shall deliver, or cause to be delivered, to the other party such   other documents as may be reasonably necessary to consummate the transactions contemplated by   this Agreement.          Section 2.4 Closing Payment.                  (a)   Not later than three (3) Business Days prior to the Closing Date, the Sellers   shall deliver to Buyer a statement (the “Pre-Closing Statement”) consisting of (i) an estimated pro   forma consolidated balance sheet of the Company and BCGS as of the Effective Time prepared in   accordance with the remaining provisions of this Section 2.4, together with (ii) a calculation of the   estimated Working Capital Adjustment as of the Effective Time derived from such pro forma   consolidated balance sheet, with the Indebtedness Payoff Amount and Company Transaction   Expenses estimated as of the Effective Time (the “Estimated Working Capital Adjustment”), and   (iii) an estimate of the Closing Consideration (the “Estimated Closing Consideration”).  All items   set forth in the Pre-Closing Statement shall be (A) based upon the Books and Records and prepared   in good faith, (B) based on the same format as the balance sheets contained in the Financial   Statements as of year-end 2017 with respect to the consolidated balance sheet and the Example   Calculation with respect to the Estimated Working Capital Adjustment, (C) prepared consistent   with the Applicable Accounting Principles and with respect to the Estimated Working Capital   Adjustment also consistent with the notes set forth in the Example Calculation, and (D)   accompanied with work papers and supporting documentation and a written certification from the   Chief Financial Officer of the Company certifying that the Pre-Closing Statement and calculation  therein comply with the requirements of this Section 2.4(a).                    (b)   At the Closing, Buyer shall pay to each Seller One-Day Notes in an amount   equal to such Seller’s Pro Rata Share of the result of (i) the Estimated Closing Consideration,   minus (ii) the Holdback Amount minus (iii) an amount to be held back pursuant to Section 5.14.    The aggregate amount required to be paid at the Closing pursuant to the One-Day Notes under   clauses (i), (ii) and (iii) of this Section is referred to as the “Closing Payment”.            Section 2.5 Accounts Receivable and Post-Closing Adjustment.                   (a)   Following the Closing, Sellers shall be entitled to, as an adjustment in the   Purchase Price, receive from the Company one hundred percent (100%) of (i) the Accounts   Receivable existing and aged two hundred forty (240) days or less as of the Closing Date that are   received by Company after the Closing Date and were not included in the calculation of Working   Capital Adjustment, and (ii) any other Accounts Receivable existing as of the Closing Date that   were not included in the calculation of Working Capital Adjustment and that are received by the   Company after the Closing Date but on or prior to December 31, 2019.  All Accounts Receivable                                         -18-   40733748.21  





 






     existing as of the Closing Date and not reflected in the calculation of Working Capital Adjustment   shall be identified as such in Section 3.5(d) of the Seller Disclosure Schedule as updated by Seller   as of the fifth (5th) Business Day prior to the Closing Date.  From and after the Closing Date,   Company shall use commercially reasonable efforts to collect the Accounts Receivable balances   aged two hundred forty (240) days or less and will remit such funds, net of the Company’s   collection expense, to Seller.                 (b)   As promptly as practicable, but no later than one hundred twenty (120) days   after the Closing Date, Buyer shall prepare and deliver to Sellers a statement (the “Post-Closing   Statement”) consisting of (i) a pro forma consolidated balance sheet of the Company and BCGS   as of the Effective Time, (ii) a calculation of the Working Capital Adjustment as of the Effective  Time derived from such pro forma consolidated balance sheet, including the Indebtedness Payoff  Amount and Company Transaction Expenses as of the Effective Time (the “Final Working Capital   Adjustment”), and (iii) a calculation of the Closing Consideration.  The Post-Closing Statement   shall be (A) based upon the Books and Records and prepared in good faith, (B) based on the same   format as the consolidated balance sheets contained in the Financial Statements as of year-end   2017 with respect to the consolidated balance sheet and the Example Calculation with respect to   the Working Capital Adjustment, (C) prepared consistent with the Applicable Accounting   Principles and with respect to the Working Capital Adjustment also consistent with the Example   Calculation and the notes therein, and (D) accompanied with work papers and supporting   documentation and a written certification from a responsible financial officer of Buyer certifying   that the Post-Closing Statement complies with the requirements of this Section 2.5(b).                 (c)   If Sellers disagree with the Post-Closing Statement on the basis that it   contains manifest mathematical errors or was not prepared in accordance with Section 2.5(b),   Sellers may, within thirty (30) days after its receipt of the Post-Closing Statement, deliver a notice   to Buyer disagreeing with the Post-Closing Statement and specifying in reasonable detail each   item that the Sellers dispute on such basis (a “Disputed Item”), the amount in dispute for each such   Disputed Item and the reasons supporting Sellers’ positions.  If the Sellers do not deliver a notice   of any Disputed Items within such thirty (30) day period, the Post-Closing Statement as delivered   by Buyer shall be final, conclusive and binding on the Buyer and Sellers.                 (d)   If a notice of disagreement shall be delivered in accordance with Section   2.5(c), Buyer and Sellers shall, during the fifteen (15) days following such delivery (the   “Resolution Period”), negotiate in good faith to reach agreement on the Disputed Items.  If, during   such period, Buyer and Sellers are unable to reach such agreement, they shall promptly thereafter   engage, and submit the unresolved Disputed Items (the “Unresolved Items”) to any of the   independent registered public accounting firms listed on Exhibit H, or, if none of such firms is   engaged, the parties will engage an independent registered public accounting firm that is selected   by Sellers (and not engaged or used by Seller or Buyer within the past five years) and reasonably   acceptable to Buyer (the “Independent Accountant”), which shall promptly review this Agreement   and the Unresolved Items; provided, that if Buyer and Sellers are not able to agree on the   accounting firm to serve as the Independent Accountant within ten (10) days after the end of the  Resolution Period, Buyer and Sellers shall request the American Arbitration Association to appoint  as the Independent Accountant an independent registered public accounting firm that has not had  a material relationship with Buyer, Sellers or any of their respective Affiliates (including the  Company) within the preceding two years, and such appointment shall be final, binding and                                         -19-   40733748.21  





 






   conclusive on Buyer and Sellers.  Buyer and Sellers shall use commercially reasonable efforts to  cause the Independent Accountant to issue its written determination with respect to the Unresolved  Items within thirty (30) days after the Unresolved Items are submitted for review.  Each party shall  use commercially reasonable efforts to furnish to the Independent Accountant such work papers,  books, records and documents and other information pertaining to the Unresolved Items as the  Independent Accountant may request. The Independent Accountant shall (i) make a determination  with respect to the Unresolved Items in a manner consistent with the principles set forth in this  Section 2.5, and in no event shall the Independent Accountant’s determination of the value of any  Unresolved Items be for an amount that is outside the range of Buyer’s and Sellers’ disagreement  on such Unresolved Items.  The final determination with respect to all Unresolved Items shall be  set forth in a written statement by the Independent Accountant delivered to Buyer and Sellers and  shall be final, conclusive and binding on Buyer and Sellers.  The fees, expenses and costs of the  Independent Accountant incurred in rendering any determination pursuant to this Section 2.5 shall  be borne by the Sellers, on the one hand, and Buyer, on the other hand, in inverse proportion as  they may prevail, in the aggregate, on all Unresolved Items resolved by the Independent  Accountant, based on the dollar amount of such Unresolved Items, which proportionate allocations  shall also be determined by the Independent Accountant at the time the determination of the  Independent Accountant is rendered on the Unresolved Items.                (e)   In connection with the preparation or review of the Pre-Closing Statement  and the Post-Closing Statement, each of Buyer and Sellers shall provide (or cause their respective  Affiliates, including the Company, to provide) the other with reasonable access to records,  documentation and employees as reasonably requested to the extent related to such preparation or  review.               (f)   Within five (5) days after the final determination of the Post-Closing  Statement:                      (i)   If the Final Working Capital Adjustment as finally determined              pursuant to Sections 2.5(b) or (c) above is greater than the Estimated Working              Capital Adjustment, Buyer shall owe Sellers such excess.  If the Final Working              Capital Adjustment as finally determined pursuant to Sections 2.5(c) or (d) above              is less than the Estimated Working Capital Adjustment, Sellers shall owe Buyer the              amount of such deficit.                        (ii)  The net amount (if any) pursuant to Section 2.5(f)(i) owed by Buyer              to the Sellers, on the one hand, or by the Sellers to Buyer, on the other hand, in each              case plus interest accrued at the Interest Rate from and including the Closing Date              but excluding the date of payment, is referred to as the “Final Adjustment Amount”;              it being understood and agreed that if the net effect pursuant to this Section 2.5(f)(ii)              is an increase in the Closing Payment, then within three (3) Business Days              following the final determination of the Final Adjustment Amount Buyer shall pay              by bank certified check or Wire Transfer to each Seller an amount in cash equal to              such Seller’s Pro Rata Share of the Final Adjustment Amount, and if the net effect              pursuant to this Section 2.5(f)(ii) is a decrease in the Closing Payment, then Buyer              shall claim the amount of such Final Adjustment Amount due to it from the              Holdback Amount.                                         -20-  40733748.21  





 






                       (iii) If the Final Adjustment Amount is payable to Buyer but is greater               than the Holdback Amount, then Buyer shall be entitled to (a) retain the entirety of               the Holdback Amount, and (b) if Sellers do not pay the amount by which the Final               Adjustment Amount exceeds the Holdback Amount within three (3) Business Days,               be entitled to pursue an indemnity claim against the Sellers under Section 10.1(a)(v)               for the amount by which the Final Adjustment Amount exceeds the Holdback               Amount. The Final Adjustment Amount shall be treated as an adjustment to the               Purchase Price for Tax purposes.          Section 2.6 Earn-Out Payments.                 (a)   Subject to the terms of this Section 2.6, Sellers shall be eligible to receive   an earn-out payment described in Section 2.6(b) if (i) the Company and BCGS achieve the revenue   target set forth below and (ii) Sellers shall have used their best efforts to Substantially Convert   Buyer’s “Retirement Advantage” platform to the platform of the Company within twelve months   of the Closing Date and have Substantially Converted such platform on or prior to the Earn-Out   End Date.  Any such earn-out payment shall be calculated on the Earn-Out End Date (as hereinafter  defined) and payable in accordance with this Section 2.6.  For purposes of this Section 2.6, the   following terms shall have the respective meanings set forth below:          “Benchmark Date” means September 30, 2018.          “Benchmark Revenue” means $8,655,662, representing the net revenue of the Company         and BCGS, calculated in accordance with Exhibit G, for the twelve-month period ending         on the Benchmark Date.            “Earn-Out End Date” means the third (3rd) anniversary of the Earn-Out Start Date.          “Earn-Out Start Date” means the first day of the first month following the Closing Date.          “Total Net Revenue” means the net revenue of the Company and BCGS for the twelve-        month period ending on the Earn-Out End Date, calculated in accordance with Exhibit G.          For the avoidance of doubt, (i) Total Net Revenue shall include net revenue of business         acquired on account of acquisitions, mergers, stock purchases, or asset purchases that occur         after the Closing Date and prior to the Earn-Out End Date to the extent made by the         Company or BCGS, as mutually agreed by the parties hereto, and (ii) Total Net Revenue        shall exclude the revenue generated from the business converted from the Buyer’s        “Retirement Advantage” platform to the platform of the Company.                  (b)   If the condition in Section 2.6(a)(ii) is satisfied, Buyer shall give the Sellers  written notice of Buyer’s calculation of the following amount (the “Earn-Out Payment”) within   ninety (90) days following the Earn-Out End Date:                      (i)   if the Total Net Revenue exceeds the Benchmark Revenue by fifteen               percent (15%) or more but less than nineteen percent (19%), the respective Seller’s               Pro Rata Share of $1,250,000.00;                                          -21-   40733748.21  





 






                     (ii)  if the Total Net Revenue exceeds the Benchmark Revenue by               nineteen percent (19%) or more but less than twenty-four percent (24%), the              respective Seller’s Pro Rata Share of $2,500,000.00;                      (iii) if the Total Net Revenue exceeds the Benchmark Revenue by              twenty-four percent (24%) or more, the respective Seller’s Pro Rata Share of              $5,000,000.00; and                      (iv)  if the Total Net Revenue does not exceed the Benchmark Revenue              or exceeds the Benchmark Revenue by less than fifteen (15%), zero.   The Earn-Out Payment, if any, will be payable to each Seller in accordance with the respective  Seller’s Pro Rata Share and will be paid by Buyer to each Seller by certified bank checks or Wire  Transfer no later than the third (3rd) Business Day following the notice delivered by Buyer pursuant  to this Section 2.6(b). For the avoidance of doubt, (i) the parties hereto acknowledge that the Earn- Out Payment, if any, is based on service fees the Company and its Subsidiaries generate and is not  in any way commission payments, (ii) each Seller’s right to receive their Pro Rata Share of the  Earn-Out Payment, if any, shall not be conditioned on (or measured with respect to), if applicable,  their continued employment with or services to the Company or its Affiliates and shall be treated  as additional Purchase Price for federal and state income tax purposes, and (iii) no Earn-Out  Payment shall be payable by Buyer if the Buyer’s “Retirement Advantage” platform has not been  Substantially Converted to the platform of the Company on or prior to the first anniversary date of  the Closing.               (c)   Notwithstanding anything herein to the contrary, if any indemnification  obligation is owing from Sellers to Buyer under Article VIII or Section 10.1 as of the date of any  Earn-Out Payment and the Holdback Amount has been exhausted such amount shall be deducted  from the Earn-Out Payment payable by Buyer to the Sellers ratably in accordance with the Sellers’  Pro Rata Share up to the Earn-Out Payment allocable to each such Seller.               (d)   Buyer shall provide its documentation in support of its calculation of the  Earn-Out Payment to the Sellers at the time of its notice to the Sellers of its calculation delivered  under Section 2.6(b), and the Sellers shall have thirty (30) days from the date of receipt of such  Earn-Out Payment or such notice, as the case may be, to deliver written notice of its objections to  the calculation of the Earn-Out Payment, specifying in reasonable detail the basis for the  objections.  If Sellers do not timely object, Buyer’s calculation of the Earn-Out Payment shall be  binding and conclusive.  If the Sellers object on a timely basis, the calculation of the Earn-Out  Payment shall not be binding and conclusive, and Buyer and the Sellers shall negotiate in good  faith to resolve the Sellers’ objections.  If Buyer and Sellers resolve such objections, the amount  they agree upon shall be final and binding, but if the objections cannot be resolved by such  negotiation within thirty (30) days after Buyer’s receipt of the Sellers’ objections, Buyer and  Sellers shall cause the calculation of the Earn-Out Payment, and all documents related thereto, to  be submitted to the Independent Accountant and the procedures, timelines and expense allocations  set forth in Section 2.5 with respect to the resolution of the Purchase Price as of the Closing Date  shall be followed to obtain final resolution of such Earn-Out Payment.                                         -22-  40733748.21  





 






                 (e)   Any increase in the Earn-Out Payment to be paid to Sellers determined  pursuant to Section 2.6(d) shall be made within three (3) Business Days after such payment has   been finally determined by certified bank checks or Wire Transfer from Buyer to each Seller based   on their Pro Rata Share.                (f)   From and after the Closing until the Earn-Out End Date, (i) Buyer shall and   shall cause any Affiliates of Buyer to, operate the Company Business in a commercially reasonable   manner, and (ii) Buyer shall not (A) cease offering products and services related solely to   retirement plans that are qualified under Section 401(a), (B) sell or transfer to any third-party not   affiliated with Buyer the Company, BCGS or the Company Business, (C) reduce the budget of the   Company Business below fifty percent (50%) of the budget of the Company Business as of the   Closing Date, or (D) take any action or inaction in bad faith with the intention of decreasing the   amount of any Earn-Out Payment or impairing Buyer’s ability to make any Earn-Out Payment;  provided that, except as set forth in the foregoing clause (ii), the provisions of this Section 2.6(f)   shall not (x) require Buyer or any Affiliate of Buyer (including the Company and BCGS) to   continue any line of business or service conducted or offered by the Company or BCGS as of any   date or (y) limit Buyer or any Affiliate of Buyer (including the Company and BCGS) from   modifying or changing any aspect of the Company Business.                (g)   Notwithstanding anything herein to the contrary, in the event there is a   Change of Control with respect to the Buyer prior to the Earn-Out End Date, the Earn-Out Payment   shall immediately vest at the rate and for the amount set forth in Section 2.6(b)(iii) and, subject to   Section 2.6(c), will be payable to each Seller in accordance with the respective Seller’s Pro Rata   Share, by certified bank checks or Wire Transfer no later than the tenth business day following the   event described in this Section 2.6(g).                                     ARTICLE III                                                         REPRESENTATIONS AND WARRANTIES OF THE SELLERS          The Seller Parties hereby jointly and severally represent and warrant to Buyer as follows:          Section 3.1 Company Organization and Corporate History.                  (a)   Organization.  Each of the Company and BCGS is a corporation duly   incorporated, organized, validly existing and in good standing under the laws of the   Commonwealth of Pennsylvania.  Each of the Company and BCGS (i) has the corporate power   and authority to own or lease all of its properties and assets and to carry on its business as it is now   being conducted, and (ii) is duly licensed or qualified to do business and in good standing in each   jurisdiction in which the nature of the business conducted by it or the character or location of the   properties and assets owned or leased by it makes such licensing or qualification necessary and is   not subject to any cost, restriction or penalty for failing to qualify (except where the failure to be   so licensed, qualified, or in good standing under this clause (ii) would not, individually or in the   aggregate, reasonably be expected to have a Company Material Adverse Effect).                  (b)   Organizational Documents.  Section 3.1 of the Seller Disclosure Schedule   sets forth a true, correct and complete copy of each of the Company’s, BCGS’s and each Trust’s                                         -23-   40733748.21  





 






   Organizational Documents as amended and/or restated and in effect.  No change has been made to  such Organizational Documents since December 31, 2015.                 (c)   Subsidiaries and Other Ownership Interests.  The Company has no  Subsidiaries or Affiliates other than its wholly-owned Subsidiary BCGS.  Other than BCGS, no  part of the Company Business is through or otherwise involving a Subsidiary or an Affiliate.    Section 3.1(c) of the Seller Disclosure Schedule lists each business or Person that Company or  BCGS has owned or operated within the last five (5) years (whether as a Subsidiary, through a  joint venture or otherwise).  Section 3.1(c) of the Seller Disclosure Schedule also lists: (i) all capital  stock or other direct or indirect ownership interests of Company or BCGS in any Person; and (ii)  all loans, advances or similar arrangements by Company or BCGS to any other Person (except for  trade terms extended to Customers in the Ordinary Course of Business).                 (d)   Acquisition or Sale of any Business.  Section 3.1(d) of the Seller Disclosure  Schedule lists each acquisition or sale (however effected) by Company or BCGS of any entity,  business or of a related group of assets and/or liabilities within the last five (5) years. Copies of all  agreements and closing documents relating to each such acquisition or sale have been provided to  Buyer.  Section 3.1(d) of the Seller Disclosure Schedule lists each such acquired entity, business  or related group of assets that has been merged into, or otherwise combined with or transferred to,  Company, BCGS or a predecessor thereof.         Section 3.2 Capital Structure.                 (a)   The authorized capital stock of the Company consists of 100,000 shares of  common stock, par value $0.01 per share. The common stock is divided into two classes, voting  and nonvoting common stock.  There are 100 authorized shares of Class A voting common stock,  of which twenty (20) shares are issued and outstanding and (such issued and outstanding stock,  the “Class A Common Stock”), and 99,900 authorized shares of Class B nonvoting common stock,  of which 49,980 shares are issued and outstanding (such issued and outstanding stock, the “Class  B Common Stock”), and are owned of record and beneficially by the Sellers in the respective  amounts and percentages of ownership set forth in Section 3.2(a) of the Seller Disclosure Schedule,  free and clear of all Liens and other restrictions except as set forth in Section 3.2(a) of the Seller  Disclosure Schedule.  The Sellers are the only record owners of capital stock of the Company and  own all right, title and interest in and to such Company Shares.  Section 3.2(a) of the Seller  Disclosure Schedule lists all issuances and redemptions of Company’s capital stock since  December 31, 2011.  All issuances, transfers and redemptions of the capital stock of the Company  and the Company’s predecessors in interest, were in full compliance with all applicable Law.                (b)   The authorized capital stock of BCGS consists of 200,000 shares of  common stock, par value $0.25 per share, of which 18,000 shares are issued and outstanding  (such  issued and outstanding stock, the “BCGS Shares”), all of which are owned of record and  beneficially by the Company, free and clear of all Liens and other restrictions.  Since 2000, no  Person other than the Company has ever owned any BCGS Shares or other equity interests in  BCGS.                 (c)   Except as set forth in Section 3.2(c) of the Seller Disclosure Schedule, none  of Company’s or BCGS’s capital stock is held in its treasury.  All Company Shares and BCGS                                        -24-  40733748.21  





 






     Shares are legally and validly issued, fully-paid and nonassessable, without violation of any  preemptive or dissenters’ or similar rights (and no preemptive or other subscription rights have  ever existed with respect to Company’s and BCGS’s capital stock) and in full compliance with   federal and state securities laws and other applicable Law.  Each of the Company and BCGS has   complied with the terms of its capital stock. Except as set forth in Section 3.2(c) of the Seller   Disclosure Schedule, there are no options, warrants, subscriptions, puts, calls or other rights,   commitments, undertakings or understandings to acquire, dispose of or restrict the transfer of, any   of Company’s or BCGS’s capital stock or other securities of any kind or class or rights, obligations   or undertakings convertible into Company securities or BCGS securities of any kind or class; nor   are there any stock option phantom stock, stock appreciation rights, or similar plans or programs   relating to the Company’s or BCGS’s capital stock, or any convertible securities or other rights,   agreements or commitments of any character relating to or obligating the Company or BCGS to   issue or sell any share of capital stock or any other interest in the Company or BCGS.  Each item   listed on Section 3.2(c) of the Seller Disclosure Schedule shall be terminated or otherwise cease   to be in effect as of no later than immediately prior to the Closing.  Neither the Company nor   BCGS is subject to any obligation to purchase, redeem or otherwise acquire any of its capital stock   or securities (or any options or rights or obligations described in the preceding sentence) upon the   occurrence of a specified event (and assuming that specified time periods have passed and   appropriate notices have been given) or otherwise.                    (d)   There are no voting trusts or other voting or similar agreements or   understandings to which the Company or any Seller is a party with respect to the voting of the   Company Shares.  There are no bonds, debentures, notes or other indebtedness of the Company   having the right to vote (or convertible into, or exchangeable for, securities having the right to   vote) on any matters on which holders of the Company Shares may vote.  Except for this   Agreement and restrictions imposed by applicable Law, there are no voting trusts, stockholder   agreements, proxies or other rights or agreements in effect with respect to the voting, transfer or   dividend rights of the Company Shares.                (e)   Sellers’ transfer of the Company Shares to Buyer pursuant to this   Agreement will pass to Buyer all right, title and interest to and in the Company Shares free of any   Lien or restriction and all other adverse claims whatsoever except, following the Closing,   restrictions as exist under applicable Laws relating to securities.          Section 3.3 Authority and Enforceability.                  (a)   Each Seller Party has the power and authority to execute, deliver and   perform each of the Seller Delivered Documents without the consent or action of any other person.    The execution, delivery and performance of the Seller Delivered Documents have been duly   authorized by all necessary action on the part of each such Seller Party in compliance with   governing or applicable agreements, instruments, documents and applicable Law.                (b)   Each trustee of each Seller that is a Trust is the duly appointed and acting   trustee of the Trust for which he or she is acting as trustee, which is identified next to such Seller’s   name in Section 3.3(a)(ii) of the Seller Disclosure Schedule, and is currently the only trustee of   such Trust. Sellers have previously delivered to Buyer a true and complete copy of each agreement   that establishes such Trust, which documents have not been amended since the date of such                                         -25-   40733748.21  





 






   delivery.  Each Trust is validly existing under the laws of the state whose law the terms of the  instrument creating such Trust invoke as governing such Trust, which is shown next to the name  of such Trust on Schedule 3.3(a)(ii). The trustee of each Trust has the capacity, power and authority  on behalf of such Trust to enter into this Agreement and the other Seller Delivered Documents to  be executed and delivered by such trustee pursuant to this Agreement in such trustee’s fiduciary  capacity on behalf of such Trust, to perform such trustee’s obligations hereunder and thereunder  on behalf of such Trust, and to sell to Buyer such Trust’s Company Shares for the consideration  provided in Section 2.1 as adjusted in accordance with this Agreement in each case without the  consent or action of any other person.  Since the creation of each Trust, no steps have been taken  to liquidate, dissolve, or otherwise adversely affect the organization, existence or operation of such  Trust.  The execution, delivery and performance of the Seller Delivered Documents have been  duly authorized by all necessary action on the part of the trustee of each Trust in compliance with  governing or applicable agreements, instruments, documents, duties and applicable Law.  On or  prior to the date hereof, the trustee of each Trust has delivered to Buyer an executed copy of the  applicable Certificate of Trust, and the representations made in the Certificates of Trust are hereby  incorporated by reference.               (c)   This Agreement has been duly and validly authorized, executed and  delivered by each Seller Party, and (assuming the valid authorization, execution and delivery of  this Agreement by Buyer) is the legal, valid and binding obligation of such Seller Party,  enforceable in accordance with its terms, and each of the other Seller Delivered Documents to  which a Seller is or will be a party has been duly and validly authorized by such Seller and will be  duly and validly executed and delivered by such Seller and, upon execution and delivery by such  Seller, will be (assuming the valid authorization, execution and delivery by the other party or  parties thereto) the legal, valid and binding obligation of such Seller, enforceable in accordance  with its terms, subject in each case to the effects of bankruptcy, insolvency, fraudulent conveyance,  reorganization, moratorium and other similar Laws relating to or affecting creditors’ rights  generally and general equitable principles (whether considered in a Proceeding in equity or at law).   Neither any act or omission of any Seller Party or any predecessor in interest, nor execution,  delivery or performance of this Agreement, has resulted in, or will result in, any person having any  claim or cause of action whatsoever involving ownership of  the Company or any of its assets.         Section 3.4 Consents and Approvals; No Conflict.  Except for the items set forth on  Section 3.4 of the Seller Disclosure Schedule, the execution and delivery by the Seller Parties of  this Agreement and of each other agreement, instrument and document to be executed and  delivered by the Sellers pursuant to this Agreement (this Agreement and such other agreements,  instruments and documents being referred to collectively as the “Seller Delivered Documents”) do  not, and the consummation by the Sellers of the transactions contemplated by the Seller Delivered  Documents will not, require any consent, approval, license, permit, order, qualification,  authorization of, or registration or other action by, or any filing with or notification to, any  Governmental Authority (each, a “Governmental Approval”) to be obtained or made by any Seller  Party or BCGS (except such consents, approvals, licenses, permits, orders, qualifications,  authorizations of, or registrations or other actions or filings which, individually or in the aggregate,  would not reasonably be expected to have a Company Material Adverse Effect).  The execution  and delivery by the Seller Parties of, and the consummation by the Seller Parties of the transactions  contemplated by the Seller Delivered Documents do not and will not (a) violate or conflict with  the Organizational Documents of the Company or BCGS or any Seller, (b) provided that all                                        -26-  40733748.21  





 






   consents, approvals, authorizations and other actions described in Section 3.4 of the Seller  Disclosure Schedule have been obtained or taken, conflict with or violate in any material respect  any Law or other Governmental Order applicable to the Company or BCGS or by which any of  the Company’s or BCGS’s properties or assets are bound or subject, (c) in the case of the Trusts,  violate or conflict with the trustee’s fiduciary duties or (d) result in any material breach of, or  constitute a material default (or event that, with the giving of notice or lapse of time, or both, would  constitute a default) under, or give to any Person any rights of termination, acceleration or  cancellation of, or result in the creation of any Lien (other than Permitted Liens) on any of the  assets or properties of the Company or BCGS pursuant to any Material Contract to which the  Company or BCGS is a party of or by which the Company’s or BCGS’s properties or assets are  bound.              Section 3.5 Financial Information; Absence of Undisclosed Liabilities.                (a)   The Sellers have previously delivered or made available to Buyer true,  accurate and complete copies of (i) BCGS’s audited financial statements as of and for the years  ended December 31, 2015, December 31, 2016, and December 31, 2017 (the “BCGS Financial  Statements”), (ii) consolidated and consolidating balance sheets and statements of operations, cash  flows and changes in stockholder’s equity of the Company and BCGS, as of and for the years  ended December 31, 2015 and December 31, 2016, and with the related compilation reports of the  Company’s independent accountant, (iii) the unaudited consolidated and internally prepared  balance sheet and statements of operations, cash flows and changes in stockholder’s equity of the  Company and BCGS as of December 31, 2017 and for the nine (9) months ended September 30,  2018 (the “Quarterly Financial Statements” and, together with the statements described in clauses  (i) and (ii) above, collectively the “Financial Statements”), and (iv) an example of the Company’s  calculation of Working Capital as of May 31, 2018 (the “Example Calculation”).  The Quarterly  Financial Statements are subject to normal and recurring year-end adjustments (which will not be  material individually or in the aggregate) and the absence of notes.               (b)   The Financial Statements and items therein: (i) have been prepared and are  in accordance with the Books and Records and with respect to the statements set forth in Section  3.5(a)(ii), accounts and entries therein relating to BCGS have been prepared and are in accordance  with the BCGS Financial Statements; and (ii) except as set forth in Section 3.5(b) of the Seller  Disclosure Schedule (A) have been prepared in accordance with Applicable Accounting Principles  on a consistent basis throughout the periods covered by such statements and (B) fairly present in  all material respects the Company’s consolidated or BCGS’s (as applicable) financial condition  and results of Company’s consolidated or BCGS’s (as applicable) operations, cash flows and  changes in shareholder’s equity as of their respective dates or for the periods thereof; provided that  the Quarterly Financial Statements are subject to normal recurring year-end adjustments (which  will not be material individually or in the aggregate) and the absence of notes. The Example  Calculation is based on the Books and Records and has been prepared in accordance with  Applicable Accounting Principles and consistent with the notes contained therein.  Neither the  Company nor any Seller has received any complaint, allegation, assertion or claim of any material  inadequacy in the Company’s internal accounting controls or the accuracy of the Financial  Statements and, to the Knowledge of Seller Parties, there is no basis for any such complaint,  allegation, assertion or claim.                                        -27-  40733748.21  





 






                 (c)   Neither the Company nor BCGS has any liability of any nature (whether   accrued, absolute, contingent, changing, known, unknown, determinable, indeterminable,   liquidated, unliquidated or otherwise and whether due or to become due and, thus, whether or not   such would be considered a liability for generally accepted accounting principles), except (i) as   and to the extent expressly reflected or specifically reserved against in the Financial Statements   (which reserves are adequate) or, pursuant to the Applicable Accounting Principles, where such   liabilities are not required to be reserved against or reflected in the Financial Statements or notes   thereto, (ii) as set forth in Section 3.5(c) of the Seller Disclosure Schedule, or (iii) for trade   payables and similar ordinary and necessary liabilities (none of which is a liability or obligation   for breach of contract, warranty, tort or infringement and excluding liabilities arising from the   borrowing of money or secured indebtedness or negligent or unlawful actions of Company or   BCGS or their respective officers, directors, shareholders, agents, employees or Affiliates) arising   in the Ordinary Course of Business since September 30, 2018.  Neither the Company nor BCGS   has any Indebtedness other than the Indebtedness set forth on Exhibit B.                (d)   Section 3.5(d) of the Seller Disclosure Schedule sets forth an accurate and   complete breakdown and aging of all Accounts Receivables of the Company and BCGS as of   September 30, 2018. All of the Accounts Receivable are valid accounts receivable which arose in   bona fide sales or services transactions in the Ordinary Course of Business. Except as set forth in   Section 3.5(d) of the Seller Disclosure Schedule, the Accounts Receivable are collectible in full   within 90 days after their respective billing dates subject to the reserve for doubtful accounts set   forth on the Quarterly Financial Statements.                (e)   The Company and BCGS have devised and maintained systems of internal   accounting controls with respect to the Company Business sufficient to provide reasonable   assurances that (i) all transactions are executed in accordance with management’s general or   specific authorization, (ii) all transactions are recorded as necessary to permit the preparation of   Financial Statements in conformity with the Applicable Accounting Principles and to maintain   proper accountability for items, (iii) access to its property and assets is permitted only in   accordance with management’s general or specific authorization and (iv) recorded accountability   for items is compared with actual levels at reasonable intervals and appropriate action is taken with   respect to any differences.                (f)   Each of the Company and BCGS has good and valid title to, or a valid   leasehold interest in, all of its Assets (other than “off-the-shelf” or software that is available  generally through retail distribution networks or is subject to “shrink-wrap” or “click wrap” license  agreements or retail software). All such Assets (including leasehold interests) are free and clear of  all Liens except for Permitted Liens and except as set forth on Section 3.5(f) of the Seller   Disclosure Schedule.  Except as set forth in Section 3.5(f) of the Seller Disclosure Schedule, the   Assets and Permits are sufficient for the continued conduct of the Company Business after the   Closing in substantially the same manner as conducted prior to the Closing.            Section 3.6 Real Property Interest.                  (a)   Neither the Company nor BCGS owns any real property.  Neither the   Company nor BCGS is a party to any agreement or option to purchase any real property or interest                                          -28-   40733748.21  





 






   therein.  Neither the Company nor BCGS has any liability arising out of the prior ownership of  real property by it or its predecessors in interest.               (b)   Section 3.6(b) of the Seller Disclosure Schedule sets forth a list of all real  property leases to which the Company or BCGS is a party (whether as a (sub)lessor, (sub)lessee,  guarantor or otherwise) (the “Company Real Property Leases”; all real property in which the  Company or BCGS holds a leasehold interest, whether as lessee or sublessee, the “Leased Real  Property”) and the street address with respect to the Company Real Property Leases.  Except for  the Company Real Property Leases identified in Section 3.6(b) of the Seller Disclosure Schedule,  the Company and BCGS do not own any interest (fee, leasehold or otherwise) in any real property.   Except as set forth in Section 3.6(b) of the Seller Disclosure Schedule, the Company and BCGS  enjoy peaceful and undisturbed possession of the Leased Real Property.                (c)   Except as set forth in Section 3.6(b) of the Seller Disclosure Schedule, the  Company or BCGS owns a valid leasehold interest in the Leased Real Property, which is free and  clear of any Liens.               (d)   Each Company Real Property Lease is in full force and effect and  enforceable by the Company or BCGS, in accordance with its terms.  Since December 31, 2015,  neither the Company nor BCGS has received any written notice of default with respect to any  Company Real Property Lease, and since December 31, 2015, no event has occurred and no  condition exists that, with notice or lapse of time or both, would constitute a default by the  Company or BCGS or, to the Knowledge of Seller Parties, any other part thereto, under any of the  Company Real Property Leases.  Neither any Seller Party nor BCGS has assigned or placed any  Lien upon any Leased Real Property.         Section 3.7 Plan Sponsors and Plans.                 (a)   Except as set forth in Section 3.7(a) of the Seller Disclosure Schedule, since  December 31, 2017, (i) none of the Plan Sponsors set forth on Section 3.7(b) of the Seller  Disclosure Schedule has terminated, or notified Company, BCGS or any Seller in writing of an  intention not to renew or to terminate, all or a material portion of the services related to the  Company Business, and (ii) to the Knowledge of Seller Parties, none of the Plan Sponsors set forth  on Section 3.7(b) of the Seller Disclosure Schedule has otherwise indicated that any Plans are or  will be subject to any requests for proposals.               (b)   Section 3.7(b) of the Seller Disclosure Schedule sets forth a true and  complete list of each Plan as of June 30, 2018 that is part of the Company Business and indicates  for each Plan (i) the plan type (non-qualified deferred compensation plans within the meaning of  Section 409A(d)(1) of the Code, qualified defined contribution or defined benefit plans, including  whether such plan qualifies under Section 401(a), 401(k), 403(b) or 457(b) of the Code, or other  arrangements or programs), (ii) whether such Plan is, as of the date hereof, to the Knowledge of  Seller Parties, subject to an outstanding request for proposal, (iii) the number of Participants in  such Plan as of such date, and (iv) the Plan Sponsor to the extent applicable and the revenues  generated by each such Plan Sponsor for the twelve months ended December 31, 2017.         Section 3.8 Material Contracts.                                          -29-  40733748.21  





 






                 (a)   Section 3.8(a) of the Seller Disclosure Schedule sets forth a true and   complete list of each of the Material Contracts.  Each Material Contract is a legal, valid, binding   and in all material respects enforceable obligation of Company or BCGS, and, to the Knowledge   of Seller Parties, of each other party to such Material Contract.  Except as set forth in Section   3.8(a) of the Seller Disclosure Schedule, neither the Company nor BCGS nor, to the Knowledge   of the Seller Parties, any other party thereto is in material breach or violation of, or in material   default under, any Material Contract and each such Material Contract is in full force and effect in   all material respects, and, to the Knowledge of Seller Parties, there does not exist under any   Material Contract any event or condition that, after notice or lapse of time or both, would constitute   a material violation, breach or event of default thereunder.  Sellers have made available to Buyer   a true and correct copy of each Material Contract.  The Material Contracts include a true, accurate   and complete list of all Contracts evidencing Indebtedness of the Company or BCGS.                (b)   Except as set forth in Section 3.8(b) of the Seller Disclosure Schedule,   neither the Company nor BCGS has received from any other party to a Material Contract any   notice in writing of termination or intention to terminate such Material Contact or any notice in   writing of intention to otherwise reduce amounts payable to Company or BCGS.                (c)   There are no fees paid to Company or BCGS that are a condition of or   inducement for inclusion of any Fund as an investment option for Plan Sponsors to make available   to Participants.  Section 3.8(c) of the Seller Disclosure Schedule contains a true and correct list of   all Funds as of the date hereof.          Section 3.9 Employee Benefits; Employees.                (a)   Section 3.9(a) of the Seller Disclosure Schedule sets forth a true and   complete list of each Benefit Plan. The Company has delivered or made available to Buyer   complete and correct copies of all Benefit Plans, including any amendments thereto and the current   summary plan description thereof, all summaries of material modifications, and any other   summary of the Benefit Plans, along with, in each case and to the extent applicable, (i) true and   complete descriptions of the material terms of any unwritten Benefit Plans; (ii) true and complete   copies of any employee handbooks or similar documents describing such Benefit Plans; (iii)   insurance policies related to the Benefit Plans; (iv) all non-routine communications received from  or sent to the IRS, the Pension Benefit Guaranty Corporation or the U.S. Department of Labor  (including a written description of any such oral communication) with respect to such Benefit Plan;  (iv) true and complete copies of each Form 5500 filed for such Benefit Plan (including all  attachments, audit reports and schedules), actuarial reports, summaries of material modifications,  summary annual reports, and any other required employer notices (including governmental filings  and descriptions of changes to Benefit Plans) relating to the Benefit Plans, in each case, for the  last three (3) plan years, as applicable; (v) true and complete copies of the most recent IRS  determination letter or opinion letter; and (vi) a schedule of awards or benefits provided for under  each Benefit Plan.                 (b)   Except as set forth in Section 3.9(b) of the Seller Disclosure Schedule, all   Benefit Plans have been maintained and operated in all material respects in accordance with their   terms, ERISA, the Code and other applicable Laws.  The Company and each ERISA Affiliate have   satisfied all of their material obligations under or with respect to each Benefit Plan under applicable                                         -30-   40733748.21  





 






     Law and the terms of such Benefit Plan.  The Company and each ERISA Affiliate have timely   made all contributions, premiums and other payments required to be made with respect to such   Benefit Plan on or before their due dates and, if not yet due, such items have been properly reflected   or accrued on the Company’s financial statements to the extent required.  No circumstances exist   that would result in a liability to the Company (whether direct or indirect) under Title IV of ERISA   with respect to any defined benefit pension plan that is or has been sponsored, maintained, or   contributed to by the Company or any of its ERISA Affiliates.  None of the Company or any of its   ERISA Affiliates has (or has ever had) any liability with respect to any (i) “multiemployer plan,”   as defined in Section 3(37) of ERISA, (ii) “multiple employer plan,” as described in Section 413(c)   of the Code, (iii) “multiple employer welfare arrangement,” as defined in Section 3(40) of ERISA,   (iv) “voluntary employees’ beneficiary association,” as defined in Section 501(c)(9) of the Code,   or (v) a Benefit Plan covered by Title IV of ERISA.  Each Benefit Plan that is a “nonqualified   deferred compensation plan” within the meaning of Section 409A(d)(1) of the Code and that is   subject to Section 409A of the Code is set forth in Section 3.9(b) of the Seller Disclosure Schedule   and, except as set forth in Section 3.9(b) of the Seller Disclosure Schedule, has been operated in   compliance in all respects with Section 409A of the Code and the final regulations and other   applicable guidance issued thereunder.  The Company has not paid and will not pay in connection   with the consummation of the transactions contemplated by this Agreement compensation to any   current or former employee or independent contractor of the Company pursuant to a Benefit Plan   in a manner that would reasonably be expected to cause compensation paid under such plan to   become subject to the Tax imposed by Section 409A(a)(1)(B) or 409A(b)(5) of the Code.                (c)   Each Benefit Plan that is intended to qualify under Section 401(a) of the   Code, and each amendment thereto, is the subject of a favorable determination letter (or opinion   letter, if applicable) from the IRS as to its qualification under the Code, and, to the Knowledge of   Seller Parties, no circumstances exist that would reasonably be expected to adversely affect the   validity of an Benefit Plan’s tax-qualification.  All amendments and actions required to bring each   Benefit Plan into material conformity with the applicable provisions of ERISA, the Code and other   Law have been made or taken, except to the extent such amendments or actions are not required   by Law to be made or taken until after the Closing Date.                 (d)   Neither the execution of this Agreement nor the consummation of the   transactions contemplated hereby will (either alone or together with any other event) entitle any   Employee and/or Seller to severance, retention, change of control or other similar pay or benefits   under, or accelerate the time of payment or trigger any payment or funding (through a grantor trust   or otherwise) of compensation or benefits under, or increase the amount payable or trigger any  other material obligation pursuant to, any Benefit Plan. Neither the Company nor BCGS has made  any payment which constitutes an “excess parachute payment” within the meaning of Code  §280(G), and no payment by the Company or BCGS required to be made under any written or oral  agreement will, if made, constitute an “excess parachute payment” within the meaning of Code  §280(G).  Neither the execution of this Agreement nor the consummation of the transactions  contemplated hereby will (either alone or together with any other event) result in any payment that  could constitute an “excess parachute payment” within the meaning of Section 280G of the Code.                (e)   Except as set forth in Section 3.9(e) of the Seller Disclosure Schedule,   neither the Company nor BCGS has any obligations for post-termination welfare or retirement  benefits other than coverage mandated by applicable Law.  Neither the Company nor BCGS                                         -31-   40733748.21  





 






   thereof has any obligation or commitment to adopt or approve any plan, arrangement or other  scheme that will become a Benefit Plan, or, except where required by Law, any amendment to any  Benefit Plan.  No proposal or commitment has been communicated to any Continuing Employee  regarding the introduction, increase or improvement of any Benefit Plan.  Neither the Company  nor BCGS has made any loan or advance, or provided any other form of financial assistance to  any Employee or Seller that is still outstanding as of the Closing.  Neither the Company nor BCGS  has any defined benefit plan.               (f)   Except for accruals disclosed on the latest balance sheet, the Company and  BCGS do not have any liabilities (i) for any bonus payments to any employee, manager, director,  officer or independent contractor (or any former employee, manager, director, officer or  independent contractor), (ii) for any workers’ compensation benefits which have or, to the  Knowledge of Seller Parties, may become payable as a result of events prior to Closing, (iii) for  any matching or other employer contributions to any 401(k) plan, (iv) to any employee, director  or independent contractor (or any former employee, director or independent contractor) related to  compensation or for benefits accrued prior to Closing under any Benefit Plan (including with  respect to any accrued but unused or unpaid vacation, sick time or other paid time off), or (v) to  any employee, manager, director, officer or independent contractor arising out of any acts or  omissions by the Sellers or the Company or BCGS prior to the Closing.               (g)   Section 3.9(g) of the Seller Disclosure Schedule lists each Employee as of  the date of this Agreement and as updated no later than five (5) days before the Closing Date, and  for each such Employee, (i) the individual’s title or position (including whether full or part time  and whether hourly, salaried, or commissioned), (ii) the individual’s job location, (iii) the  individual’s date of hire, (iv) the individual’s current base salary or hourly wages and base salary  or hourly wages for the last three (3) completed fiscal years, and (v) for the last three (3) completed  fiscal years, the individual’s annual incentive and bonus compensation paid and the target  incentive compensation for the current year (with each form of incentive compensation separately  listed and including any commissions).  Section 3.9(g) of the Seller Disclosure Schedule also lists  all individuals providing services to the Company or otherwise with respect to the Company  Business of more than five (5) hours per month as consultants or other independent contractors.               (h)   Section 3.9(h) of the Seller Disclosure Schedule lists each written (i)  employment agreement and offer letter with any Employee; (ii) personal service contracts for  individuals who perform services for the Company or BCGS in the capacity of an independent  contractor; and (iii) non-compete, non-solicit, confidentiality or proprietary rights agreements with  current or former Employees or independent contractors of the Company or BCGS, which with  respect to clauses (i), (ii) and (iii) are currently in effect, and true and complete copies of all such  agreements referred to in clauses (i), (ii) and (iii) above (and any amendments thereto) have been  furnished or made available to Buyer, and, with respect to the type of agreements set forth in  clauses (i) and (ii) above, neither the Company nor BCGS is a party to any such oral agreements  which cannot be terminated at will by the Company or BCGS without penalty or any continuing  obligations thereunder.  Except as set forth on Section 3.9(h) of the Seller Disclosure Schedule, to  the Knowledge of Seller Parties, no Employee or independent contractor of the Company or BCGS  is a party to, or is otherwise bound by, any agreement or arrangement, including any  confidentiality, noncompetition, or proprietary rights agreement, between such Employee or  independent contractor, as the case may be, and any other Person, in each case, that (x) limits the                                        -32-  40733748.21  





 






   Employee’s or independent contractor’s ability to perform such Employee’s or independent  contractor’s duties to the Company or BCGS, or (y) has a negative material effect on the Company  or BCGS.               (i)   Neither the Company nor BCGS is party to any labor or collective  bargaining agreements.  There has never been any union organizing activity or similar activity  affecting the Company, BCGS, or any Employees.  The Company and BCGS have complied, in  all material respects, with all Laws related to employment and labor, including those related to  equal employment opportunity, worker classification, affirmative action, nondiscrimination,  immigration, wages, hours, benefits, collective bargaining, the payment of social security and  similar Taxes, occupational safety and health, and plant closings, the Fair Labor Standards Act and  the WARN Act.  The Company and BCGS have not failed to pay any current or former employees  for any wages (including overtime), salaries, commissions, bonuses, benefits or other direct  compensation for any services performed by them or amounts required to be reimbursed to such  individuals.  Neither the Company nor BCGS has received any notice that it is not in or has not  been in compliance with any Laws relating to the employment of labor, including any Laws  relating to wages, hours, collective bargaining, worker classification, affirmative action, the  WARN Act, the payment of social security and similar taxes, equal employment opportunity,  employment discrimination and employment, occupational or workplace safety or that the  Company is liable for any arrears of wages or any taxes or penalties for failure to comply with any  of the foregoing.  The Company and BCGS have, for all purposes (including coverage and benefits  under Benefit Plans, overtime and payroll tax purposes) correctly classified those individuals  performing services as common law employees, leased employees, independent contractors or  agents of the Company or BCGS.  Any and all notices to, or filings or registrations with, any labor  organizations, works council or any similar person, required to be made by the Company or BCGS  in connection with the execution of this Agreement have been timely made.               (j)   There are no pending or, to the Knowledge of Seller Parties, threatened  material claims against the Company or BCGS under any Law related to employee benefits  (including relating to the Benefit Plans, other than routine claims for benefits), employment or  labor.  There are no charges with respect to or relating to the Company, BCGS or the Employees  pending before any applicable Governmental Authority responsible for the prevention of unlawful  employment practices, and neither the Company nor BCGS has received notice from any  Governmental Authority responsible for the enforcement of labor or employment Laws of an  intention to conduct an investigation of the Company or BCGS, and no such investigation is in  process.               (k)   The Company, BCGS and each Employee is in material compliance with  all applicable visa and work permit requirements, and no visa or work permit held by an Employee  will expire within six (6) months.         Section 3.10 Taxes.  Except as set forth on Section 3.10 of the Seller Disclosure  Schedule:                 (a)   The Seller Parties have made or will make available prior to the Closing to  Buyer correct and complete copies of all federal and state income, state, franchise and excise, state  sales and use, personal property, federal and state payroll (including unemployment), escheat and                                        -33-  40733748.21  





 






   unclaimed property (if required for any Tax Return), and material local business Tax Returns filed  with respect to the Company and BCGS (together with all examination reports and statements of  deficiencies assessed against or agreed to by the Company or BCGS) with respect to any taxable  period ending on or after December 31, 2013.  All such Tax Returns since December 31, 2015,  have been delivered to Buyer.               (b)   (i) Each of the Company and BCGS has properly and timely filed all Tax  Returns required to be filed by it, all of which are correct and complete in all material respects and  were prepared in compliance with all applicable Laws; (ii) each of the Company and BCGS has  paid all Taxes required to be paid by it (whether or not shown on a Tax Return); (iii) no audit of  the Company or BCGS by any Governmental Authority has been conducted, is currently pending  or, to the Knowledge of the Seller Parties, is threatened, and no notice of any proposed audit, or  of any Tax deficiency or adjustment, has been received by the Company or BCGS; (iv) there are  no agreements or waivers currently in effect that provide for an extension of time for the  assessment of any Tax against the Company or BCGS; (v) the Financial Statements fully accrue  all actual and contingent liabilities for Taxes with respect to all periods through the dates thereof  in accordance with Applicable Accounting Principles; (vi) since the date of the Quarterly Financial  Statements, neither the Company nor BCGS has incurred any liabilities for Taxes except in the  Ordinary Course of Business; (vii) no Action is pending or has been threatened, and no claim has  been asserted against or with respect to the Company or BCGS in respect of any Tax; and (viii) no  claim has been made by a Governmental Authority in a jurisdiction where a Tax Return is not filed  by or on behalf of the Company or BCGS that the Company or BCGS is subject to Tax in that  jurisdiction.                      (c)   Neither the Company nor BCGS has participated in any transaction that  could give rise to a disclosure obligation as a “reportable transaction” under Section 6111 of the  Code and the Treasury Regulations thereunder or any similar provision under other similar  applicable Laws.               (d)   Neither the Company nor BCGS is, nor has it ever been, a United States real  property holding corporation within the meaning of Section 897(c)(2) of the Code during the  applicable period specified in Section 897(c)(1)(A)(ii) of the Code. No Seller Party is a “foreign  person” as such term is defined in Section 1445 of the Code.               (e)   Neither the Company nor BCGS has ever been either the “distributing  corporation” (within the meaning of Section 355(a)(1) of the Code) or the “controlled corporation”  (within the meaning of Section 355(a)(1) of the Code) in a distribution that is described, or  purported to be described, in Section 355 of the Code. Within the last five years, neither the  Company nor BCGS has been a party to a “reorganization” as that term is defined in Section 368  of the Code.               (f)   Each of the Company and BCGS   has materially complied with the  provisions of the Code relating to the withholding and payment of Taxes, including, without  limitation, the withholding and reporting requirements under Code sections 1441 through 1464,  3401 through 3406, and 6041 through 6049, as well as similar provisions under any other  applicable Laws, and has, within the time and in the manner prescribed by Law, withheld from  employee wages and paid over to the proper Governmental Authority all amounts required. Each                                        -34-  40733748.21  





 






   of the Company and BCGS has appropriately classified all service providers as either employees  or independent contractors for all Tax purposes. Each of the Company and BCGS (i) has collected  and remitted all applicable sales and/or use Taxes to the appropriate Governmental Authority or  (ii) has obtained, in good faith, any applicable sales and/or use Tax exemption certificates.                (g)   Neither Company nor BCGS has received any Tax Ruling or entered into a  Tax Closing Agreement with any Governmental Authority that would have a continuing effect  after the Closing Date. For purposes of the preceding sentence, the term “Tax Ruling” shall mean  written rulings of a Governmental Authority relating to Taxes, and the term “Tax Closing  Agreement” shall mean a written and legally binding agreement with a Governmental Authority  relating to Taxes.               (h)   Except as set forth in Section 3.10(h) of the Seller Disclosure Schedule, the  Company has been a validly electing S corporation within the meaning of Sections 1361 and 1362  of the Code at all times since 2003, and it will be a valid S corporation at all times up to the  Effective Time. The Company will not be liable for any Tax under Code Section 1374 in  connection with the deemed sale of the Company’s assets (including the assets of any qualified  subchapter S subsidiary) caused by the Section 338(h)(10) Election (as hereinafter defined).  The  Sellers have not filed (and will not file) any income tax return, election or other document that is  inconsistent with the Company’s classification as an “S” Corporation for applicable Tax purposes  and the beneficiaries of Lisa Arroyo Trust have filed joint federal income tax returns for all years  since 2008.  The Company has not in the past five years (i) acquired assets from a C corporation  in a transaction in which the Company’s Tax basis for the acquired assets was determined, in whole  or in part, by reference to the Tax basis of the acquired assets (or any other property) in the hands  of the transferor, or (ii) except for BCGS, acquired the stock of any corporation that is a qualified  subchapter S subsidiary.               (i)   Except as set forth in Section 3.10(h) of the Seller Disclosure Schedule,  BCGS has been a qualified subchapter S subsidiary within the meaning of Section 1361(b)(3)(B)  of the Code at all times during its existence.               (j)   Except as set forth in Section 3.10(j) of the Seller Disclosure Schedule, all  Sellers that are organized as trusts qualify either as a qualified subchapter S trust within that  meaning of Section 1361(d) of the Code or an electing small business trust within the meaning of  Section 1361(e) of the Code.                (k)   The Salary Continuation Agreement does not cause the Company to not  confer identical rights to its shareholders with respect to distribution and liquidation proceeds  within the meaning of Treas. Reg. § 1.1361-1(1).          Section 3.11 Compliance with Law; Permits.                 (a)   Except as otherwise qualified in this Agreement, the Company and BCGS  have, since December 31, 2015, been in compliance, in all material respects, with all applicable  Laws, including Laws related to privacy, Permits and Governmental Orders applicable to it or its  assets, properties or Company Business.  Neither the Company nor BCGS is a party to, or bound  by, any Governmental Order that is material to the Company Business.  Neither the Company nor                                        -35-  40733748.21  





 






     BCGS has at any time since December 31, 2015 (i) received any written notice from any   Governmental Authority regarding any actual or alleged material violation of, or failure to comply   with any applicable Law or (ii) to the Knowledge of Seller Parties, been placed under investigation   with respect to any material violation of applicable Law.  The Company and BCGS has made   available to the Buyer true and correct copies of all reports or other written correspondence   between the Company or BCGS and any Governmental Authority or any Person acting on behalf   of a Governmental Authority since December 31, 2015 relating to any unclaimed property or   escheat matters and the Company and BCGS has complied with all unclaimed property or escheat   obligations.  Neither the Company nor BCGS underwrites insurance policies, collects premiums   or settles any insurance claims.                (b)   The Company and BCGS hold all material governmental qualifications,   registrations, filings, licenses, permits, approvals or authorizations necessary to conduct the   Company Business and to own or use its assets and properties associated with the Company   Business, as the Company Business, assets and properties are conducted, owned and used by the   Company and BCGS (collectively, the “Permits”).  All material Permits are valid and in full force   and effect.  Neither the Company nor BCGS is the subject of any pending or, to the Knowledge of  Seller Parties, threatened Action seeking the revocation, suspension, termination, modification or  impairment of any material Permit. There is no Governmental Order that would be binding on the  Company or BCGS following the Closing that prohibits or restricts the payment of shareholder  dividends or other shareholder distributions by the Company or BCGS.  The Company and BCGS  hold all applicable insurance licenses they are required to hold to conduct the Company Business,   including third party administrator, insurance agency or producer licenses, under any applicable   state Law.                (c)   Except as qualified herein, to the Knowledge of Seller Parties, each of the   Company and BCGS and their Affiliates, and to the Knowledge of Seller Parties, the Producers,   are and have been in connection with the Company Business, in material compliance in with   applicable Laws regulating the marketing and sale of securities, life insurance policies and annuity   contracts, regulating advertisements, requiring mandatory disclosure of information relating to the   securities, policy information, requiring employment of standards to determine if the purchase of   a policy or contract is suitable for an applicant, prohibiting the use of unfair methods of   competition and deceptive acts or practices and regulating replacement transactions. For purposes   of this Section 3.11(c), (i) “advertisement” means any material designed to create public interest   in life insurance policies and annuity contracts or in an insurer, or in an insurance producer, or to   induce the public to purchase, increase, modify, reinstate, borrow on, surrender, replace or retain   such a policy or contract, and (ii) “replacement transaction” means a transaction in which a new   life insurance policy or annuity contract is to be purchased by a prospective insured and the   proposing producer knows or should know that one or more existing life insurance policies or   annuity contracts will lapse, or will be forfeited, surrendered, reduced in value or pledged as   collateral.                (d)   The Company and BCGS are in material compliance with applicable anti-  money laundering Laws. The Company and BCGS have established and maintain an anti-money   laundering program, which includes written internal policies, procedures and controls, including a   means for monitoring and identifying suspicious activity, the designation of an anti-money   laundering compliance officer, an ongoing employee training program, an independent audit                                         -36-   40733748.21  





 






     function to test such programs annually, and any additional requirements set forth in the rules of   any self-regulatory organization (including FINRA) of which the Company or BCGS is a member.                (e)   Neither the Company nor BCGS has, directly or indirectly, (i) made   political contributions or expenditures except in accordance with applicable Law, or (ii) offered or   provided any unlawful remuneration, entertainment or gifts to any Person, including any official   of any Governmental Authority.  No Customer of BCGS is listed on any published list of blocked   persons maintained by the Office of Foreign Assets Control of the U.S. Department of Treasury   (“OFAC”). The Company and BCGS have taken commercially reasonable steps to ensure that no   Customer in any account is listed on any published list of blocked persons maintained by OFAC.          Section 3.12 Litigation.  Except as set forth in Section 3.12 of the Seller Disclosure   Schedule, there are no Actions pending or, to the Knowledge of Seller Parties, threatened in   writing, against the Company or BCGS or relating to any Company Business or any Seller in its   capacity as a shareholder of the Company.  There are no orders outstanding to which the Company   or BCGS or any of their respective properties, rights or assets is subject.          Section 3.13 Intellectual Property.                 (a)   Except as set forth in Section 3.13(a) of the Seller Disclosure Schedule, each   of the Company and BCGS owns all right, title and interest in, or has enforceable rights or licenses   to use, free and clear of all Liens, the Intellectual Property, the Computer Software and the   Technology used in the Company Business as currently conducted.                 (b)   Section 3.13(b) of the Seller Disclosure Schedule sets forth a complete and   correct listing of (i) all Computer Software (other than “off-the-shelf” or software that is available  generally through retail distribution networks or is subject to “shrink-wrap” or “click wrap” license  agreements or retail software), (ii) all material common law Trademarks that are used in the  conduct of the Company Business, and (iii) all Registered Intellectual Property used in the conduct  of the Company Business.  Except as set forth in Section 3.13(b) of the Seller Disclosure Schedule,   all Registered Intellectual Property is not canceled, expired or abandoned, all maintenance or other   fees have been paid and all filings required to maintain such rights have been made.                (c)   Section 3.13(c) of the Seller Disclosure Schedule sets forth a complete and   correct listing of all material Intellectual Property and Technology used in the conduct of the   Company Business that are owned by a third party and licensed to Company or BCGS (excluding   any software that is available generally through retail distribution networks or is subject to “shrink- wrap” or “click wrap” license agreements) (“Licensed Intellectual Property and Technology”).    Correct and complete copies of all licenses or other agreements relating to the Licensed Intellectual   Property and Technology have heretofore been delivered by Sellers to Buyer.  Except as set forth   on Section 3.13(c) of the Seller Disclosure Schedule, the Company and BCGS are in material   compliance with the terms of the license or purchase agreements governing any Licensed   Intellectual Property and Technology, including any obligation to pay any license fees or royalties   for use of the Licensed Intellectual Property and Technology.  Except as set forth on Section   3.13(c) of the Seller Disclosure Schedule, none of the rights in the Licensed Intellectual Property   and Technology granted to the Company or BCGS will become abandoned and no third-party   licensor will be entitled to terminate or revoke any such right or increase fees or liabilities to the                                         -37-   40733748.21  





 






     Company or BCGS as a direct result of the transactions contemplated by this Agreement except   where such abandonment, termination, or revocation would not, individually or in the aggregate,   reasonably be expected to have a Company Material Adverse Effect. Except as set forth in Section   3.13(c) of the Seller Disclosure Schedules, the Company and BCGS are in compliance in all   material respects with the terms of the license or purchase agreements governing any Computer   Software owned by a third party and licensed to the Company or BCGS.  Section 3.13(c) of the   Seller Disclosure Schedule sets forth a complete and correct list of all Owned Intellectual Property,  Computer Software or Technology used in the conduct of the Company Business that is owned by  Company or BCGS that has been licensed to a third party, and correct and complete copies of all  licenses or other agreements relating to such Owned Intellectual Property, Computer Software or  Technology have heretofore been delivered by Sellers to Buyer.                (d)   Except as set forth in Section 3.13(d) of the Seller Disclosure Schedule,   neither the Company nor BCGS has received any written notice of any infringement or   misappropriation of the rights of any third party that has not been resolved with respect to any   Intellectual Property, Computer Software or Technology.  No use by the Company or BCGS of   any Intellectual Property, Computer Software or Technology infringes or misappropriates any   Intellectual Property or technology right of any third party in any material respect related to the   conduct of the Company Business.  To the Knowledge of Seller Parties, no Person is infringing or   misappropriating any material Owned Intellectual Property or Computer Software.                (e)   All Persons who have materially contributed to the creation, invention or   development of the Owned Intellectual Property and Computer Software (other than “off-the-  shelf” or software that is available generally through retail distribution networks or is subject to   “shrink-wrap” or “click wrap” license agreements or retail software) have assigned to Company   or BCGS all of their rights therein to the extent such rights have not been vested in Company or   BCGS by operation of applicable Law.                (f)   The Company and BCGS have used commercially reasonable efforts to   maintain the confidentiality and secrecy of the Trade Secrets and material proprietary information   relating to the Company Business. Except as set forth in Section 3.13(f) of the Seller Disclosure   Schedule, all employees, consultants and contractors who have been given access to such Trade   Secrets or material proprietary information for the performance of their duties for the Company or   BCGS have signed agreements (or are subject to an enforceable duty of confidentiality) that   adequately protect the interests of the Company and BCGS in such Trade Secrets or other material   proprietary information used in the Company Business.                (g)   The Technology owned by the Company or BCGS (i) has been reasonably   maintained, (ii) has been operated in material compliance with all applicable manufacturer   specifications, and (iii) is in good working condition to perform all material information   technology operations necessary for the conduct of the Company Business.  The Company has  taken or has caused to be taken commercially reasonable steps to provide for the backup and  recovery of the data critical to the conduct of the Company Business as currently conducted.  Since   December 31, 2015, neither the Company nor BCGS has experienced an unplanned interruption   of operation of the Technology or Computer Software that had a material impact on the Company   Business or any Plan.  Except as set forth in Section 3.13(g) of the Seller Disclosure Schedule, the   Computer Software (other than “off-the-shelf” or software that is available generally through retail                                         -38-   40733748.21  





 






     distribution networks or is subject to “shrink-wrap” or “click wrap” license agreements or retail   software) is not, in whole or in part, subject to the provisions of any open source license agreement.           Section 3.14 Producers.                   (a)   Section 3.14(a) of the Seller Disclosure Schedule sets forth a true and   complete list of the brokers, broker-dealers, producers, third party administrators or intermediaries   or other Persons who are regularly engaged to market or sell the services offered by the Company   Business, other than employees of Company or BCGS (each Person who undertakes such   activities, a “Producer”), and their compensation, including commissions, for the twelve-month   period ending September 30, 2018.  Except as disclosed in Section 3.14(a) of the Seller Disclosure   Schedule, (i) neither the Company nor BCGS have any compensation plans or programs for the   payment of compensation to Producers other than commissions and volume-based bonus   arrangements, and (ii) since December 31, 2017, no Producer has provided written notice to the   Company or BCGS of his or her intention to cease association with the Company.                (b)   Except as set forth in Section 3.14(b) of the Seller Disclosure Schedule, all   times since January 1, 2013, (i) each Producer at the time such Producer marketed, wrote, sold,   produced, administered or managed any portion of the Company Business, was duly licensed and   appointed (if necessary for the type of business marketed, written, sold, produced, administered or   managed by such Producer) as required by applicable Law; (ii) all compensation (including any   commission, commission expense, allowance or other fees payable or remittable) paid to each such   Producer was paid in accordance with applicable Law; (iii) no such Producer has violated (or with   or without notice or lapse of time or both would have violated) any term or provision of any agency   or other contract with the Company or BCS or policy thereof or any applicable Law or   Governmental Order applicable to any aspect (including, but not limited to, the marketing, writing,   sale, production, administration or management) of the Company Business; and (iv) no such   Producer has been enjoined, indicted, convicted or made the subject of any consent decree or   judgment on account of any violation of applicable Law in connection with such Producer’s   actions in his, her or its capacity as Producer for the Company or BCGS or is the subject of any   enforcement or disciplinary proceeding alleging any such violation.  Neither the Company nor   BCGS has made any loan to any Producer.                (c)   Section 3.14(c) of the Seller Disclosure Schedule sets forth a true and   correct list of the top twenty-five (25) Producers by commissions paid by the Company and BCGS   for the twelve-month period ending December 31, 2017 (each, a “Significant Producer”).  Sellers   have made available true, accurate and complete copies of (i) any agreements in force on the date   hereof between the Company or BCGS, on one hand, and any Significant Producer, on the other   hand, and (ii) any selling agreement between the Company or BCGS, on one hand, and any   independent broker-dealer or registered investment advisor, on the other hand (items (i) and (ii),   collectively, “Significant Producer Agreements”).              Section 3.15 Broker-Dealer and Investment Adviser.                (a)   BCGS is duly registered as a broker-dealer with the SEC and the MSRB, a  member of the Securities Investor Protection Corporation, admitted to membership in FINRA, and  duly registered, licensed or qualified as a broker-dealer in each jurisdiction where the conduct of                                         -39-   40733748.21  





 






     the Company Business requires such registration, licensing or qualification.  BCGS is in   compliance in all material respects with the state securities laws governing the operations of   broker-dealers in each state in which it operates and applicable FINRA and MSRB requirements.    BCGS is duly registered as an investment adviser under the Investment Advisers Act.  BCGS is   duly registered, licensed or qualified as an investment adviser in each state or any other jurisdiction   where the conduct of the Company Business requires such registration, licensing or qualification,   and BCGS is in good standing under the rules and regulations thereof.  BCGS is in compliance in   all material respects with federal and state securities Laws.                (b)   Section 3.15(b) of the Seller Disclosure Schedules contains a true, complete   and correct list of all Registered Persons, along with the following information with respect to each   Registered Person: (i) the Registered Person’s employment status with the Company or BCGS, (ii)   the date of the Registered Person’s Individual Registered Representative Agreement, (iii) the   jurisdiction(s) in which the Registered Person is registered as a “registered representative;” and   (iv) the jurisdiction(s) in which the Registered Person is registered as an investment adviser   representative.  Each of the Registered Persons is, and has been since such Registered Person   became associated with BCGS, duly registered as a “registered representative” with FINRA and   in all applicable states, duly licensed or registered as an investment adviser representative in all   applicable states, and is in material compliance with the applicable Laws having jurisdiction over  each such Registered Person, and such registrations are and have been in full force and effect.  The  Company has delivered or made available to Buyer true, correct and complete copies of each  Individual Registered Representative Agreement, and each Individual Registered Representative  Agreement is in full force and effect and is valid, binding and enforceable upon the Company,  BCGS and the Registered Person that is a party thereto and will continue to be following Closing,  and none of the Company, BCGS nor the Registered Person that is a party thereto is in material  default under, and no event has occurred which, with the passage of time or giving of notice or  both, would result in the Company, BCGS or the Registered Person that is a party thereto being in  material default under, any of the terms of each Individual Registered Representative Agreement.                (c)   Except as set forth in Section 3.15(c) of the Seller Disclosure Schedule,   none of the Company, BCGS, or any of their respective officers, managers, directors, Employees,   or, solely with respect to services relating to the Company Business, independent contractors are   or have been (i) the subject of any investigations or disciplinary proceedings or orders of the SEC,   FINRA or any other Governmental Authority arising under applicable Law and no such   disciplinary proceeding or order is pending or, to the Knowledge of Seller Parties, threatened, nor   is any basis known to the Sellers for any such action by any Governmental Authority;   (ii) permanently enjoined by the order, judgment or decree of any court or other Governmental   Authority from engaging in or continuing any conduct or practice in connection with any activity;   (iii) convicted of any crime or subject to any disqualification which would be the basis for any   denial, suspension, revocation or limitation of any necessary registration (including, with respect   to the Registered Person’s status as a “registered representative” or investment adviser   representative), or for any limitation on its activities, in connection with the Company Business;   and (iv) subject to or involved in any orders, disqualifications, penalties or special restrictions   relating to or affecting its services related to the Company Business.                (d)   Neither BCGS nor any of the Persons associated with BCGS, as enumerated   under Section 506 of Regulation D under the Securities Act, are subject to any of the disqualifying                                         -40-   40733748.21  





 






     events listed in Section 506(d) of Regulation D under the Securities Act, and, to the Knowledge   of Seller Parties, there is no inquiry, investigation, proceeding or action pending against any such   Person that would reasonably be expected to result in any such disqualifying event.          Section 3.16 Recordkeeping Services.  With respect to any aspect of the Company   Business involving Recordkeeping Services provided to or with respect to employee benefit plans   by the Company and BCGS:                (a)   All such Recordkeeping Services are in material compliance with   applicable Law and the terms of the applicable Material Contracts and all systems and procedures   used in the delivery of such services are designed to comply with applicable Law and the terms of  the applicable Material Contracts.               (b)   All such products and services relate solely to retirement plans that are  qualified under Section 401(a), 401(k), 403(b) or 457 of the Code, funeral trusts, nonqualified   deferred compensation plans, and related arrangements.                (c)   All fees, service charges or other compensation, including the retention of   float and disclosures required under Sections 404(a)(5) and 408(b)(2) of ERISA, relating to the   Company Business have been adequately and timely disclosed to Plan Sponsors and are imposed,   assessed, levied or charged only pursuant to a written agreement between the Company and the   Plan Sponsor or other responsible Person.                (d)   The systems and procedures utilized by the Company and BCGS in   administering the Company Business are reasonably designed to prevent nonexempt prohibited   transactions within the meaning of Section 4975 of the Code or Section 406 of ERISA or a failure   to comply with Section 409A of the Code.                (e)   Except as set forth in Section 3.16(e) of the Seller Disclosure Schedule,   neither the Company nor BCGS agrees under the terms of any Contracts related to the Company   Business to the status of, or responsibility as, a “fiduciary” (as such term is defined under Section   3(21)(A) of ERISA or any parallel provision of the Code or applicable state Laws) with respect to   any Plan.          Section 3.17 Bank Accounts; Affiliate Transactions.                  (a)   Sellers have previously made available to Buyer a true, accurate and   complete list of the bank names, locations and account numbers of all bank and safe deposit box   accounts of the Company or BCGS or used in connection with the Company Business, including   any custodial accounts for securities owned by the Company, BCGS or used in connection with   the Company Business, and the names of all persons authorized to draw thereon or to have access   thereto.                (b)   Except as set forth in Section 3.17(b) of the Seller Disclosure Schedule, (i)   no Seller Party, trustee of a Seller, officer, director or employee of the Company or BCGS, nor   any Related Person to any of the foregoing, nor any entity in which any such Person owns any   equity interest, is a party to any Contract, commitment or transaction with the Company or BCGS   or has any material interest in any property used by the Company or BCGS; and (ii) all transactions                                         -41-   40733748.21  





 






     between either the Company or BCGS on the one hand and any Related Person on the other hand   are conducted at fair market values and on commercially reasonable terms.           Section 3.18 Absence of Change.  Except as set forth in Section 3.18 of the Seller   Disclosure Schedule, since January 1, 2018, (i) the Company and BCGS have conducted the   Company Business in the Ordinary Course of Business, and (ii) there has not been any fact,   circumstance, condition, event or change having, or that would reasonably be expected to have,   individually or in the aggregate, a Company Material Adverse Effect.  Without limiting the   generality of the foregoing, since September 30, 2018, neither the Company nor BCGS has taken  any action or failed to take any action that would have resulted in a breach of Section 5.1, had such   section been in effect since September 30, 2018.          Section 3.19 Insurance.  Sellers have made available to Buyer a true and complete list of   all insurance policies covering the assets, business, equipment, properties, operations, Employees,   consultants, directors, officers and managers of the Company, BCGS and the Company Business,   together with a description of the coverage and the annual premium for the immediately prior year.   There is no claim by the Company or BCGS currently pending under any of such policies as to  which coverage has been questioned, denied or disputed by the insurers of such policies.  Each  such insurance policy is in full force and effect, all premiums payable under all such policies have  been timely paid, and the Company and BCGS are otherwise in material compliance with the terms  of such policies.  To the Knowledge of Seller Parties, since the time any such policies were last  issued or renewed, there has not been any threatened termination of, material premium increase  with respect to, or alteration of coverage under, any such policies.          Section 3.20 Privacy and Data Security.  (i) The Company and BCGS have in place (A)   administrative, technical and physical safeguards designed to protect against the destruction, loss,   or alteration of Personal Information, (B) appropriate security measures designed to protect   Personal Information, and (C) privacy policies and procedures, all of which safeguards, measures   and policies and procedures described in (A) – (C) above meet or exceed the requirements of all   applicable Laws; (ii) the Company and BCGS have complied with all applicable Laws pertaining   to privacy and personal information security in all material respects and with all applicable   contractual privacy obligations and their respective internal privacy policies and guidelines   relating to the collection, storage, use and transfer of Personal Information; (iii) to the Knowledge   of the Seller Parties, the Company and BCGS are not, and during the preceding three (3) years,   have not been, under investigation or audit, by any private party or Governmental Authority,   arising out of an actual or alleged privacy or information security incident nor has any private party   or Governmental Authority alleged any breach of contract or non-compliance with Laws related   to a privacy or information security matter; and (iv) since December 31, 2015, there has been (x)   to the Knowledge of Seller Parties, no unauthorized access, use, destruction, modification,   disclosure or transfer of any Personal Information in the possession, custody or Control of the   Company or BCGS, or a contractor or agent acting on behalf of the Company or BCGS, and (y)   no claim in writing from any affected individual nor any request or inspection from any   Governmental Authority that may give rise or has given rise to any liability under applicable Law   in relation to data protection, data security or privacy.          Section 3.21 Environmental Matters.                                           -42-   40733748.21  





 






               (a)   The Company and BCGS are in compliance with all applicable  Environmental Laws, except for such noncompliance that has not had, and would not individually  or in the aggregate reasonably be expected to have, a Company Material Adverse Effect.               (b)   Neither the Company nor BCGS has received written notice of any Actions  during the last five (5) years alleging any violation of, or liability under, any Environmental Law,  except for such Actions that have not had, and would not individually or in the aggregate  reasonably be expected to have, a Company Material Adverse Effect.         Section 3.22 Brokers.  No broker, investment banker, financial advisor or other Person is  entitled to any broker’s, finder’s, financial advisor’s or other similar fee or commission in  connection with the transactions contemplated by this Agreement based upon arrangements made  by or on behalf of any Seller Party.                                    ARTICLE IV                                                          REPRESENTATIONS AND WARRANTIES OF BUYER         Buyer represents and warrants to Sellers as follows:         Section 4.1 Incorporation and Authority of Buyer.  Buyer is a corporation duly  incorporated, validly existing and in good standing under the Laws of the State of Delaware.  Buyer  has all requisite corporate power and authority to enter into, consummate the transactions  contemplated by and carry out its obligations under this Agreement.  The execution and delivery  by Buyer of this Agreement and the consummation by Buyer of the transactions contemplated by  hereby have been duly authorized by all requisite corporate action on the part of Buyer. This  Agreement has been duly and validly executed and delivered by Buyer and assuming due  authorization, execution and delivery by the other parties hereto or thereto, this Agreement  constitutes, the legal, valid and binding obligation of Buyer, enforceable against it in accordance  with its terms, subject to the effects of bankruptcy, fraudulent conveyance, reorganization,  moratorium and other similar Laws relating to or affecting creditors’ rights generally and general  equitable principles (whether considered in a proceeding in equity or at law).           Section 4.2 No Conflict.  Provided that all consents, approvals, authorizations and other  actions described in Section 4.3 have been obtained or taken, the execution and delivery by Buyer  of, and the consummation by Buyer and each applicable Affiliate of Buyer of the transactions  contemplated by, this Agreement do not and will not (a) violate or conflict with the organizational  documents of Buyer or the applicable Affiliate of Buyer, (b) subject to the receipt of the consents,  approvals and authorizations described in Section 4.3, conflict with or violate in any material  respect any Law or other Governmental Order applicable to Buyer or the applicable Affiliate of  Buyer by which any of them or any of their respective properties or assets is bound or subject or  (c) result in any material breach of, or constitute a material default (or event which, with the giving  of notice or lapse of time, or both, would constitute a default) under, or give to any Person any  rights of termination, acceleration or cancellation of, or result in the creation of any Lien (other  than Permitted Liens) on any of the assets or properties of Buyer or any other applicable Affiliate  of Buyer pursuant to, any Contract to which Buyer or such other Affiliate of Buyer is a party or  by which any of them or any of their respective properties or assets is bound or subject.                                        -43-  40733748.21  





 






         Section 4.3 Consents and Approvals.  Except for the items set forth on Section 4.3 of  the Buyer Disclosure Schedule, the execution and delivery by Buyer of this Agreement do not, and  the consummation by Buyer or the applicable Affiliate of Buyer of the transactions contemplated  by this Agreements will not, require any Governmental Approval to be obtained or made by Buyer  or the applicable Affiliate of Buyer), except for any Governmental Approvals the failure of which  to be obtained or made would not, individually or in the aggregate, reasonably be expected to have  a Buyer Material Adverse Effect.         Section 4.4 Securities Law Matters.  The Company Shares are being acquired by Buyer  for its own account and without a view to the public distribution or sale of the Company Shares or  any interest therein.  Buyer understands and agrees that it may not sell, transfer, assign, pledge or  otherwise dispose of any of the Company Shares other than pursuant to a registered offering in  compliance with, or in a transaction exempt from, the registration requirements of the Securities  Act and applicable state and foreign securities Laws.         Section 4.5 Independent Investigation.  Buyer has conducted its own independent  investigation, review and analysis of the Company and BCGS, and acknowledges that it has been  provided adequate access to the personnel, properties, assets, premises, books and records, and  other documents and data of the Company and BCGS for such purpose. Buyer acknowledges and  agrees that: (a) in making its decision to enter into this Agreement and to consummate the  transactions contemplated hereby, Buyer has relied solely upon its own investigation and the  express representations and warranties of Sellers set forth in Article III of this Agreement  (including related portions of the Seller Disclosure Schedules) and the Transaction Documents;  (b) neither Sellers, the Company, BCGS nor any other Person has made any representation or  warranty as to Sellers, the Company, BCGS, the Company Business or this Agreement, except as  expressly set forth in Article III of this Agreement (including the related portions of the Seller  Disclosure Schedules) and the Transaction Documents, and (c) actual future results of the  Company may differ from current expectations.         Section 4.6 Non-Reliance.  Buyer is not relying and has not relied on any  representations or warranties whatsoever regarding the subject matter of this Agreement, express  or implied, except for the representations and warranties of Sellers contained in this Agreement,  the Seller Disclosure Schedules and the Transaction Documents.         Section 4.7 Brokers.  No broker, investment banker, financial advisor or other Person is  entitled to any broker’s, finder’s, financial advisor’s or other similar fee or commission in  connection with the transactions contemplated by this Agreement based upon arrangements made  by or on behalf of Buyer or any of its Affiliates.                                    ARTICLE V                                                                           COVENANTS          Section 5.1 Conduct of Business.  During the period from the date of this Agreement  until the Closing, except (a) as expressly contemplated by this Agreement, (b) for the matters set  forth in Section 5.1 of the Seller Disclosure Schedule, (c) as required by applicable Law or (d) as  Buyer otherwise consents in advance in its discretion, the Sellers shall, and shall cause Company                                        -44-  40733748.21  





 






     and BCGS to, (x) conduct the Company Business only in the Ordinary Course of Business, (y) use   commercially reasonable efforts to preserve intact the business organizations and goodwill of the   Company Business and maintain material relationships with Customers, Funds, Employees,   suppliers, service providers and other third parties having business dealings with the Company   Business and (z) not do any of the following:                (a)   declare, set aside or pay any non-cash dividends, or make any other non- cash distributions, in respect of the Company Shares or BCGS Shares;               (b)   repurchase, redeem, repay or otherwise acquire any outstanding Company  Shares or BCGS Shares;               (c)   transfer, issue, sell or dispose of any Company Shares or BCGS Shares, or  grant options, warrants, calls or other rights to purchase or otherwise encumber or acquire any  capital stock or other interest in the Company or BCGS;               (d)   effect any recapitalization, reclassification, stock split or similar change in  the capitalization of the Company or BCGS;               (e)   amend the Organizational Documents of the Company, BCGS or either  Trust, adopt or enter into any plan of liquidation, dissolution, merger, reorganization or similar  transaction of the Company or BCGS, or allow the Company or BCGS to acquire any other Person  or substantially all of the assets of any other Person or enter into a new line of business;               (f)   make any change in the accounting, sales, marketing or administration  policies, practices or principles of the Company or BCGS in effect on the date hereof (other than  any change required by applicable Law or GAAP);               (g)   (x) purchase, sell, lease, exchange, transfer, encumber or otherwise dispose  of or allow to lapse or acquire any property or assets of the Company, BCGS or the Company  Business (including Permits and Intellectual Property rights) or (y) make any capital expenditure  with respect to the Company or BCGS;               (h)   incur any Indebtedness, or allow the Company or BCGS to (x) assume,  grant, guarantee or endorse, or otherwise as an accommodation become responsible for, the  obligations or Indebtedness of any Person, or (y) make any loans or advances or investments in  capital;               (i)   except in the Ordinary Course of Business, enter into, amend, terminate,  renew or extend any Material Contract;               (j)    (x) promise or grant any increase in the compensation or benefits of any  Employee, except as required by Law or by any Benefit Plan or contract in existence on the date  hereof, or (y) enter into, or amend in any respect, any employment contract (except in the Ordinary  Course of Business), agreement for personal services or Benefit Plan;                (k)   hire, terminate or accept the resignation of any key officer or Employee,  other than for cause;                                          -45-   40733748.21  





 






                 (l)   modify the contingent obligations of the Company or BCGS by way of   guaranty, endorsement, indemnity or waiver;                (m)   pay, settle or compromise any Action or threatened Action involving the   Company, BCGS, or the Company Business;                 (n)   acquire any real property or any direct or indirect interest in real property;                (o)   (u) make, amend, or revoke any election related to Taxes or take any Tax   position that is inconsistent with past practice or that would reasonably be expected to adversely   affect the Company or BCGS, (v) settle or compromise any Tax liability or surrender any right to   claim a Tax refund, offset, or other reduction in Tax liability, (w) enter into any closing agreement   related to Taxes, (x) consent to any extension or waiver of the limitations period applicable to any   Tax claim or assessment, (y) amend any Tax Returns or file any claims for Tax refunds, or   (z) make a request for a written ruling of a Governmental Authority relating to Taxes; or                (p)   enter into any legally binding commitment with respect to any of the   foregoing.    From the date hereof through the Closing Date, no Seller shall sell, transfer or otherwise convey   any Company Shares.          Section 5.2 Access to Information.                  (a)   From the date hereof until the Closing Date or earlier termination of this   Agreement, Sellers and the Company will, and will cause BCGS to, provide Buyer and its   Representatives with reasonable access during normal business hours to the operations of the   Company and BCGS and management personnel, and such books and records pertaining to the   Company, BCGS and the Company Business as Buyer may reasonably request in advance;   provided, however, that Buyer agrees that (i) such access will give due regard to minimizing   interference with the operations, activities and Employees, and (ii) such access and disclosure will  not be provided if it would jeopardize any attorney-client or other privilege.  Prior to the Closing,  Buyer and its Representatives will contact and communicate with the Employees, suppliers and  other business relations of the Company and BCGS in connection with the transactions  contemplated hereby only with the prior written consent of the Company; provided, however, that   the Company shall have the right to have a Representative present during any such contact in the   event that it consents to such contact. From the date hereof until the Closing Date or earlier   termination of this Agreement, subject to any applicable confidentiality requirement, Seller Parties   shall and shall cause Company and BCGS to provide full access to Buyer and its Representatives   of Seller Parties’ and BCGS’s communications with any Governmental Authority or Person with   respect to any Action relating to the Company or BCGS and shall provide access for Buyer and its   Representatives to directly communicate with such Governmental Authority or Person if   permitted.                (b)   From the date hereof until the Closing, the Company shall deliver to Buyer   reasonably promptly, and in any case within two (2) Business Days, following the preparation   thereof, all quarterly and annual financial statements for the Company and BCGS, in each case   together with the exhibits and schedules thereto.  Such financial statements shall (A) be based on                                         -46-   40733748.21  





 






     the Books and Records, (B) be prepared in accordance with Applicable Accounting Principles on   a basis consistent with the preparation of the Financial Statements, and (C) present fairly, in all   material respects, Company’s consolidated and/or BCGS’s (as applicable) financial condition as   of their respective dates and the results of Company’s consolidated and/or BCGS’s (as applicable)   operations for the periods then ended.             Section 5.3 Approvals and Consents.                (a)   Subject to the terms and conditions hereof, Seller Parties shall and shall   cause Company and BCGS to, use their respective reasonable best efforts (i) to take, or cause to   be taken, all actions, and to do, or cause to be done, all things necessary, proper or advisable to   consummate and make effective, as soon as practicable after the date hereof, the transactions   contemplated hereby and (ii) to obtain as promptly as practicable all necessary Permits,   Governmental Orders or other consents, approvals or authorizations of Governmental Authorities   or any third parties necessary in connection with the consummation of the transactions   contemplated hereby; provided that the Sellers shall be responsible for the costs associated with   obtaining any such approvals. In connection therewith, Seller Parties shall, and shall cause   Company and BCGS to make all legally required filings as promptly as practicable in order to   facilitate prompt consummation of the transactions contemplated hereby, shall provide and shall   cause to provide such information and communications to Governmental Authorities as such   Governmental Authorities may request, and shall take and shall cause Company and BCGS to take   all reasonable steps that are necessary, proper, or advisable to obtain such Governmental   Approvals or third party consents. The Sellers shall provide to Buyer copies of all applications or   other communications to Governmental Authorities in connection with this Agreement in advance   of the filing or submission thereof; provided, in no event will any party be required to disclose to   the other party any information to the extent prohibited by applicable Law.                (b)   Without limiting the generality of the foregoing: the Seller Parties shall  cause BCGS to prepare and file (i) with FINRA not more than ten (10) Business Days after the   date hereof a substantially complete and accurate continuing membership application on Form   CMA pursuant to NASD Rule 1017 with respect to BCGS (the “Continuing Membership   Application”) in connection with the transactions contemplated hereby, and thereafter, upon   FINRA’s request, promptly provide such additional information as may be requested by FINRA,   and (ii) with the Texas Department of Insurance not more than ten (10) Business Days after the   date hereof a Texas Form FIN-531 for approval or non-disapproval of the change of control of   BCGS (the “Texas Application”).  Seller Parties shall, and shall cause BCGS to, make available   to Buyer and its Representatives all material documents to be filed with FINRA or the Texas   Department of Insurance prior to submission, and provide Buyer with a reasonable opportunity to   review and comment on such documents prior to submission.  The Buyer shall cooperate with the   Seller Parties and BCGS in preparing the Continuing Membership Application and Texas   Application, including by promptly making available additional information relating to its   business, assets, properties or ownership as may be requested by FINRA or the Texas Department   of Insurance, and taking such other actions reasonably requested by FINRA or the Texas   Department of Insurance in connection with the Continuing Membership Application or Texas   Application, as applicable.  In the event FINRA approval of the Continuing Membership   Application has not been obtained prior to Closing, Buyer and the Sellers shall continue to use   their respective reasonable best efforts to obtain FINRA approval of the Continuing Membership                                         -47-   40733748.21  





 






   Application by providing to FINRA on a timely basis such information and documents, and taking  such other actions, as FINRA may request.         Section 5.4 Announcement.  The initial press release with respect to the transactions  contemplated by this Agreement shall be a release mutually acceptable to the Buyer and Sellers.   Thereafter, no party shall, and Sellers shall cause the Principals and Employees not to, make any  public announcement or notice of this Agreement or the transactions contemplated hereby;  provided, however, that notwithstanding the foregoing, Buyer may issue press releases required  by applicable Law or applicable stock exchange rules without the Sellers’ consent.  Prior to the  Closing, Seller Parties shall not, and shall cause BCGS, the Principals, Employees and their  respective Representatives to not, make any announcement or disclosure relating to this Agreement  or the transactions contemplated hereby to the Plan Sponsors or other Customers, Participants,  agents or Employees of, or other Persons with significant business relationships with, the  Company, BCGS or the Company Business without first obtaining the prior written approval of  Buyer, which approval will not be unreasonably withheld, conditioned or delayed.           Section 5.5 Confidentiality.                  (a)   Except as otherwise expressly required by Law, Sellers shall not, and shall  cause the Principals not to: (i) disclose any Confidential Information (as defined below) to any  Person whatsoever, other than to Buyer or its Affiliates or their respective Representatives, or (ii)  sell or use for its own direct or indirect benefit or the benefit of any other Person (other than Buyer,  its Affiliates or their respective Representatives) in any manner whatsoever, any Confidential  Information. For purposes of this Agreement, “Confidential Information” means the confidential  or proprietary business information of the Buyer, the Company, BCGS, or the Company Business,  whether or not marked as such, including any business plans, technology, plans, blueprints,  drawings, models, designs, templates, processes, formulae, computer programs, customer lists,  supplier lists, pricing data, financial data, Trade Secrets or other information identified or  otherwise treated as confidential or proprietary business information; provided, however, that  Confidential Information shall not include any information: (x) that is in the public domain through  no fault of disclosure by any Seller, any Related Person thereof, or their respective Representatives,  or (y) that is lawfully acquired by a Seller, any of its Related Person or their respective  Representatives from and after the Closing from sources which are not prohibited from disclosing  such information by a legal, contractual or fiduciary obligation. Each Seller acknowledges and  agrees that the Confidential Information is owned by the Company, BCGS, Buyer and its  Affiliates, is secret, is the subject of reasonable efforts by Buyer and its Affiliates, Company or  BCGS, as applicable, to keep it secret, and has value because of its secrecy. Additionally,  Confidential Information may be shared by any party only on a need-to-know basis with its  officers, directors, Employees, Affiliates, third party service providers, auditors, attorneys, or  consultants in connection with the dispute resolution process specified in this Agreement.   If a  Seller, its Related Person or their respective Representatives are compelled to disclose any  information by judicial or administrative process or by other requirements of applicable Law, such  Seller shall promptly notify Buyer in writing, shall disclose only that portion of such information  which they are advised by counsel in writing is legally required to be disclosed, and shall, if  requested, use reasonable best efforts to obtain an appropriate protective order or other reasonable  assurance that confidential treatment will be accorded such information.                                          -48-  40733748.21  





 






                 (b)   Each Seller acknowledges and agrees that the restrictions contained herein   are reasonable and necessary to protect Buyer’s legitimate business interest, constitute a material   inducement for Buyer to enter into this Agreement, and, if violated, would cause Buyer irreparable   harm for which monetary damages would not be an adequate remedy.  Accordingly, each Seller   agrees that if any portion of this Section 5.5 is breached, then Buyer may at its election in any court   of competent jurisdiction, and in addition to any other remedy available to it, obtain specific   performance of such provision or enjoin a Seller from engaging in the activities proscribed by this   Section 5.5, in each case without any requirement to post a bond for such purpose. Notwithstanding   anything set forth in this Agreement, Buyer is expressly permitted to disclose the existence of this   Section 5.5 or any obligation set forth in this Section 5.5 to any Person with whom a Seller   conducts business or proposes to conduct business in a manner that may violate this Section 5.5.          Section 5.6 D&O Liabilities.  From and after the Closing Date, Buyer shall not, and   shall cause the Company and BCGS not to, take any steps that would reasonably be expected to   affect adversely the rights of any individual who served as a director or officer of the Company or   BCGS at any time prior to the Effective Time (each, a “D&O Indemnified Person”) to be   indemnified, under applicable Law or the Organizational Documents of the Company or BCGS as   they existed prior to the Effective Time, with respect to matters arising out of or pertaining to   matters existing or occurring at or prior to the Effective Time and relating to the fact that the D&O   Indemnified Person was a director or officer of the Company or BCGS, whether asserted or   claimed prior to, at or after the Closing Date.            Section 5.7 Releases by Sellers.  If, but only if, the Closing occurs, then each Seller on   behalf of himself individually and, as applicable, as trustee on behalf of each Trust, hereby forever,   absolutely, unconditionally and irrevocably releases and discharges the Company, BCGS, Buyer,   and Buyer’s Affiliates from all obligations and liabilities of either the Company or BCGS to the   Seller, all agreements and understandings of either the Company or BCGS involving the Seller,   and all rights, claims and causes of action (whether at law or in equity and whether or not currently   known to exist) of the Seller against either the Company or BCGS that are a result of, involve or   otherwise exist by reason of any act, omission, fact, circumstance or other matter, cause or thing   whatsoever that arose, occurred or existed before the Closing, including without limitation any   indemnification obligations to the Seller, and  the right to advancement and reimbursement of   expenses, pursuant to the organizational documents of the Company or BCGS; provided, however,  that nothing in this Section waives, releases or restricts in any manner whatsoever a claim arising  out of or related to this Agreement, including without limitation any of a Seller’s rights to  indemnification hereunder or otherwise arising out of this Agreement.          Section 5.8 Non-Competition; Non-Solicitation.                (a)   Each Seller agrees that, from the Closing Date until the date that is sixty   (60) months thereafter (the “Restricted Period”), each such Seller shall refrain from, and shall   cause such Seller’s Affiliates to refrain from directly or indirectly engaging in, offering or   providing anywhere in the United States any Recordkeeping Services or Company Business of the   types provided by the Company or BCGS as of the Closing Date, or soliciting for engagement in   any such business, except in such Seller’s capacity, if any, as an employee of the Buyer or an   Affiliate following the Closing; provided that if such Seller is an individual continuously employed   by the Buyer, the Company or their respective Affiliates following the Closing, is in good standing                                         -49-   40733748.21  





 






     and is thereafter terminated without Cause during the sixty (60) month period following the   Closing Date, the “Restricted Period” for such individual for purposes of this Section 5.8(a) shall,   notwithstanding anything to the contrary in the preceding sentence, be the shorter of (i) the   Restricted Period as set forth above, or (ii) the period from the date of such termination until the   date that is twelve (12) months thereafter.                (b)   Each Seller agrees that, during the Restricted Period, such Seller shall not   sell or propose to sell to, or otherwise solicit, whether through an employee, a producer or   otherwise, any Recordkeeping Services or other services constituting Company Business to any   Plan Sponsor, except in connection with such Seller’s capacity, if any, as an employee of the Buyer  or an Affiliate following the Closing.                (c)   Each Seller and Buyer acknowledge that the agreements contained in this   Section 5.8 are an integral part of the transactions contemplated by this Agreement and that without   these agreements Buyer would not have entered into this Agreement.                 (d)   Each Seller acknowledges and agrees that the character, duration and   geographical scope of this Section 5.8 are reasonable in light of the circumstances as they exist on   the date hereof.  Notwithstanding the foregoing, if nonetheless any provision (or any part thereof)   contained in this Section 5.8 shall for any reason be held invalid, illegal or unenforceable in any   respect, such invalidity, illegality or unenforceability shall not affect any other provisions of this   Section 5.8, but this Section 5.8 shall be construed as if such invalid, illegal or unenforceable   provision (or part thereof) had never been contained herein.  It is the intention of the parties that if   any of the restrictions or covenants contained herein is held to cover a geographic area or to be for   a length of time that is not permitted by Law, or in any way construed to be too broad or to any   extent invalid, such provision (or part thereof) shall not be construed to be null, void and of no   effect, but to the extent such provision (or part thereof) would be valid, legal or enforceable under   Law, a court of competent jurisdiction shall construe and interpret or reform this Section 5.8 to   provide for a covenant having the maximum enforceable provisions as shall be valid, legal and   enforceable under Law.          Section 5.9 Exclusivity.  From the date of this Agreement until the Closing or until this   Agreement is terminated in accordance with Article XI, no Seller Party, nor any Principal or BCGS   or any of their respective Related Person or Representatives, shall directly or indirectly negotiate,   solicit, initiate, enter into, encourage, participate in, or respond to any inquiries, discussions, or   proposals from or with any other Person relating to an acquisition or possible acquisition of the   Company, BCGS, or any portion of the Company Business or Assets, whether by sale or lease of   Assets, joint venture, sale of outstanding equity interests, issuance of additional securities, merger,   consolidation, recapitalization or other similar transaction (each, an “Acquisition Proposal”), or   furnish or make available to any other Person any information or documents relating to the   Company, BCGS, any Assets or the Company Business in contemplation of such an acquisition   or possible acquisition.  The Seller Parties shall, and shall cause the Company, BCGS, the   Principals and their Related Persons and their respective Representatives to, immediately terminate   any such inquiries, discussions, proposals or Contracts that exist as of the date hereof, if any. The   Seller Parties shall promptly, and in any event within two (2) days after receipt, notify Buyer in   writing of the receipt by any of them of any Acquisition Proposal or request for information related                                         -50-   40733748.21  





 






     to an Acquisition Proposal, and shall disclose to Buyer the terms of any such Acquisition Proposal   or request for information, as the case may be.           Section 5.10 Indebtedness; Affiliate Transactions; Accounts Receivable.                  (a)   The Seller Parties shall, and shall cause Company and BCGS to, take such   actions as may be necessary to extinguish the Indebtedness set forth on Exhibit B prior to the   Closing Date.                (b)   The Company and BCGS shall take such actions as may be necessary to   terminate all Contracts set forth in Section 3.17(b) of the Seller Disclosure Schedule and cause all   outstanding balances thereunder to be paid concurrently with the Closing Date such that there is   no future liability thereunder of the Company or BCGS.                  (c)   The Seller Parties shall take such actions as may be necessary to close all   Company and BCGS corporate credit cards and payoff all Indebtedness thereunder and remove   the Company and BCGS from any guaranty obligations with respect thereto.                (d)   Between the date of this Agreement and the Closing Date, Sellers and the   Company shall use commercially reasonable efforts to bring Accounts Receivable balances   current.          Section 5.11 Further Assurances.  Each of the parties hereto (i) shall, and shall cause its   Affiliates to, execute such documents and other papers and perform such further acts as may be   reasonably required to carry out the provisions hereof and the transactions contemplated hereby,   including without limitation developing and implementing an appropriate transition plan, and (ii)   shall, and shall cause its Affiliates to, refrain from taking any actions that could reasonably be   expected to materially impair, delay or impede the Closing.            Section 5.12 Notification of Certain Matters.  Between the date of this Agreement and   the Closing Date, each party shall give prompt notice to the other parties at such time that such   party becomes aware of the occurrence, or nonoccurrence, of any event which, if existing,   occurring or known on the date hereof should have been so disclosed, or which is necessary to   correct any information in the Seller Disclosure Schedule or the Buyer Disclosure Schedule which  was or has been rendered inaccurate thereby, which notice will describe the relevant fact, matter,   circumstance, occurrence, non-occurrence or event in reasonable detail; provided, however, that   for purposes of determining the rights and obligations of the parties under this Agreement, any   such supplemental disclosure by any party shall not be deemed to have been disclosed as of the   date hereof, to constitute a part of, or an amendment or supplement to the Seller Disclosure   Schedule or the Buyer Disclosure Schedule (as applicable), or to cure any breach or inaccuracy of   a representation, warranty, covenant, condition or agreement as of the date hereof unless so agreed   to in writing by the other party.  Notwithstanding the previous sentence, if (i) the matter so   disclosed is in respect of an event occurring or a matter arising after the date hereof and would   result in Seller’s inability to satisfy the condition to Closing set forth in Section 7.2(a) (as expressly   acknowledged by Seller in the notice to Buyer of such matter and in the certificate required to be   delivered under Section 2.3(a)(vii)), and (ii) Buyer waives compliance with any failure to fulfill   such condition and elects to close, then the Seller Disclosure Schedule shall be deemed to have                                         -51-   40733748.21  





 






     been updated to include the matter so disclosed and Buyer shall not have any claim for indemnity   hereunder with respect to such breach.            Section 5.13 One-Day Notes.  Each Seller acknowledges none of the Buyer, its Affiliates   or their respective Representatives makes any representation, warranty or guaranty of any tax   treatment or purported tax treatment arising from or attributable to the issuance of the One-Day   Notes or the Purchase Price, and each Seller, on behalf of himself individually and, as applicable,   as trustee on behalf of each Trust, hereby forever, absolutely, unconditionally and irrevocably   disclaims all rights, claims and causes of action against the Company, BCGS, Buyer, any of its   Affiliates, or any of their respective Representatives related to the tax treatment of the Purchase   Price or One-Day Notes.          Section 5.14 Private Letter Ruling.  If (a) all conditions to Closing set forth in Article VII   have been satisfied except for the condition set forth in Section 7.2(g), and (b) the parties mutually   agree to consummate the transactions contemplated hereby despite the failure of Sellers to satisfy   the condition set forth in Section 7.2(g), then (x) an additional $3 million (the “Additional   Holdback”) will be held back from the Closing Payment in accordance with Section 2.4(b), and   (y) if an Acceptable PLR is delivered to Buyer following the Closing Date, Buyer will, within five  (5) Business Days of Buyer’s receipt thereof, pay to each Seller by certified bank checks or Wire  Transfer such Seller’s Pro Rata Share of such Additional Holdback. For the avoidance of doubt, if  Buyer holds back the Additional Holdback from the Closing Payment pursuant to this Section 5.14   and Sellers are unable to deliver an Acceptable PLR following the Closing Date, Buyer shall have   no obligation to pay to Sellers the Additional Holdback at any time.                                       ARTICLE VI                                                                         EMPLOYEE MATTERS          Section 6.1 Employee Matters.                  (a)   Continued Employees.  During the period commencing at the Closing and   ending on the date which is twelve (12) months from the Closing (or if earlier, the date of the   employee’s termination of employment with the Company), Buyer shall, and shall cause the   Company to, provide each Company Employee who remains employed immediately after the   Closing (“Continued Employee”) with: (i) base salary or hourly wages and paid vacation which   are no less than the base salary or hourly wages provided by the Company immediately prior to   the Closing; (ii) target bonus opportunities (excluding equity-based compensation), if any, which   are no less than the target bonus opportunities (excluding equity-based compensation) provided by   the Company immediately prior to the Closing; and (iii) retirement and welfare benefits that are   no less favorable in the aggregate than those provided by the Company immediately prior to the   Closing. The Buyer reserves the right to terminate any Continued Employees, provided that if any   Continued Employees are terminated within twelve (12) months of the Closing, such terminated   Continued Employees shall be offered severance benefits that are no less favorable than the   practice, plan or policy in effect for such Continued Employee immediately prior to the Closing.   Sellers shall cause each Continued Employee to provide to Buyer a completed Employment   Eligibility Verification USCIS Form I-9, verifying the identity and employment authorization of  the Continued Employee, prior to the Closing Date.                                         -52-   40733748.21  





 






                 (b)   Employees on Leave.  Notwithstanding anything in this Agreement to the   contrary, any Employee who is on long-term, short-term or other authorized leave as of the close  of business on the Closing Date will continue to be covered by the leave plan in which he is then  participating and will not be a Continued Employee unless and until he advises Company that he  wants to return to full-time employment with Company within the six months immediately  following the Closing.  In making that decision, Buyer will, and will cause Company to, comply   with applicable Law as to those employees of Company on leave or on layoff on the Closing Date,   including re-employment.                (c)   Company 401(k) Plan.  Effective no later than immediately before the   Closing Date and contingent upon the Closing, the Company shall take all actions necessary and   appropriate to terminate the Benefit Consultants Group 401(k) Plan (the “Company 401(k) Plan”)   in accordance with applicable Law and to amend the Company 401(k) Plan to remove pre-  requisites for eligible participants to receive and fully vest in all matching and non-elective   employer contributions on the Closing Date, which contributions shall be in an amount consistent   with past practice and as set forth on Section 6.3(c) of the Seller Disclosure Schedule.  No later   than the Closing Date, the Company will contribute to the Company 401(k) Plan all employer and   employee contributions with respect to the period before the Closing as set forth on Section 6.1(c)   of the Seller Disclosure Schedule.  The Company will be responsible for all liabilities with respect   to the Company 401(k) Plan whether arising before or after the Closing.  Buyer will cause the   Continued Employees who were participants in Company’s 401(k) plan in which the Continued   Employees participate on the Closing Date to be automatically enrolled in a 401(k) plan sponsored   by the Buyer or one of its Affiliates (the “Buyer 401(k) Plan”), which will occur as soon as   administratively practical. Following the Closing, Buyer also agrees to provide each Continued   Employee an opportunity to make a direct rollover to the Buyer 401(k) Plan of an eligible   distribution from the Company 401(k) Plan that includes promissory notes reflecting such   Continued Employee’s then outstanding participant loans under the Company 401(k) Plan.                (d)   Company Benefit Plans.                       (i)   Except as otherwise provided herein or set forth in Section 6.1(c)               and (e), if the Closing Date occurs in calendar year 2018, from and after the Closing               Date through December 31, 2018, Buyer shall cause the Company to continue to               cover the Continuing Employees under the Benefit Plans on substantially the same               terms and conditions as in effect immediately prior to Closing. Notwithstanding the               foregoing, except as otherwise provided in Section 6.1(c) and (e), Buyer shall cause               the Company to terminate the Benefit Plans as of December 31, 2018, and the               Continued Employees shall, effective as of January 1, 2019 (the “Eligibility Date”),               to the extent otherwise permitted by the terms of the applicable plans, be               immediately eligible to participate in the employee benefit plans, arrangements and               programs maintained by Buyer and its Affiliates in which similarly situated               employees of Buyer and its Affiliates are generally eligible to participate.                      (ii)  If the Closing Date occurs in calendar year 2019, except as               otherwise provided herein or set forth in Section 6.1(c) and (e), Seller shall cause               the Company to continue to cover the Continuing Employees under the Benefit               Plans through the Closing Date.  Notwithstanding the foregoing, except as                                         -53-   40733748.21  





 






                 otherwise provided in Section 6.1(c) and (e), upon written request of the Buyer,               Seller shall cause the Company to terminate the Benefit Plans as of the Closing               Date and the Continued Employees shall, effective as of the Closing Date (the               “Eligibility Date”), to the extent otherwise permitted by the terms of the applicable               plans, be immediately eligible to participate in the employee benefit plans,               arrangements and programs maintained by Buyer and its Affiliates in which               similarly situated employees of Buyer and its Affiliates are generally eligible to               participate.                      (iii) With respect to severance and vacation benefits and any employee               benefit plan maintained by Buyer or an Affiliate of Buyer for the benefit of any               Continued Employee, effective as of the Eligibility Date, Buyer shall, or shall cause               its Affiliate to, recognize all service with the Company of the Continued Employee,               as if such service were with Buyer, for vesting, eligibility and severance and               vacation accrual rate purposes (but not for any purposes under any defined benefit               plan or eligibility under any retiree life or medical plan), provided, however, such               service shall not be recognized to the extent that such recognition would result in a               duplication of benefits.                        (iv)  The Company shall cause the Phantom Stock Plan and Salary               Continuation Agreement to be terminated effective as of no later than immediately               prior to Closing.                (e)   Accrued Compensation.  Prior to, or as soon as reasonably practicable   following Closing, the Company will pay its employees or accrue on its financial statements all   accrued compensation through the Closing Date, including wages, business expense, and other   reimbursements and all severance payments for all of Company’s employees who are not   Continued Employees, and, to the extent required by Law, obligations for accrued but unpaid   vacation and other paid time off.                (f)   COBRA Coverage.  Sellers will reimburse the Company or Buyer for all   costs of any required continuation coverage pursuant to Code §4980B (“COBRA”) for the   Company employees who are not Continued Employees and their “qualified beneficiaries” (as   defined in Code §4980B(g)(1)) with respect to any “qualifying event” (as defined in Code   §4980B(f)(3)) that occurred before the Closing Date.  Buyers will provide, or cause the Company   to provide, COBRA coverage for the Continued Employees and their qualified beneficiaries with   respect to “qualifying events” occurring on or after the Closing Date.                (g)   Workers Compensation.  The Sellers will reimburse Company or Buyer for   all the cost of workers’ compensation claims, both medical and disability, for Company employees  that relate to loss events occurring before the Closing Date.  Buyer will be, or will cause Company  to be, responsible for all workers’ compensation claims for Continued Employees that relate to  loss events occurring on or after the Closing Date.                (h)   WARN Act.  Neither the Sellers, on the one hand, nor Buyer, on the other,   shall cause the Company or its Affiliates to take any actions that will cause liability for the other   or require Buyer or Sellers to give notice or otherwise comply with the Workers Adjustment and                                         -54-   40733748.21  





 






     Retraining Notification Act or any similar state or local law (the “WARN Act”).  The parties hereto   shall cooperate to effectuate this Section 6.1(h).                 (i)   Confidentiality.  From and after the date hereof, except as otherwise   provided herein, the parties hereto will use commercially reasonable efforts to cause all Employees   and Continuing Employees to execute and deliver an agreement pursuant to which such Employee   (a) acknowledges that the Confidential Information of the Company and its Affiliates is owned by   the Company or Buyer (as applicable), is secret, is the subject of reasonable efforts by the   Company and Buyer (as applicable) to keep it secret, and has value because of its secrecy, (b)   agrees to hold in trust and strictest confidence all such Confidential Information and to use all   reasonable measures to protect such Confidential Information from disclosure, and to make no use   of such Confidential Information, except in connection with his or her employment with the   Company or its Affiliates, and (c) agrees not to compete with the business of the Buyer or its   Affiliates (including the Company and BCGS) or solicit customers of the Buyer or its Affiliates   (including the Company and BCGS).                  (j)   No Third Party Beneficiaries.  Each provision of this Section 6.1 is included   for the sole benefit of Buyer and the Company.  Without limiting the foregoing, this Section 6.1:   (i) does not create or confer any express or implied third party beneficiary or other rights on any   individual or any legal representative of any individual (including any current or former employee,   any participant in any employee benefit plan, or any dependent or beneficiary of any of the   foregoing, any alternative payee or dependent or beneficiary of any of the foregoing and further   including collective bargaining agents or representatives); (ii) without limiting or being limited by   the foregoing clause (i), does not create or confer any rights to any of the foregoing individuals or   other persons described in clause (i) to either (A) continued employment with the Company or   employment with Buyer or any Affiliate of either of them (and thus does not constitute or create  an employment agreement) or (B) participation in any employee benefit plan, program, agreement  or arrangement of the Company or Buyer or any Affiliate of either of them; and (iii) will not be   construed either (A) to establish, amend, or modify any employee benefit plan or any other plan,   program, agreement or arrangement of Company or Buyer or any Affiliate of either of them or (B)   to alter or limit the ability of Buyer or the Company or any Affiliate of either of them to amend,   modify or terminate any employee benefit plan or any other plan, program, agreement or   arrangement of Buyer or the Company or any Affiliate of either of them.                                     ARTICLE VII                                                                      CONDITIONS PRECEDENT          Section 7.1 Conditions to Each Party’s Obligations.  The respective obligations of the   parties hereto to consummate the Closing shall be subject to the satisfaction or waiver at or prior   to the Closing Date of the following conditions:                (a)   No Injunctions or Restraints; Illegality. (i) There shall not be in effect any   Governmental Order, injunction (whether temporary, preliminary or permanent) or other legal   restraint or prohibition issued by any Governmental Authority of competent jurisdiction that has   the effect of making the transactions contemplated by this Agreement illegal or otherwise   prohibiting consummation thereof, and (ii) there shall not be any Law or Governmental Order                                         -55-   40733748.21  





 






     enacted, entered, enforced or deemed applicable to the transactions contemplated hereby which   makes the consummation of the transactions contemplated hereby illegal.                (b)   FINRA Approval.  Either (i) FINRA shall have delivered to BCGS its   written approval of the Continuing Membership Application without any material conditions,   restrictions or limitations, which approval shall be in full force and effect, or (ii) subject to Buyer’s   express written consent, BCGS shall not have received any written notice of objection to the   Closing, or the imposition of any interim restrictions under NASD Rule 1017(c)(1), from FINRA   within forty-five (45) days after FINRA has deemed the Continuing Membership Application   substantially complete                (c)   Texas Approval.  Either (i) the parties shall have received the approval from   the Texas Department of Insurance with respect to a change of control of BCGS, or (ii) the Texas   Department of Insurance shall not have provided to BCGS or the Company any written notice of   objection to the Closing within sixty (60) days after the Texas Department of Insurance’s   confirmation of receipt of the completed Texas Application.          Section 7.2 Conditions to Obligations of Buyer.  The obligations of Buyer to   consummate the Closing shall also be subject to the satisfaction or waiver at or prior to the Closing  Date of the following conditions:                (a)   Representations and Warranties.  (i) The Seller Fundamental   Representations shall be true and correct on and as of the date of this Agreement and on and as of   the Closing Date in all respects, and (ii) the representations and warranties of the Seller Parties   contained in this Agreement (other than the Seller Fundamental Representations), disregarding all   qualifications and exceptions contained therein relating to materiality or Company Material   Adverse Effect, shall be true and correct on and as of the date of this Agreement and on and as of   the Closing Date with the same effect as if made on and as of the Closing Date (other than such   representations and warranties that are made as of a specified date, which representations and   warranties shall be true and correct as of such date), except where the failure of any such   representations and warranties to be so true and correct would not reasonably be expected to have,   individually or in the aggregate, a Company Material Adverse Effect.                (b)   Covenants and Agreements.  The Seller Parties shall have performed and   complied in all material respects with all covenants and agreements required by this Agreement to   be performed or complied with by it or them on or prior to the Closing Date.                (c)   Certificates of Trust.  The representations, warranties and certifications   contained in the Certificates of Trust shall be true and correct on and as of the date of this   Agreement and on and as of the Closing Date in all respects.                (d)   Closing Deliveries. Buyer shall have received each of the closing deliveries   specified in Section 2.3(a).                (e)   Material Consents. The third party consents listed on Schedule 7.2(e) shall   have been received by the parties.                                          -56-   40733748.21  





 






               (f)   No Company Material Adverse Effect; Resolution of Actions.  No fact,  circumstance, condition, event or change shall exist or have occurred or come to exist since the  date of this Agreement that has had or would reasonably be expected to have, individually or in  the aggregate, a Company Material Adverse Effect.  The Actions listed on Section 3.12 of the  Seller Disclosure Schedule as of the date hereof shall have been resolved to the reasonable  satisfaction of Buyer.               (g)   S Corporation Status.  The Sellers shall have delivered to Buyer an  Acceptable PLR.         Section 7.3 Conditions to Obligations of the Sellers.  The obligation of the Sellers to  consummate the Closing shall also be subject to the satisfaction or waiver at or prior to the Closing  Date of the following conditions:               (a)   Representations and Warranties.  (i) The Buyer Fundamental  Representations shall be true and correct  on and as of the date of this Agreement and on and as of  the Closing Date in all respects, and (ii) the representations and warranties of Buyer contained in  this Agreement (other than the Buyer Fundamental Representations), disregarding all  qualifications or exceptions contained therein relating to materiality or Buyer Material Adverse  Effect, shall be true and correct on and as of the date of this Agreement and on and as of the Closing  Date with the same effect as if made on and as of the Closing Date (other than such representations  and warranties that are made as of a specified date, which representations and warranties shall be  true and correct as of such date) except where the failure of any such representations and warranties  to be so true and correct would not reasonably expected to have, individually or in the aggregate,  a Buyer Material Adverse Effect.               (b)   Covenants and Agreements. Buyer shall have performed and complied in  all material respects with all covenants and agreements required by this Agreement to be performed  or complied with by it on or prior to the Closing Date.               (c)   Closing Deliveries.  The Sellers shall have received each of the closing  deliveries specified in Section 2.3(b).                                   ARTICLE VIII                                                                           TAX MATTERS         Section 8.1 Agreements Regarding Tax Matters.                 (a)   Liability for Taxes.  The Sellers shall be responsible for and shall indemnify  and hold harmless the Buyer Indemnitees from and against (i) all Taxes of the Company and BCGS  attributable to any Pre-Closing Tax Period except to the extent of any accrued current liability for  Taxes taken into account in the calculation of the Final Working Capital Adjustment, (ii) any  liability for Taxes as a result of a company being a member of a consolidated, combined, unitary  or similar group for state, local or Foreign law on or prior to the Closing, (iii) any liability for  Taxes resulting from a breach or inaccuracy of the representations contained in Section 3.10 (for  this purpose, the breach of any representation or warranty shall be determined without regard to  any limitation as to Knowledge or materiality), (iv) any liability for Taxes resulting from the                                        -57-  40733748.21  





 






     Company’s failure to make a valid election, or to maintain its status as an S corporation, (v) Sellers’   share of the Transfer Taxes under Section 8.1(g), (vi) any incremental Taxes imposed on the   Company and BCGS in a Post-Closing Tax Period attributable to the Company being determined   to be ineligible to make a Section 338(h)(10) Election, (vii) any liability for Taxes resulting from  a breach or inaccuracy of the covenants contained in Section 5.10, and (viii) any liability resulting   from the Company’s or BCGS’s failure to comply with the requirements of Section 409A of the   Code or resulting from any other matter identified in Section 3.9(b) of the Seller Disclosure   Schedule, including without limitation back Taxes, excise Taxes, Tax reporting, non-compliance   with Section 409A of the Code and the termination and settlement of such programs (including   any obligation to reimburse or “gross-up” any Person for interest or additional Tax under Section   409A(a)(1)(B) of the Code).                (b)   Returns for Pre-Closing Periods. Subject to the provisions of this Section   8.1, Sellers shall prepare or cause to be prepared all income Tax Returns for Company and BCGS   for all Pre-Closing Tax Periods which are filed after the Closing Date, including the Company’s   and BCGS’s federal and state income Tax Return for such Pre-Closing Tax Periods. All other Tax   Returns to be filed after Closing will be prepared by the Company. Such income Tax Returns shall   be prepared consistently with past practice of the Company and BCGS unless contrary to   applicable Law. The Sellers shall include on the income Tax Returns for the Pre-Closing Tax  Periods the income, deductions and credits of the Company and BCGS for all applicable Pre- Closing Tax Periods.  The Sellers will submit all such income Tax Returns to Buyer for its review  and comment at least thirty (30) days prior to the filing date and will discuss and consider in good  faith any questions or comments of Buyer concerning such returns. Upon the resolution of any  questions or comments to Buyer’s reasonable satisfaction, Buyer shall cause such income Tax  Returns to be filed unless otherwise required by applicable Law. The Sellers shall pay all fees and  expenses associated with preparing the income Tax Returns to be prepared by them under this  Section and all other Tax Returns for the Pre-Closing Tax Periods the original due dates of which  are on or prior to the Closing Date.                 (c)   Returns for Straddle Periods. In the case of any Straddle Period, the portion   of any such Taxes that are allocable to the Pre-Closing Tax Period shall:  (i) in the case of income   Taxes be determined on the basis of an interim closing of the books, and (ii) in the case of Taxes   imposed on a periodic basis with respect to the assets of the Company or BCGS or otherwise   measured by the level of any item deemed to be the amount of such Taxes for the entire period (or   in the case of such Taxes determined on an arrears basis, the amount of such Taxes for the   immediately preceding period), the amount of such Tax for the entire period shall be multiplied by   a fraction the numerator of which is the number of calendar days in the period ending on the   Closing Date and the denominator of which is the number of calendar days in the entire period.    The portion of any such Taxes that is not allocable to the Pre-Closing Tax Period under this Section   8.1(c) shall be allocable to the Post-Closing Tax Period.                (d)   Tax Payments.  The Sellers shall pay an amount equal to all Taxes due as   shown on the Tax Returns for the Pre-Closing Tax Periods for the Company and BCGS to Buyer   not less than five (5) Business Days before the relevant due date.                (e)   Audits. In the event Buyer receives notice of a claim by a Governmental   Authority in respect of Taxes of either the Company or BCGS for any Pre-Closing Tax Period (a                                         -58-   40733748.21  





 






   “Pre-Closing Tax Claim”), then Buyer shall give written notice to the Sellers of such claim. The  Sellers shall have the right to defend any Pre-Closing Tax Claim for which the Sellers would have  an indemnification obligation hereunder so long as (i) the Sellers give written notice to Buyer  within fifteen (15) Business Days after Buyer has given written notice of the Pre-Closing Tax  Claim, and (ii) the Sellers conduct the defense of the Pre-Closing Tax Claim actively and  diligently. Buyer may retain separate co-counsel at its sole cost and expense and consult in the  defense of the Pre-Closing Tax Claim. Buyer shall also be permitted to receive copies of any  pleadings, correspondence with the Governmental Authority or court, and other documents filed  with the Governmental Authority or court as Buyer may reasonably request related to the Pre- Closing Tax Claim and to attend any and all meetings, hearings and proceedings concerning such  Pre-Closing Tax Claim. If the Sellers do not assume the defense of any Pre-Closing Tax Claim  (including if the Sellers do not deliver the notice required by clause (i) of this Section), Buyer may  continue to defend such Pre-Closing Tax Claim at Sellers’ cost. Buyer will not consent to a  settlement of, or the entry of any judgment arising from, any such claim without the prior written  consent of the Sellers (such consent not to be unreasonably withheld, conditioned or delayed). If  the Sellers conduct the defense of a Pre-Closing Tax Claim, the Sellers will keep Buyer reasonably  informed as to the status of such Pre-Closing Tax Claim, including all compromise or settlement  offers. The Sellers shall consult with Buyer prior to the settlement of any such Pre-Closing Tax  Claim and shall obtain the prior written consent of Buyer prior to the settlement of any such Pre- Closing Tax Claim (x) that would materially affect Buyer in any taxable period ending after the  Closing Date or (y) relating to the transactions contemplated hereby, which consent may be given  or withheld in Buyer’s sole discretion.                 (f)   Assistance.  After the Closing Date, Buyer and its Affiliates (including the  Company and BCGS), on the one hand, and Sellers, on the other hand, shall provide each other  with such assistance as may be reasonably requested in connection with the preparation of any Tax  Return, any audit or other examination by any Taxing Authority, or any judicial or administrative  proceeding relating to liability for Taxes of either the Company, BCGS, or any Employee Plan.  The party requesting such assistance pursuant to this Section 8.1(f) shall reimburse the other for  reasonable out-of-pocket expenses incurred in providing such assistance.                 (g)   Transfer Taxes.  Notwithstanding any provision of this Agreement to the  contrary, all Transfer Taxes shall be borne 50% by the Buyer and 50% by the Sellers.  The Buyer  shall file or cause to be filed to the extent permitted by Law, all Tax Returns as may be required  to comply with the provisions of such Laws relating to Transfer Taxes.  The Sellers shall cooperate  with the Buyer in connection with all such filings and shall file those Tax Returns that the Buyer  is not permitted to file.               (h)   Amended Tax Returns.  The Sellers shall not, and shall not cause or permit  the Company or BCGS to, file or cause to be filed any amended Tax Return or claims for refund  with respect to any Pre-Closing Tax Period without the prior written consent of the Buyer, which  consent shall not be unreasonably withheld, conditioned or delayed, nor shall Buyer file or cause  or permit to be filed any amended Tax Return or claims for refund for the Company or BCGS for  any Pre-Closing Tax Period, without the prior written consent of the Sellers, which consent shall  not be unreasonably withheld, conditioned or delayed.                                         -59-  40733748.21  





 






                 (i)   Refunds.  Any tax refund received by the Company or BCGS (or Buyer on   either of their behalf) for a Pre-Closing Tax Period shall be for the account of the Sellers unless   such refund was included in the Final Working Capital Adjustment. Buyer shall pay any such   refund to the Sellers within five (5) Business Days after receipt thereof, net of any tax cost to Buyer   attributable to the receipt of such refund (including interest).                  (j)   Post-Closing Access to Records; Cooperation.  Prior to the Closing, the   Sellers will transfer to the Company custody and control of all records and all other data and   information relating to Taxes of Company and BCGS pertaining to Pre-Closing Tax Periods and  the Straddle Period. After the Closing, the Buyer will cause the Company to afford to the Sellers  or to such Sellers’ Representatives reasonable access during normal business hours (on terms not  unreasonably disruptive to the business, operations or employees of the Company) to the records  and all other data and information relating to Taxes pertaining to Pre-Closing Tax Periods and the  Straddle Period and to the Company’s employees, to the extent such access is reasonably  necessary: (i) to prepare and complete any Tax Returns required to be made hereunder; (ii) to  prosecute or defend on behalf of the Company and BCGS any proceedings controlled by Sellers;  (iii) to comply with requests made by any Taxing Authority conducting an audit, investigation or  inquiry relating to the Company’s and BCGS’s activities; and (iv) for any other purpose. After the  Closing, (x) Buyer and Sellers agree to retain, or (in the case of Buyer) cause the Company to   retain, all books and records with respect to Tax matters pertinent to the Company or BCGS   relating to Pre-Closing Tax Periods and the Straddle Period until the expiration of the statute of   limitations (and, to the extent notified by Sellers, any extensions thereof) of the respective Tax   periods, and to abide by all record retention agreements entered into with any Governmental   Authority; and (y) Buyer agrees to give the Sellers reasonable written notice prior to transferring,   destroying or discarding any such books and records and, if the Sellers so requests, Buyer will   allow Sellers to take possession of such books and records.          Section 8.2 Section 338(h)(10) Election.                  (a)   At the election of Buyer, Buyer and the Sellers shall make a joint election   under Section 338(h)(10) of the Code and comparable provisions of state law with respect to the   purchase and sale of the Company Shares (the “Section 338(h)(10) Election”) and shall timely file   with the proper authorities executed copies of Internal Revenue Service Forms 8023 and 8883, and   any similar state forms, with respect to the Company. If Buyer notifies Seller Parties that Buyer   desires to make a Section 338(h)(10) Election, then Seller Parties and Buyer shall cooperate in   preparing and filing IRS Form 8023 and other documentation required to effect the election for   Federal and state Tax purposes.                (b)   In the event the Section 338(h)(10) Election is made, as a condition   precedent thereto, Buyer shall pay to Sellers, in cash, the amount of additional consideration (if   any) necessary for Sellers to be made whole such that the after-Tax net proceeds from the sale of   the Company’s stock with the Section 338(h)(10) Election received by the Sellers are equal to the   after-Tax net proceeds that Sellers would have received had the Section 338(h)(10) Election not   been made, taking into account all appropriate state, federal and local Tax implications (the “Tax   Adjustment”).  The amount of the Tax Adjustment shall be paid to Sellers at least ten (10) days   prior to the due date (without extensions) for Sellers to file their federal income tax returns for the   taxable year that includes the Closing Date.  Sellers shall provide Buyer with a schedule computing                                         -60-   40733748.21  





 






     the amount of the Tax Adjustment within twenty (20) days after the parties have agreed to the   allocation of the Purchase Price.                  (c)   Sellers and Buyer agree to allocate the Purchase Price in accordance with   this Section 8.2. If Buyer elects to make a Section 338(h)(10) Election, Sellers and Buyer agree to   allocate the “Aggregate Deemed Sale Price” (as defined in Section 1.338-4 of the Treasury   Regulations) among the assets of the Company in accordance with Section 1.338-6 of the Treasury   Regulations. Within a reasonable time after the Closing Date (not to exceed ninety (90) days),   Buyer shall prepare and deliver to Sellers  a notice setting forth Buyer’s good faith calculation of   the “Aggregate Deemed Sales Price” and the  allocation (“Buyer’s Allocation”) among the assets   owned by the Company immediately prior to Closing (the “Allocation Schedule”). If the Sellers   agree with the Buyer’s Allocation, or if the Sellers fail to timely deliver an objection notice in   accordance with this Section 8.2(c), the Buyer’s Allocation shall be final, conclusive and binding.   If Sellers notify the Buyer in writing within thirty (30) days following receipt of the Allocation   Schedule that Sellers object to one or more items reflected in the Allocation Schedule, Sellers and   Buyer shall negotiate in good faith to resolve such dispute; provided, however, that if Sellers and   Buyer are unable to resolve any dispute with respect to the Allocation Schedule within sixty (60)   days following the date on which Sellers received the Allocation Schedule, such dispute shall be   resolved by the Independent Accountant acting as an objective, neutral party in the same manner  contemplated by Section 2.5(d). The final determination with respect to the Allocation Schedule   shall be set forth in a written statement by the Independent Accountant delivered to Buyer and   Sellers and shall be final, conclusive and binding on Buyer and Sellers.   The fees and expenses of   the Independent Accountant shall be borne equally by Sellers and Buyer. Buyer and Sellers shall   cooperate with each other in connection with the matters contemplated by this Section 8.2(c),   including by furnishing such books and records as may be reasonably requested by the other party   or the Independent Accountant.  Buyer and Seller Parties shall file all Tax Returns (including   amended returns and claims for refund) and information reports in a manner consistent with the   Allocation Schedule. Any adjustments to the Purchase Price under this Agreement shall be   allocated in a manner consistent with the Allocation Schedule.          Section 8.3 Tax Sharing Agreements.  All Tax Sharing Agreements or similar   obligations (arising under contract or otherwise) and all powers of attorney that relate to Taxes   with respect to or involving the Company or BCGS will be terminated prior to the Closing and   after the Closing neither the Company nor BCGS shall be bound thereby or have any liabilities   thereunder.          Section 8.4 Tax Treatment of Indemnity Payments.  To the extent permitted by Law,   the parties agree to treat any indemnity payment made under this Article VIII or Article X as an   adjustment to the Purchase Price for all federal, state, local, or foreign tax purposes and the parties   agree to file their Tax Returns accordingly.                                     ARTICLE IX                                                 SURVIVAL OF REPRESENTATIONS AND WARRANTIES AND COVENANTS          Section 9.1 Survival of Representations and Warranties.  All representations and   warranties made by the Seller Parties or Buyer contained in this Agreement or any documentation                                         -61-   40733748.21  





 






     or certification delivered in connection with this Agreement shall survive the Closing and shall   terminate and expire at the close of business on the date that is thirty-six (36) months after the  Closing Date; provided, that the representations and warranties contained in (x) Section 3.1   (Organization and Corporate History), Section 3.2 (Capital Structure), Section 3.3 (Authority and   Enforceability), Section 3.10 (Taxes), and Section 3.22 (Brokers) (collectively, the “Seller   Fundamental Representations”) and (y) Section 4.1 (Incorporation and Authority of Buyer),   Section 4.4 (Securities Law Matters) and Section 4.7 (Brokers) (collectively, the “Buyer   Fundamental Representations”) shall survive indefinitely or until the latest date permitted by   applicable Law; provided, further, that the representations and warranties contained in Section   3.10 (Taxes) shall terminate thirty (30) days following the expiration of the applicable statute of   limitations.           Section 9.2 Survival of Covenants.  The covenants or other agreements made by the   Seller Parties or Buyer which by their terms contemplate full performance on or prior to the   Closing Date shall survive the Closing and expire on the date that is twelve (12) months after the   Closing Date.  The covenants or other agreements made by the Sellers or Buyer which by their   terms contemplate performance after the Closing Date shall survive the Closing for the period   contemplated by their respective terms.           Section 9.3 Survival Period.  The period of time a covenant, agreement, representation   or warranty survives the Closing pursuant to Sections 9.1 and 9.2 shall be the “Survival Period”   with respect to such covenant, agreement, representation or warranty. The parties acknowledge   that the time periods set forth in this Article IX for the assertion of claims under this Agreement   are the result of arms-length negotiation among the parties and that the parties intend for such time   periods to be enforced as agreed by the parties.                                      ARTICLE X                                                                           INDEMNIFICATION          Section 10.1 Obligation to Indemnify.                  (a)   Subject to the Survival Period and the limitations set forth in this Article X,   the Company (only if the Closing is not consummated) and Sellers, jointly and severally, will   indemnify and hold harmless each of Buyer, its Affiliates (including the Company on and after the   Effective Time), and their respective officers, directors, partners, managers, employees, agents,   advisers and Representatives and their respective successors and assigns (collectively, the “Buyer   Indemnitees”) from and against all Losses (without duplication of recovery for the same Loss) to   the extent arising from or related to:                       (i)   any breach of the representations and warranties of the Seller Parties               contained in this Agreement or the Seller Disclosure Schedule or certifications               delivered in connection with this Agreement (other than the representations and               warranties contained in Section 3.10 (Taxes) or constituting Seller Fundamental               Representations),                                            -62-   40733748.21  





 






                       (ii)  any breach of the representations and warranties of the Seller Parties               constituting Seller Fundamental Representations or contained in Section 3.10               (Taxes),                      (iii) any breach of the covenants or agreements of the Seller Parties               contained in this Agreement or any certificates or documents delivered in               connection with this Agreement,                      (iv)  any Action set forth or required to be set forth on Section 3.12 of the               Seller Disclosure Schedule and any additional Action resulting from or relating to               the issues or matters giving rise to such Actions set forth or required to be set forth               on Section 3.12 of the Seller Disclosure Schedule,                      (v)   any Final Adjustment Amount owed to Buyer in excess of the               Holdback Amount,                      (vi)  Sellers’ share of any Transfer Tax under Section 8.1(g),                       (vii) any transfer of Company Shares prior to the date hereof, including               the failure to notify or obtain approval of any Governmental Authority (including               without limitation the filing of a Continuing Membership Application) in               connection with such transfer, or                      (viii) without duplication, any indemnity obligation of the Sellers under               Section 8.1(a).    provided, however, that, except in the case of fraud, the Sellers shall not have any liability under   Section 10.1(a)(i) unless the aggregate of all Losses for which the Sellers would, but for this   proviso, be liable, exceeds on a cumulative basis an amount equal to $100,000 (the   “Indemnification Deductible”), and then only to the extent of any such excess.  In any event, except   in the case of fraud by the Sellers, the maximum amount for which the Sellers shall be liable under  Section 10.1(a)(i) shall not exceed $2,000,000 in the aggregate (the “Indemnification Cap”).                (b)   Subject to the Survival Period and the limitations set forth in this Article X,   Buyer agrees to indemnify and hold harmless the Sellers, and their Affiliates and respective   Representatives and each of their respective successors and assigns (collectively, the “Seller   Indemnitees”) from and against all Losses (without duplication of recovery for the same Loss) to   the extent arising from or related to:                       (i)   any breach of the representations and warranties of Buyer contained               in this Agreement or any documents or certifications delivered in connection with               this Agreement (other than any representations and warranties constituting Buyer               Fundamental Representations),                       (ii)  any breach of the representations and warranties of Buyer               constituting Buyer Fundamental Representations,                                           -63-   40733748.21  





 






                       (iii) any breach of any of the covenants and agreements of Buyer               contained in this Agreement or any certificates or documents delivered in               connection with this Agreement, or                      (iv)  any Final Adjustment Amount owed to Sellers,                      (v)   Buyer’s share of any Transfer Taxes under Section 8.1(g);     provided, however, that, except in the case of fraud, Buyer shall not have any liability under   Section 10.1(b)(i) unless the aggregate of all Losses for which Buyer would, but for this proviso,   be liable, exceeds on a cumulative basis an amount equal to the Indemnification Deductible, and   then only to the extent of any such excess.  In any event, except in the case of fraud by Buyer, the   maximum amount for which Buyer shall be liable in the aggregate under Section 10.1(b)(i) shall   not exceed the Indemnification Cap.                (c)   For purposes of determining whether any representation or warranty has   been breached and the amount of the Losses in respect of breach of any representation or warranty   under Article VIII or this Article X, each representation and warranty contained in this Agreement   (other than with respect to subclause (ii) of the first sentence of Section 3.18) shall be read without   regard to any Company Material Adverse Effect, Buyer Material Adverse Effect or other   materiality qualifications or references.            Section 10.2 Indemnification Procedures; Certain Limitations.                  (a)   In order for a Buyer Indemnitee or a Seller Indemnitee (the “Indemnified   Party”) to be entitled to any indemnification provided for under this Agreement in respect of,   arising out of or involving a claim or demand made by, or an action, proceeding or investigation   instituted by, any Person (whether or not a party to this Agreement) (an “Indemnity Claim”), such   Indemnified Party must notify the party obligated to indemnify such Indemnified Party (the   “Indemnifying Party”) in writing, and in reasonable detail, of the Indemnity Claim promptly, and   in any event within thirty (30) days after such Indemnified Party learns of the Indemnity Claim;  provided, however, that failure to give such notification shall not affect the indemnification   provided hereunder unless and to the extent the Indemnifying Party shall have been prejudiced as   a result of such failure (except that the Indemnifying Party shall not be liable for any expenses   incurred during the period in which the Indemnified Party failed to give such notice).  Such written   notice shall specify in detail the facts constituting the basis for, and the amount of, the claim   asserted.  Thereafter, the Indemnified Party shall promptly deliver to the Indemnifying Party copies   of all notices and documents (including court papers) thereafter received by the Indemnified Party   relating to the Indemnity Claim.                (b)   If an Indemnity Claim is made against an Indemnified Party by a party that   is not a Buyer Indemnitee or Seller Indemnitee (a “Third Party Claim”), subject to this Section   10.2(b), the Indemnifying Party shall have the right to assume the defense and control of Third   Party Claims.  In the event the Indemnifying Party exercises such right to assume the defense and   control of a Third Party Claim, the Indemnified Party shall have the right but not the obligation   reasonably to participate in (but not control) the defense of Third Party Claims with its own counsel   and at its own expense unless (i) the Indemnifying Party and Indemnified Party shall have mutually                                         -64-   40733748.21  





 






   agreed in writing to the retention of the same counsel, (ii) the named parties to any such Third  Party Claim (including any impleaded parties) include the Indemnifying Party and Indemnified  Party and representation of both parties by the same counsel would, in the opinion of counsel to  such Indemnified Party, be impermissible under the applicable code of professional responsibility  due to actual or potential differing interests between the Indemnifying Party and Indemnified  Party, including situations in which there are one or more legal defenses available to the  Indemnified Party that are different from, or additional to, those available to the Indemnifying  Party, or (iii) the Indemnifying Party fails to diligently pursue the Third Party Claim  it has  assumed, in which case the Indemnifying Party will bear such expense of the Indemnified Party.   Any election by an Indemnifying Party to assume the defense of a Third Party Claim must be  delivered by the Indemnifying Party to the Indemnified Party within thirty (30) Business Days  after receipt of the Indemnified Party’s notice under Section 10.2(a), and failure on the part of the  Indemnifying Party to send such notice within such thirty (30) Business Day period shall be  deemed an election not to assume the defense of such Third Party Claim.  If the Indemnifying  Party elects to assume the defense of a Third Party Claim, then the Indemnified Party shall, and  shall cause each of its Representatives and permitted assigns to, cooperate fully with the  Indemnifying Party in the defense of any such Third Party Claim, which cooperation shall include  designating a liaison counsel to whom the Indemnifying Party may direct notices and other  communications, using commercially reasonable efforts to make witnesses available, and  providing records and documents to the extent such witnesses, records and documents are relevant  to the Third Party Claim.  In the event that the Indemnifying Party does not assume the defense of  a Third Party Claim within the thirty (30) Business Day period specified in this Section 10.2(b),  the Indemnified Party may assume the defense and control of a Third Party Claim at the  Indemnifying Party’s expense and may consent to a settlement of, or the entry of any judgment  arising from, any Third Party Claim without the consent of the Indemnifying Party.  The  Indemnifying Party shall be authorized to consent to a settlement of, or the entry of any judgment  arising from, any Third Party Claim as to which the Indemnifying Party has assumed the defense  in accordance with the terms of this Section 10.2(b), without the consent of any Indemnified Party,  but only to the extent that such settlement or entry of judgment: (i) provides solely for the payment  of money that will be paid in full by the Indemnifying Party, and (ii) provides a complete release  of, or dismissal with prejudice of claims against, any Indemnified Party potentially affected by  such Third Party Claim from all matters that were asserted in connection with such claims.               (c)   The obligations to indemnify and hold harmless a party hereto in respect of  a breach of representation, warranty or covenant will terminate on the applicable Survival Period  termination date (as set forth in Section 9.1 or 9.2), unless, prior to such applicable termination  date, an Indemnified Party has brought a claim for indemnification pursuant to Article VIII or  Section 10.1 subject to the terms and conditions of this Article X by delivering a written notice  (stating in reasonable detail the amount and nature of, and factual and legal basis for, any such  claim for indemnification, and the provisions of this Agreement upon which such claim for  indemnification is made) to the Indemnifying Party. If an Indemnified Party has made a proper  claim for indemnification pursuant to Section 10.2 prior to such termination date, then such claim,  if then unresolved, will not be extinguished by the passage of the deadlines set forth in Section 9.1  or Section 9.2.               (d)   Notwithstanding anything contained in this Agreement to the contrary,  Losses of an Indemnified Party shall be determined without duplication of recovery for the same                                        -65-  40733748.21  





 






     Loss and shall be net of any insurance or amounts from other applicable sources of recovery   actually recovered by the Indemnified Party with respect to such Loss, net of any actual costs,   expenses or premiums incurred in connection with securing or obtaining such proceeds (such net   amount, “Recovery Amounts”).  Each applicable Indemnified Party shall use commercially   reasonable efforts to recover from insurance policies or other applicable sources of recovery the   maximum portion of any Losses of such Indemnified Party.  If the applicable Indemnified Party   shall have used commercially reasonable efforts to recover any amounts recoverable under   insurance policies or other applicable sources of recovery and shall not have recovered the   applicable Losses, the applicable Indemnifying Party shall be liable for the amount by which such  Losses exceeds the Recovery Amounts (subject to the limitations contained in this Article X).  If   the applicable Indemnified Party fails to use commercially reasonable efforts to recover any   amounts recoverable under insurance policies or other applicable sources of recovery, the   applicable Indemnifying Party shall not be required to indemnify the applicable Indemnified Party   for that portion of any Losses that could reasonably be expected to have been included in a   Recovery Amount had the applicable Indemnified Party used such commercially reasonable   efforts.  Any related unreimbursed cost of recovery shall be included in Losses.  In addition, any   indemnification obligation of an Indemnifying Party shall be subject to and calculated in   accordance with the provisions of Section 8.4.                (e)   The Indemnified Party shall use, and shall cause each of its Affiliates to use,   commercially reasonable efforts to mitigate any Losses upon and after becoming aware of any   facts, matters, failures or circumstances that would reasonably be expected to result in any Losses   that are indemnifiable hereunder.                (f)   In the event of indemnification payment pursuant to this Article X by or on   behalf of any Indemnifying Party to any Indemnified Party, such Indemnifying Party shall be   subrogated to the rights of the Indemnified Party as against any third party in respect of the Loss   to which the payment relates, provided, that until the Indemnified Party recovers full payment of   its Loss, any and all claims of the Indemnifying Party against any such third party on account of   said payment are hereby made expressly subordinated and subjected in right of payment to the   Indemnified Party’s rights against such third party.  Such Indemnified Party shall cooperate with   such Indemnifying Party in a reasonable manner, and at the cost of such Indemnifying Party, in   presenting any subrogated right, defense or claim.                (g)   In the event a claim or any action for indemnification under this Article X   has been finally determined, the amount of such final determination shall be paid (i) if the   Indemnified Party is a Buyer Indemnitee prior to the Closing Date, by the Seller Parties to the   Indemnified Party on demand by Wire Transfer, (ii) if the Indemnified Party is a Buyer Indemnitee   on or after the Closing Date, subject to Section 2.6(c), first by payment of such amounts from the   Holdback Amount to the Indemnified Party, and if the Holdback Amount is insufficient to   compensate Buyer Indemnitee for such amount, then by payment by Seller(s) to the Indemnified   Party on demand by Wire Transfer, and (iii) if the Indemnified Party is a Seller Indemnitee, by   Buyer to the Indemnified Party on demand by Wire Transfer.  A claim or an action, and the liability   for and amount of damages therefor, shall be deemed to be “finally determined” for purposes of   this Article X when the parties to this Agreement have so determined by mutual agreement or, if   disputed, when a final non-appealable Governmental Order has been entered into with respect to   such claim or action.                                         -66-   40733748.21  





 






                 (h)   The representations, warranties and covenants of the Seller Parties and the   Buyer Indemnitees’ rights to indemnification with respect thereto, shall not be affected or deemed   waived by reason of (and the Buyer Indemnitee shall be deemed to have relied upon the   representations and warranties of the Sellers, as applicable, set forth herein notwithstanding) any   investigation made by or on behalf of any of the Buyer Indemnitee (including any of their   Representatives) or by reason of the fact that any of the Buyer Indemnitee or their Representatives   knew or should have known that any such representation or warranty is, was or might be   inaccurate, regardless of whether such investigation was made or such knowledge was obtained   before or after the execution and delivery of this Agreement.                (i)   On the date that is eighteen (18) months from the Closing Date (the “First   Holdback Release Date”), Buyer shall release to each Seller its respective Pro Rata Share of the   amount equal to (a) the First Holdback Release Amount, minus (i) the amount, if any, of any   payments from the Holdback Amount to Buyer Indemnitees contemplated by Section 10.2(g) prior   to the First Holdback Release Date, minus (b) the Indemnification Retention Amount as of the   First Holdback Release Date.  On the date that is thirty-six (36) months from the Closing Date (the   “Second Holdback Release Date”), Buyer shall release to each Seller its respective Pro Rata Share   of the amount equal to (x) any remaining Holdback Amount, minus (y) the amount, if any, of any   payments from the Holdback Amount to Buyer Indemnities contemplated by Section 10.2(g) prior   to the Second Holdback Release Date, minus (z) the Indemnification Retention Amount as of the  Second Holdback Release Date.          Section 10.3 Exclusive Remedies.  Each party acknowledges and agrees that, in the   absence of fraud or willful or intentional misconduct on the part of a party and subject to Sections   2.6 and 12.9 and the rights and remedies under the Non-compete and Nondisclosure Agreements   and the Certificates of Trust, following the Closing the indemnification provisions of Article VIII   or this Article X shall be the sole and exclusive remedies of the parties for the breach or inaccuracy   of any representation or warranty or breach of any covenant or agreement contained in this   Agreement, and notwithstanding anything herein to the contrary, no breach of any representation,   warranty, covenant or agreement contained herein shall give rise to any right on the part of any   party hereto to rescind this Agreement or any of the transactions contemplated hereby.                                     ARTICLE XI                                                                             TERMINATION          Section 11.1 Termination.  This Agreement and the transaction contemplated hereby   may be terminated any time prior to the Closing only as follows:                (a)   by mutual written consent of Buyer and the Seller Parties;                (b)   by either Buyer or the Seller Parties if the Closing shall not have been   consummated on or before June 1, 2019 (the “Outside Date”); provided, however, that the   termination right under this Section 11.1(b) shall not be available to any party whose material   breach of this Agreement has been the cause of, or resulted in, the failure of the Closing to have   been consummated on or before the Outside Date;                                           -67-   40733748.21  





 






               (c)   by either Buyer, on one hand, or the Seller Parties, on the other hand, if a  Governmental Authority shall have issued a Governmental Order or taken any other action that is  final and non-appealable and that restrains, enjoins or otherwise prohibits the consummation of  the transactions contemplated hereby;                (d)   by Buyer, if Buyer is not in material breach of its obligations under this  Agreement, and if there shall have been a material breach by any Seller Parties of any of their  respective representations, warranties, covenants or agreements contained in this Agreement,  which breach would result in the failure to satisfy one or more of the conditions set forth in Section  7.2(a) or Section 7.2(b) and such breach (if curable) has not been cured within (i) thirty (30) days  after written notice thereof by Buyer to the Sellers or (ii) any shorter period of time that remains  between the date such written notice is provided and the Outside Date; or               (e)   by the Seller Parties, if no Seller Party is in material breach of its obligations  under this Agreement, and if there shall have been a material breach by Buyer of any of its  representations, warranties, covenants or agreements contained in this Agreement, which breach  would result in the failure to satisfy one or more of the conditions set forth in Section 7.3(a) or  Section 7.3(b) and such breach (if curable) has not been cured within (i) thirty (30) days after  written notice thereof by the Sellers to Buyer or (ii) any shorter period of time that remains between  the date such written notice is provided and the Outside Date;          Section 11.2 Effect of Termination.  If this Agreement is terminated and the transactions  contemplated hereby are not consummated pursuant to Section 11.1 above, this Agreement will  become null and void and of no further force and effect, except for (a) the provisions of Article I,  Section 5.4, Section 5.5, Article X, Article XI and Article XII and (b) rights and obligations arising  from any breach of this Agreement prior to such termination.                                    ARTICLE XII                                                                      GENERAL PROVISIONS         Section 12.1 Fees and Expenses.  Except for any reimbursement of fees or expenses that  may be awarded as damages in any action, suit or proceeding arising out of this Agreement or any  documents delivered in connection with this Agreement and except as otherwise provided in this  Agreement, each party hereto shall pay its own fees and expenses incident to preparing for,  entering into and carrying out this Agreement and the consummation of the transactions  contemplated hereby.            Section 12.2 Notices.  All notices, requests, demands, waivers and other communications  required or permitted to be given or made under this Agreement shall be in writing and shall be  deemed to have been duly given or made (and shall be deemed to have been duly given or made  upon receipt) if (a) delivered personally, (b) mailed by certified or registered mail (postage prepaid,  return receipt requested) or (c) sent by email with receipt confirmed (followed by delivery of an  original via overnight courier service), as follows (or at such other address for a party as shall be  specified by like notice):                     (i)   if to Buyer, to                                        -68-  40733748.21  





 






                     The Horace Mann Educators Corporation                    1 Horace Mann Place                    Springfield, IL 62715                   Attention:  Donald M. Carley, SVP & General Counsel                   Email:  Donald.Carley@horacemann.com                                      with a copy (which shall not constitute notice) to:                    Eversheds Sutherland (US) LLP                   700 Sixth Street, NW                   Suite 700                   Washington, DC 20001                   Attention:  Ling Ling, Esq.                   Email:  lingling@eversheds-sutherland.com                                        (ii)  if to the Sellers, to                    Benefit Consulting Group, Inc.                   51 Haddonfield Road                   Suite 210                   Cherry Hill Road, NJ 08002                   Attention:  Beau Adams                            Jorge Arroyo                            Adam Paglione                                                    with a copy to:                    MacElree Harvey, Ltd.                   17 West Miner Street                   West Chester, PA 19382                   Attention:  Harry J. DiDonato, Esq.                   Email:  HDiDonato@macelree.com                            Section 12.3 Interpretation.  For purposes of this Agreement, the words “hereof,”  “herein,” “hereby” and other words of similar import refer to this Agreement as a whole (including  any Exhibits, Annexes, Schedules and the disclosure schedules) and not to any particular provision  of this Agreement unless otherwise indicated.  All references herein to Articles, Sections,  Subsections, Paragraphs, Exhibits, Annexes and Schedules shall be deemed references to Articles  and Sections and Subsections and Paragraphs of, and Exhibits, Annexes and Schedules to, this  Agreement unless the context shall otherwise require. The table of contents and headings contained  in this Agreement are for reference purposes only and will not affect in any way the meaning or  interpretation of this Agreement.  Whenever the words “include,” “includes” or “including” are  used in this Agreement, they will be deemed to be followed by the words “without limitation,”  whether or not they are in fact followed by those words or words of like import.  The word “or”  shall not be exclusive.  Whenever the singular is used herein, the same will include the plural, and  whenever the plural is used herein, the same will include the singular, where appropriate.                                        -69-  40733748.21  





 






     Whenever used in this Agreement, reference to a particular gender shall include the masculine,   feminine and neutral genders.  Where this Agreement states that a party “shall,” “will” or “must”   perform in some manner or otherwise act or omit to act, it means that the party is legally obligated   to do so in accordance with this Agreement. All Exhibits and the Seller Disclosure Schedule and   the Buyer Disclosure Schedule annexed hereto or referred to herein are hereby incorporated in and   made a part of this Agreement as if set forth in full herein.  Any capitalized term used in any   Exhibit, Schedule, Annex or section or subsection of the Seller Disclosure Schedule or the Buyer   Disclosure Schedule but not otherwise defined therein will have the meaning given to such term   in this Agreement.  Any reference to “days” means calendar days unless Business Days are   expressly specified.  If any action under this Agreement is required to be done or taken on a day   that is not a Business Day, then such action shall be required to be done or taken not on such day   but on the first succeeding Business Day thereafter.  “Writing,” “written” and comparable terms   refer to printing, typing and other means of reproducing words (including electronic media) in a   visible form.  References from or through any date mean, unless otherwise specified, from and   including or through and including, respectively.  This Agreement is to be construed without   regard to any presumption or rule requiring construction or interpretation against the party drafting   or causing any instrument to be drafted.  Any reference herein to any applicable Law, Contract   (including this Agreement) or document, or any section thereof, shall, unless otherwise expressly   provided, be a reference to such applicable Law, Contract, document or section as amended,   modified or supplemented (including any successor section) and in effect from time to time.    References to “$” or “dollars” are references to United States dollars.            Section 12.4 Entire Agreement; Third-Party Beneficiaries.  This Agreement and the   documents and certificates delivered in connection with this Agreement constitute the entire   agreement of the parties hereto with respect to the subject matter of this Agreement and supersede   all prior agreements and undertakings, both written and oral, other than the Confidentiality   Agreement to the extent not in conflict with this Agreement, between or on behalf of the Sellers  and Buyer with respect to the subject matter of this Agreement.  Except as provided in Section 5.6   with respect to D&O Indemnified Persons, and Article X with respect to Buyer Indemnitees and   Seller Indemnitees, this Agreement is for the sole benefit of the parties to this Agreement and their   permitted successors and assigns, and nothing in this Agreement, express or implied, is intended   to or shall confer upon any other Person any legal or equitable right, benefit or remedy of any   nature whatsoever under or by reason of this Agreement.          Section 12.5 Governing Law.  This Agreement shall be governed by, and construed in   accordance with, the Laws of the State of Illinois, regardless of the Laws that might otherwise   govern under applicable principles of conflicts of laws thereof.          Section 12.6 Assignment.  Neither this Agreement nor any of the rights, interests or   obligations under this Agreement shall be assigned, in whole or in part, by operation of law or   otherwise by any of the parties without the prior written consent of the other parties, and any such   assignment that is not consented to shall be null and void.  Subject to the preceding sentence, this   Agreement shall be binding upon, inure to the benefit of, and be enforceable by, the parties and   their respective successors and assigns.          Section 12.7 Dispute Resolution; Enforcement.                                           -70-   40733748.21  





 






                 (a)   In the event of any dispute arising under this Agreement, prior to the   commencement of litigation, a senior officer of Buyer and the Seller Parties shall attempt in good   faith to resolve the dispute consistent with the terms of this Agreement.  If they are unable to   resolve the dispute in this manner within a reasonable period of time, the parties may pursue   judicial remedies with respect to such dispute.                (b)   The parties agree that any action arising directly or indirectly out of this   Agreement shall be litigated (1) if such action is brought by any Seller against Buyer or its   Affiliates, only in the United States District Court for the Central District of Illinois and (2) if such  action is brought by Buyer, its successors or assigns or its Affiliates against any Seller, only in the  United States District Court for the District of New Jersey. Each party hereby irrevocably and  unconditionally submits to the jurisdiction of the District Court specified above (the “Selected   Court”) for purposes of enforcing this Agreement or determining any claim arising from or related   to the transactions contemplated by this Agreement.  In any such action, suit or other proceeding,   each party hereto irrevocably and unconditionally waives and agrees not to assert by way of   motion, as a defense or otherwise any claim that it is not subject to the jurisdiction of the Selected   Court, that such action, suit or other proceeding is not subject to the jurisdiction of the Selected   Court, that such action, suit or other proceeding is brought in an inconvenient forum or that the   venue of such action, suit or other proceeding is improper.  The parties hereto agree that any   process or other paper to be served in connection with any action or proceeding under this   Agreement shall, if delivered, sent or mailed in accordance with Section 12.2, constitute good,   proper and sufficient service thereof.  Each party hereto also agrees that any final and unappealable  judgment against a party hereto in connection with any action, suit or other proceeding shall be  conclusive and binding on such party and that such award or judgment may be enforced in any  court of competent jurisdiction, either within or outside of the United States.  A certified or  exemplified copy of such award or judgment shall be conclusive evidence of the fact and amount  of such award or judgment.  Notwithstanding anything contained herein to the contrary or any  waivable provision of Law, in the event of litigation among the parties, any prejudgment interest  applied shall be at the Interest Rate.          Section 12.8 Severability; Amendment and Waiver.                  (a)   Whenever possible, each provision or portion of any provision of this  Agreement shall be interpreted in such manner as to be effective and valid under applicable Law,  but if any provision or portion of any provision of this Agreement is held to be invalid, illegal or  unenforceable in any respect under any applicable Law or rule in any jurisdiction, such invalidity,  illegality or unenforceability shall not affect any other provision or portion of any provision in  such jurisdiction so long as the economic or legal substance of the transactions contemplated by  this Agreement is not affected in any manner adverse to any party.  Upon such determination that  any provision is invalid, illegal or unenforceable, the parties shall negotiate in good faith to modify  this Agreement so as to effect the original intent of the parties as closely as possible in a mutually  acceptable manner in order that the transactions contemplated by this Agreement be consummated  as originally contemplated to the greatest extent possible.               (b)   This Agreement may be amended, and the terms hereof may be waived,  only by a written instrument signed by each of the parties or, in the case of a waiver, by the party  waiving compliance.                                         -71-   40733748.21  





 






                 (c)   No delay on the part of any party in exercising any right, power or privilege   hereunder shall operate as a waiver thereof, nor shall any waiver on the part of any party of any   right, power or privilege, nor any single or partial exercise of any such right, power or privilege,   preclude any further exercise thereof or the exercise of any other such right, power or privilege.          Section 12.9 Specific Performance.  The parties agree that irreparable damage would   occur in the event that any of the provisions of this Agreement were not performed in accordance   with their specific terms or were otherwise breached.  It is accordingly agreed that, without the   necessity of posting bonds or other undertaking, the parties shall be entitled to an injunction or   injunctions to prevent breaches of this Agreement and to enforce specifically the terms and   provisions of this Agreement in accordance with this Agreement, this being in addition to any   other remedy to which such party is entitled at law or in equity.  In the event that any action is   brought in equity to enforce the provisions of this Agreement, no party hereto shall allege, and   each party hereto hereby waives the defense or counterclaim, that there is an adequate remedy at   law.          Section 12.10 Certain Acknowledgments; Informed Decision to Sell.                  (a)   Each Seller expressly acknowledges and agrees that (a) except as expressly   set forth in Article IV, neither Buyer nor any of Buyer’s Affiliates nor any of their respective   Representatives has made any representation or warranty or covenant or agreement whatsoever   (whether oral or written or express or implied) to any Seller as to any of the matters that are the   subject of this Agreement (including the Earn-Out Payments) and (b) no act or omission by Buyer   is, or will be deemed to constitute, a representation or warranty by Buyer.                (b)   Without limiting the foregoing, each Seller acknowledges and agrees that   neither Buyer nor any of its Representatives has made any representation or warranty or covenant   or agreement whatsoever (whether oral or written or express or implied) to such Seller as to any   aspect of Buyer’s operations, the achievement of any Total Net Revenue or other performance   targets, or the payment of any amount of the Earn-Out Payments.  EACH SELLER ALSO   EXPRESSLY ACKNOWLEDGES AND AGREES (1) THAT EACH AND EVERY   STATEMENT IN PRIOR DISCUSSIONS (IF ANY) AS TO THE EARN-OUT PAYMENTS   (INCLUDING ANY AS TO THE PROBABILITY OF ACHIEVING THE METRICS SET   FORTH IN SECTION 2.6(B), ANY ASPECT OF BUYER’S OPERATIONS OR THE   PAYMENT OF ANY AMOUNT OF THE EARN-OUT PAYMENTS) IS HEREBY   WITHDRAWN AND (2) THAT THE SELLERS ARE NOT RELYING ON ANY SUCH   STATEMENTS.  Each Seller   further acknowledges and agrees that it, he or she has,  independently and without reliance upon Buyer or any of its Representatives and based on such  documents and information as it, he or she has deemed appropriate has made his, her or its own  appraisal of and investigation into the business, operations, property, prospects, financial and other  conditions affecting any of Buyer’s operations, has it, his or her own assumptions about the future  operations of Buyer’s business, the economies and markets in which Buyer operates, and any  opportunities for improvement of any of Buyer’s operations, and has made its, his or her own  decision to sell the Company Shares and otherwise perform its, his or her obligations in this  Agreement on the terms and conditions set forth in this Agreement (including the Earn-Out  Payments) and otherwise execute, deliver and perform this Agreement.                                         -72-   40733748.21  





 






               (c)   EACH SELLER FURTHER EXPRESSLY ACKNOWLEDGES AND  AGREES THAT THE ACKNOWLEDGEMENTS AND AGREEMENTS IN THIS SECTION  SHALL SURVIVE CLOSING.         Section 12.11 Counterparts.  This Agreement may be executed in one or more  counterparts, and by the different parties to each such agreement in separate counterparts, each of  which when executed will be deemed to be an original but all of which taken together will  constitute one and the same agreement.  Delivery of an executed counterpart of a signature page  by facsimile or other means of electronic transmission shall be as effective as delivery of a  manually executed counterpart of this Agreement.         Section 12.12 WAIVER OF JURY TRIAL.  EACH PARTY TO THIS AGREEMENT  ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY THAT MAY ARISE  UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT  ISSUES AND, THEREFORE, EACH SUCH PARTY HEREBY IRREVOCABLY AND  UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY  JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF  OR RELATING TO THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED BY  THIS AGREEMENT.  EACH PARTY HERETO CERTIFIES AND ACKNOWLEDGES THAT  (A) NO REPRESENTATIVE, AGENT OR ATTORNEY OR ANY OTHER PARTY HAS  REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD  NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER,  (B) EACH PARTY HERETO UNDERSTANDS AND HAS CONSIDERED THE  IMPLICATIONS OF THIS WAIVER, (C) EACH PARTY HERETO MAKES THIS WAIVER  VOLUNTARILY AND (D) EACH PARTY HERETO HAS BEEN INDUCED TO ENTER INTO  THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND  CERTIFICATIONS OF THIS SECTION 12.12. ANY PARTY HERETO MAY FILE AN  ORIGINAL COUNTERPART OR A COPY OF THIS AGREEMENT WITH ANY COURT AS  WRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES TO THE WAIVER OF THEIR  RIGHT TO TRIAL BY JURY.                      [Remainder of this page intentionally left blank.]                                                  -73-  40733748.21  





 






     IN WITNESS WHEREOF, the parties have caused this Agreement to be signed by their  respective officers thereunto duly authorized, all as of the date first written above.                                      HORACE MA           ATORS                                    CORPORAT                                     By    ,                                       Na  e: M,  ck 2tArati- LS                                       T. e: c est +- i G g: 0                          Signature Page to Stock Purchase Agreement  





 






      IN WITNESS WHEREOF, the parties have caused this Agreement to be signed by their  respective officers thereunto duly authorized, all as of the date first written above.                                          ROBERT PAGLIONE                                          PAGLIONE FAMILY TRUST F/B/O ADAM                                        PAGLIONE                                         By                                           Name: Lisa Arroyo                                           Title: Trustee for Paglione Family Trust F/B/O                                                Adam Paglione                                         PAGLIONE FAMILY TRUST F/B/O LISA AND                                        JORGE ARROYO                                         By                                           Name:  Adam Paglione                                           Title: Trustee for Paglione Family Trust F/B/O                                                Lisa and Jorge Arroyo                                         BEAU ADAMS                                          BENEFITS CONSULTAN       S GROUP, INC.                                         By                                           Nam‘:  Jorg' Arr yo                                           Title: President                             Signature Page to Stock Purchase Agreement  





 






      IN WITNESS WHEREOF, the parties have caused this Agreement to be signed by their  respective officers thereunto duly authorized, all as of the date first written above.                                     ROBERT PAGLIONE                                     PAGLIONE FAMILY TRUST F/B/0 ADAM                                   PAGLIONE                                   By           /                                        ame:         ✓                                      Title:                                    PAGLIONE FAMILY TRUST F/B/0 LISA AND                                    JORGE ARROYO                                    By                                      Name:                                      Title:                                     BEAU ADAMS                                      BENEFITS CONSULTANTS GROUP, INC.                                    By                                      Name:                                      Title:                          Signature Page to Stock Purchase Agreement  





 






                                  Exhibit A                                 Certificates of Trust                                 [Executed at signing]                                        A-1 40733748.21  





 






                                  Exhibit B                              Indebtedness Payoff Amount                               As of September 30, 2018   FirsTrust Line of Credit Account #10172-504870            $    497,678.25   FirsTrust Term Loan Acct 8026                                   279,268.56   FirsTrust Term Loan Acct 8027                                   242,288.80   FirsTrust Letter of credit Acct 0832 (Landlord holds letter -0-  drawdowns)                                                        -      Salary Continuation Agreement (Robert Paglione)              5,000,000.00   Phantom Stock Plan (Stephen Sokolic)1                           629,816.50   Sokolic Release Consideration                                    40,000.00   Note Payable - Beau Adams                                        44,000.00   Note Payable - Jorge Arroyo                                      44,000.00   Note Payable - Adam Paglione                                     44,000.00                                                            $ 6,821,052.61    1 As of October 30, 2018                                        B-1 40733748.21  





 






                                  Exhibit C                       Non-Compete and Non-Disclosure Agreement                                     [See attached.]                                        C-1 40733748.21  





 






                                                                     NON-COMPETITION, NON-SOLICITATION                        AND NON-DISCLOSURE AGREEMENT          This Non-Competition, Non-Solicitation and Non-Disclosure Agreement (this  “Agreement”) is entered into as of the ____ day of ____________, 2018, by and between Horace   Mann Educators Corporation, a Delaware corporation (“Buyer”), and [Name of Principal]1 (the   “Principal”).           WHEREAS, in connection with that certain Stock Purchase Agreement, dated as   of____________ , 2018, by and among Buyer, Robert Paglione, the Paglione Family Irrevocable   Trust f/b/o Adam Paglione, the Paglione Family Irrevocable Trust f/b/o Lisa and Jorge Arroyo,   Beau Christian Adams, and Benefit Consultants Group, Inc. (the “Company”) (the “Stock   Purchase Agreement”), Buyer is acquiring all of the equity of the Company;          WHEREAS, the Principal is currently an employee of the Company;         WHEREAS, Buyer or one of its Affiliates wishes to employ the Principal with respect to  the continued business and operations of the Company and its Subsidiaries following the Closing  and the Principal agrees to continue in the employ of Buyer or its Affiliate following the Closing;  and         WHEREAS, the Principal acknowledges that the execution and delivery of this  Agreement is a condition to Buyer’s obligation to consummate the transactions pursuant to the  Stock Purchase Agreement and that Buyer is relying on the Principal’s entering into this  Agreement in consummating such transactions.          NOW, THEREFORE, in consideration of the premises and the mutual agreements  contained in this Agreement and the Stock Purchase Agreement, the parties agree as follows:          1.    Defined Terms.  All capitalized terms not expressly defined in this Agreement   shall have the respective meanings ascribed to them in the Stock Purchase Agreement.          2.    Acknowledgment.  The Principal acknowledges that (i) the execution and   delivery of this Agreement is a condition to Buyer’s obligation to purchase the Company Shares   pursuant to the Stock Purchase Agreement and that Buyer is relying on this Agreement in   consummating such purchase, (ii) Buyer intends to carry on the business of the Company and its   Subsidiaries, and (iii) the Principal will receive significant remuneration in connection with the   transactions consummated under the Stock Purchase Agreement. The Principal further   acknowledges that (i) he has become familiar with confidential information and trade secrets of   the Company and its Subsidiaries and Affiliates, and, during the course of his employment with   Buyer or its Affiliate, will become familiar with the confidential information and trade secrets of   the Buyer Entities; and (ii) his services are of special, unique and extraordinary value to the                                                       1 Note to Draft: Principals who are continuing employment post-Closing to sign this Agreement (i.e., Adam   Paglione, Jorge Arroyo and Beau Adams).                                         1   40947999.4   2983433v2   020818.64824  





 






   Buyer Entities.  For the purposes of this Agreement, “Buyer Entities” means Buyer and its  Subsidiaries and Affiliates (including the Company and its Affiliates and Subsidiaries).         3.    Covenant Not to Compete.  During the Principal’s employment with Buyer or its  Affiliate and for an additional twelve (12) month period following the Principal’s termination of  employment for any reason (the “Restricted Period”), the Principal agrees that, except as  otherwise occurring in the performance of his duties as an employee of Buyer or its Affiliate, he  (i) shall refrain from, directly or indirectly, engaging in, soliciting for engagement in, performing  services (whether as employee, officer, director, shareholder, member, manager, consultant,  investor, partner, sole proprietor or otherwise) for, or be concerned with or interested in,  financially or otherwise, or offering or providing anywhere in the United States any business of  the types (x) conducted by a Buyer Entity as of the date of the Principal’s termination of  employment (the “Termination Date”), or (y) actively developed, marketed or solicited by a  Buyer Entity during the twelve (12) month period prior to the Termination Date; and (ii) shall  not sell or propose to sell to, or otherwise solicit, whether through another employee, a producer  or otherwise, any other services, including but not limited to Recordkeeping Services, provided  by a Buyer Entity to any Plan Sponsor (clauses (i) and (ii) collectively, a “Competing  Business”); provided, however, that nothing in this Section 3 shall preclude, prohibit or restrict  the Principal from engaging, or require the Principal not to engage, in making investments in  Persons engaging in a Competing Business not in excess of two percent (2%) of the outstanding  securities  of such entity. For purposes of this Agreement, “Plan Sponsor” means an employer or  other entity that sponsors or maintains non-qualified deferred compensation plans, qualified  defined contribution or defined benefit plans or other arrangements or programs with respect to  which a Buyer Entity provides services as of the Termination Date or has actively solicited  during the twelve (12) month period prior to the Termination Date.          4.    Non-Solicitation, Non-Disparagement.  During the Restricted Period, the  Principal shall not, except as otherwise occurring in the performance of his duties as an  employee of Buyer or its Affiliate; directly or indirectly, (a) solicit for employment or hire any  employee who is then a current employee of any Buyer Entity, or within the six (6)-month period  prior to the Termination Date, has been an employee, of any Buyer Entity; (b) (i) hire or solicit  for hire any Producer who is then a Producer, or within the twelve (12) month period prior to the  Termination Date has been a Producer, or (ii) solicit, encourage, initiate or participate in  discussions or negotiations with, or provide any information to, any present or future Producer  for the purpose of causing the  termination or other alteration of his, her or its relationship with a  Buyer Entity; (c) (i) solicit insurance business from any Person who is then a policyholder or  customer of a Buyer Entity, or within the twelve (12) month period prior to the Termination Date  has been a policyholder or customer of a Buyer Entity (or any successor in interest to any such  Person) for the purpose of securing Record Keeping Services or insurance business or contracts  related to the Record Keeping Services or insurance businesses of the Buyer Entities, or  (ii) solicit, encourage, initiate or participate in discussions or negotiations with, or provide any  information to, any present or future policyholder or customer of a Buyer Entity for the purpose  of causing the termination or other alteration of his, her or its relationship with a Buyer Entity;  (d) solicit or attempt to solicit any Competing Business from any Person with whom the  Principal and/or employees managed by the Principal had material contact, and that is, or in the  twelve (12) month period prior to the Termination Date was, a customer of a Buyer Entity or                                         2  40947999.4  2983433v2  020818.64824  





 






     with respect to which any Buyer Entity actively solicits, or has solicited, the sale of products and   services offered by the Buyer Entities; or (e) disparage a Buyer Entity or any of their products,   services, or activities or any of their partners, officers, or employees.  For the purposes of this   Agreement, “Producer” means brokers, broker-dealers, producers, third party administrators or  intermediaries or other Persons who market or sell the services offered by a Buyer Entity, other  than employees of the Buyer Entities.          5.    Confidentiality, Non-Disclosure. Except as otherwise expressly required by   Law, the Principal shall not disclose any Confidential Information (as defined below) to any   Person whatsoever, other than as authorized by the Buyer Entities during the performance of the   Principal’s duties as an employee of Buyer or its Affiliate.  For purposes of this Agreement  “Confidential Information” means the confidential or proprietary business information of the   Buyer Entities, whether or not marked as such, whether acquired by the Buyer Entities prior to or   after Closing, including any business plans, technology, plans, blueprints, drawings, models,   designs, templates, processes, formulae, computer programs, customer lists, supplier lists,   pricing data, financial data, Trade Secrets or other information identified or otherwise treated as   confidential or proprietary business information; provided, however, that Confidential   Information shall not include any information: (x) that is in the public domain through no fault of   disclosure by the Principal, or (y) that is lawfully acquired by the Principal from source(s) which   are not prohibited from disclosing such information by a legal, contractual or fiduciary   obligation. The Principal acknowledges and agrees that the Confidential Information is owned by   the Buyer Entities, is secret, is the subject of reasonable efforts by the Buyer Entities to keep it   secret, and has value because of its secrecy.  If the Principal is compelled to disclose any   information by judicial or administrative process or by other requirements of applicable Law, the   Principal shall promptly notify Buyer in writing, shall disclose only that portion of such   information which he is advised by counsel in writing is legally required to be disclosed, and   shall, if requested, use reasonable best efforts to obtain an appropriate protective order or other   reasonable assurance that confidential treatment will be accorded such information.   Notwithstanding the foregoing, nothing in this Agreement prohibits the Principal from reporting   to any governmental authority information concerning possible violations of law or regulation.   The Principal further acknowledges that, at all times, Trade Secrets shall be subject to the   maximum protections available under applicable Law and no less protection than that provided   by this Agreement applicable to “Confidential Information,” as described in this Section 5. For   the purposes of this Agreement, “Trade Secrets” means information that (i) derives economic   value, actual or potential, from not being generally known and not being readily ascertainable to   other persons who can obtain economic value from its disclosure or use and that is the subject of   reasonable efforts by the Buyer Entities to maintain its secrecy or confidentiality and has value   as a result of such secrecy or confidentiality, or (ii) is defined as such by the New Jersey   statutory and common law and by federal law.  Trade Secrets may include either technical or   non-technical data, including, without limitation, information concerning customers of the Buyer   Entities (including customer information, identities, profiles, preferences and contacts), vendors,   suppliers, products, pricing or pricing strategies, personnel assignments and policies, the legal or   financial affairs, or the management of, in each case, the Buyer Entities.           6.    Right To Injunction; Equitable Relief.  In the event the Principal violates any of   his obligations under Sections 3, 4 or 5, the Buyer Entities may proceed against him in law or in                                          3   40947999.4   2983433v2   020818.64824  





 






   equity for such damages or other relief as a court may deem appropriate.  The Principal  acknowledges that a violation of any of the provisions of Sections 3, 4 or 5 may cause the Buyer  Entities irreparable harm which may not be adequately compensated for by money damages.   The Principal therefore agrees that in the event of any actual or threatened violation of Sections  3, 4 or 5, the Buyer Entities shall be entitled, in addition to other remedies that they may have, to  a temporary restraining order and to preliminary and final injunctive relief against the Principal  to prevent any violations of Sections 3, 4 or 5, without the necessity of posting a bond.  It is the  intent and understanding of each party hereto that if, in any action before any court or other  Governmental Authority legally empowered to enforce this Agreement, any term, restriction,  covenant or promise in Sections 3, 4 or 5 is found to be unreasonable and for that reason  unenforceable, then such term, restriction, covenant or promise shall be deemed modified to the  extent necessary to make it enforceable by such court or other Governmental Authority and any  such court or other Governmental Authority shall have authority, as permitted by applicable  Law, to apply reformation or “blue pencil” principles to provide for the greatest possible  duration, geographical territory and business scope to the covenants contained herein.         7.    Covenants Reasonable.  The parties to this Agreement acknowledge that the  covenants set forth in Sections 3, 4, 5 and 6 are (i) reasonable in all respects, including duration,  territory and scope of activity restricted, in light of the transactions contemplated by this  Agreement and the Stock Purchase Agreement; (ii) an essential element of this Agreement and  that, but for these covenants, the parties would not have entered into the Stock Purchase  Agreement; and (iii) necessary to protect the goodwill of the Buyer Entities and to protect other  legitimate business interests of the Buyer Entities.         8.    Severability.  Whenever possible, each provision or portion of any provision of  this Agreement shall be interpreted in such manner as to be effective and valid under applicable  Law, but if any provision or portion of any provision of this Agreement is held to be invalid,  illegal or unenforceable in any respect under any applicable Law or rule in any jurisdiction, such  invalidity, illegality or unenforceability shall not affect any other provision or portion of any  provision in such jurisdiction so long as the economic or legal substance of the transactions  contemplated by this Agreement is not affected in any manner adverse to any party.  Upon such  determination that any provision is invalid, illegal or unenforceable, the parties shall negotiate in  good faith to modify this Agreement so as to effect the original intent of the parties as closely as  possible in a mutually acceptable manner in order that the transactions contemplated by this  Agreement be consummated as originally contemplated to the greatest extent possible.           9.    Failure or Indulgence Not Waiver; Remedies Cumulative.  No delay on the  part of any party in exercising any right, power or privilege hereunder shall operate as a waiver  thereof, nor shall any waiver on the part of any party of any right, power or privilege, nor any  single or partial exercise of any such right, power or privilege, preclude any further exercise  thereof or the exercise of any other such right, power or privilege. Any and all remedies herein  expressly conferred upon a party will be deemed cumulative with and not exclusive of any other  remedy conferred hereby, or by Law or equity upon such party, and the exercise by a party of  any one remedy will not preclude the exercise of any other remedy.         10.   Notices.  All notices, requests, demands, waivers and other communications  required or permitted to be given or made under this Agreement shall be in writing and shall be                                        4  40947999.4  2983433v2  020818.64824  





 






     deemed to have been duly given or made (and shall be deemed to have been duly given or made   upon receipt) if (a) delivered personally or by a nationally recognized overnight courier, (b)   mailed by certified or registered mail (postage prepaid, return receipt requested) or (c) sent by   facsimile or email with receipt confirmed (followed by delivery of an original via overnight   courier service), as follows (or at such other address for a party as shall be specified by like   notice):    (a)   If to Buyer, to          Horace Mann Educators Corporation         1 Horace Mann Place         Springfield, IL 62715         Attention:  Donald M. Carley, SVP & General Counsel         Email:  Donald.Carley@horacemann.com    (b)   if to the Principal, to        [●]    or to such other address as the party to whom notice is to be given may have furnished to the   other party in writing in accordance with this Section 10. All such notices or communications   shall be deemed to be received (i) in the case of personal delivery, nationally recognized   overnight courier or registered or certified mail, on the date of such delivery and (ii) in the case   of facsimile or email, upon confirmed receipt.          11.   Assignment.   Neither this Agreement nor any of the rights, interests or   obligations under this Agreement shall be assigned, in whole or in part, by operation of law or   otherwise by any of the parties without the prior written consent of the other parties, and any   such assignment that is not consented to shall be null and void.  Subject to the preceding   sentence, this Agreement shall be binding upon, inure to the benefit of, and be enforceable by,   the parties and their respective successors and assigns.          12.   Entire Agreement.  This Agreement and the Stock Purchase Agreement, and the   documents and certificates delivered in connection therewith, constitute the entire agreement of   the parties hereto with respect to the subject matter of this Agreement and supersede all prior   agreements and undertakings, both written and oral, between or on behalf of the Principal and  Buyer with respect to the subject matter of this Agreement.          13.   Execution and Delivery.  This Agreement may be executed in one or more   counterparts, and by the different parties in separate counterparts, each of which when executed   will be deemed to be an original but all of which taken together will constitute one and the same   agreement.  Delivery of an executed counterpart of a signature page by facsimile or other means   of electronic transmission shall be as effective as delivery of a manually executed counterpart of   this Agreement.          14.   Governing Law; Jurisdiction; Waiver of Jury Trial.                                           5   40947999.4   2983433v2   020818.64824  





 






                 (a)   This Agreement shall be governed by, and construed in accordance with,   the Laws of the State of New Jersey, regardless of the Laws that might otherwise govern under   applicable principles of conflicts of laws thereof.                (b)   Each party hereby irrevocably and unconditionally submits to the   exclusive jurisdiction of any court of the United States or any state court, which in either case is   located in the State of New Jersey (each, a “New Jersey Court”) for purposes of enforcing this   Agreement or determining any claim arising from or related to the transactions contemplated by   this Agreement.  In any such action, suit or other proceeding, each party hereto irrevocably and   unconditionally waives and agrees not to assert by way of motion, as a defense or otherwise any   claim that it is not subject to the jurisdiction of any such New Jersey Court, that such action, suit   or other proceeding is not subject to the jurisdiction of any such New Jersey Court, that such   action, suit or other proceeding is brought in an inconvenient forum or that the venue of such   action, suit or other proceeding is improper; provided, however, that nothing set forth in this   sentence shall prohibit any party hereto from removing any matter from one New Jersey Court to   another New Jersey Court.  The parties hereto agree that any process or other paper to be served   in connection with any action or proceeding under this Agreement shall, if delivered, sent or   mailed in accordance with Section 10 constitute good, proper and sufficient service thereof.    Each party hereto also agrees that any final and unappealable judgment against a party hereto in   connection with any action, suit or other proceeding shall be conclusive and binding on such   party and that such award or judgment may be enforced in any court of competent jurisdiction,   either within or outside of the United States.  A certified or exemplified copy of such award or  judgment shall be conclusive evidence of the fact and amount of such award or judgment.   Notwithstanding anything contained herein to the contrary or any waivable provision of Law, in  the event of litigation among the parties, any prejudgment interest applied shall be at the Interest  Rate.                (c)   EACH PARTY TO THIS AGREEMENT ACKNOWLEDGES AND   AGREES THAT ANY CONTROVERSY THAT MAY ARISE UNDER THIS AGREEMENT   IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE,   EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES   ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY   LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS   AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.    EACH PARTY HERETO CERTIFIES AND ACKNOWLEDGES THAT (A) NO   REPRESENTATIVE, AGENT OR ATTORNEY OR ANY OTHER PARTY HAS   REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD   NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER,   (B) EACH PARTY HERETO UNDERSTANDS AND HAS CONSIDERED THE   IMPLICATIONS OF THIS WAIVER, (C) EACH PARTY HERETO MAKES THIS WAIVER   VOLUNTARILY AND (D) EACH PARTY HERETO HAS BEEN INDUCED TO ENTER   INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND   CERTIFICATIONS OF THIS SECTION 14. ANY PARTY HERETO MAY FILE AN   ORIGINAL COUNTERPART OR A COPY OF THIS AGREEMENT WITH ANY COURT AS   WRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES TO THE WAIVER OF   THEIR RIGHT TO TRIAL BY JURY.                                          6   40947999.4   2983433v2   020818.64824  





 






         15.   Amendment.  This Agreement may be amended, and the terms hereof may be  waived, only by a written instrument signed by each of the parties or, in the case of a waiver, by  the party waiving compliance.                  IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date  first written above.                                   BUYER:                                                                HORACE MANN EDUCATORS CORPORATION                                                                                                By: ___________________________________                                Name:                                 Title:                                                                                                 PRINCIPAL:                                                                  [Name of Principal]                                                                                                ____________________________________                                                                                        7  40947999.4  2983433v2  020818.64824  





 






                                  Exhibit D                                   Spousal Consent                                 [Executed at signing]                                        D-1 40733748.21  





 






                                  Exhibit E                                   Form of Release                                     [See attached.]                                        E-1 40733748.21  





 






                                                                                                                                               [_________], 2018                                            [Benefit Consultants Group, Inc.]      [BCG Securities, Inc.]     [Horace Mann Educators Corp.]                Re: Release of Claims1            Ladies and Gentlemen:                  Reference is made to that certain Stock Purchase Agreement, dated as of the date hereof,      by and among Horace Mann Educators Corporation (“Buyer”), Robert Paglione, The Paglione      Family Irrevocable Trust f/b/o Adam Paglione, The Paglione Family Irrevocable Trust f/b/o Lisa      and Jorge Arroyo, Beau Christian Adams, and Benefit Consultants Group, Inc. (the “Company”)      (the “Stock Purchase Agreement”).  Any undefined terms used herein and not defined have the      meanings set forth in the Stock Purchase Agreement.                        I acknowledge and agree that execution and delivery of this Release of Claims (this      “Release”) is a condition to Buyer’s obligation to purchase the Company Shares pursuant to the      Stock Purchase Agreement, and that Buyer is relying on this Release in consummating such      purchase. For good and valuable consideration, the receipt and sufficiency of which is hereby      acknowledged, and intending to be legally bound, in order to induce Buyer to purchase the      Company Shares pursuant to the Stock Purchase Agreement, I agree as follows:                   I, [___________], on behalf of myself and my heirs, executors, administrators and      assigns (collectively, “Related Persons”), hereby forever, absolutely, unconditionally and      irrevocably release, acquit and forever discharge, to the fullest extent permitted by Law, the      Company, BCG Securities, Inc. (“BCGS”), Buyer, Buyer’s Affiliates, each of their Benefit      Plans, and each of their respective past, present and future officers, managers, directors,      equityholders, partners, members, Affiliates, employees, counsel and agents (individually, a      “Releasee” and collectively, “Releasees”) from all obligations and liabilities of either the      Company or BCGS to me, all agreements and understandings of either the Company or BCGS      involving me, and all of my rights, claims and causes of action (whether at law or in equity and      whether or not currently known to exist) against either the Company or BCGS that are a result      of, involve or otherwise exist by reason of any act, omission, fact, circumstance or other matter,      cause or thing whatsoever that arose, occurred or existed before the Closing, including without      limitation any indemnification obligations to me, and the right to advancement and      reimbursement of expenses, pursuant to the organizational documents of the Company or BCGS      (collectively, the “Released Claims”). For clarity, notwithstanding anything herein to the      contrary, this Release does not in any way release any loss, liability, claim, damage or expense      (including indemnity, costs of investigation and defense and reasonable attorneys’ and      accountants’ fees), whether or not involving third-party claims, arising directly or indirectly from      or in connection with the Stock Purchase Agreement or any documents ancillary thereto or      executed in connection therewith.                                                               1 Note to Draft: This form to be used for the beneficiaries of the Trusts (L. Arroyo, Jorge Arroyo, and A. Paglione).            41006896.2   2983440v2  020818.64824  





 






                                                                                                           I represent and warrant to each Releasee that I have not transferred, assigned, or      otherwise disposed of any part of or interest in any Released Claim. I hereby irrevocably      covenant not to, directly or indirectly, assert any claim or demand, or commence, institute, or      voluntarily aid in any way, or cause to be commenced or instituted, any proceeding of any kind      against any Releasee based upon any Released Claim.                        Without in any way limiting any rights and remedies otherwise available to any Releasee,      I agree to indemnify and hold harmless each Releasee from and against and shall pay to each      Releasee the amount of, or reimburse each Releasee for, all loss, liability, claim, damage      (including incidental and consequential damages), or expense (including costs of investigation      and defense and reasonable attorneys’ and accountants’ fees), whether or not involving third-     party claims, arising directly or indirectly from or in connection with (a) the assertion by or on      behalf of me or any of my Related Persons of any Released Claim, and (b) the assertion by any      third party of any claim or demand against any Releasee which claim or demand arises directly     or indirectly from, or in connection with, any assertion by or on behalf of me or any of my     Related Persons against such third party of any Released Claim.                      I acknowledge and agree that the execution of this Release does not constitute in any     manner whatsoever an admission of liability on the part of any Releasee for any Released Claim,     and that such liability is specifically denied.                      I agree to (a) execute and deliver such other documents and (b) do such other acts and     things, as Buyer may reasonably request for the purpose of carrying out the intent of this     Release.                      This Release may not be amended, supplemented, or otherwise modified except in a     writing signed by the Person against whose interest such change will operate.                      All matters relating to or arising out of this Release will be governed by and construed in     accordance with the Laws of the State of New Jersey, regardless of the Laws that might     otherwise govern under applicable principles of conflicts of laws thereof.                                                                    Very truly yours,                                                              [____________]              41006896.2   2983440v2  020818.64824  





 






                                                                                                                                         [_________], 2018                                      [Benefit Consultants Group, Inc.]   [BCG Securities, Inc.]   [Horace Mann Educators Corp.]          Re: Letter of Resignation and Release1      Ladies and Gentlemen:            Reference is made to that certain Stock Purchase Agreement, dated as of the date hereof,   by and among Horace Mann Educators Corporation (“Buyer”), Robert Paglione, The Paglione   Family Irrevocable Trust f/b/o Adam Paglione, The Paglione Family Irrevocable Trust f/b/o Lisa   and Jorge Arroyo, Beau Christian Adams, and Benefit Consultants Group, Inc. (the “Company”)   (the “Stock Purchase Agreement”).  Any undefined terms used herein and not defined have the   meanings set forth in the Stock Purchase Agreement.                  I acknowledge and agree that execution and delivery of this Letter of Resignation and   Release (this “Letter Agreement”) is a condition to Buyer’s obligation to purchase the Company   Shares pursuant to the Stock Purchase Agreement, and that Buyer is relying on this Letter   Agreement in consummating such purchase. For good and valuable consideration, in the amount   of forty-thousand dollars ($40,000), the receipt and sufficiency of which is hereby acknowledged,   and intending to be legally bound, in order to induce Buyer to purchase the Company Shares   pursuant to the Stock Purchase Agreement, I agree as follows:             I, [Steven Sokolic], do hereby resign from my position as [General Counsel of the   Company and BCG Securities, Inc., a Pennsylvania Corporation (“BCGS”)]2, effective as of the   Closing of (and conditioned upon the Closing under) the Stock Purchase Agreement.                   In addition, on behalf of myself and my heirs, executors, administrators and assigns   (collectively, “Related Persons”), I hereby forever, absolutely, unconditionally and irrevocably   release, acquit and forever discharge, to the fullest extent permitted by Law, the Company, BCGS,   Buyer, Buyer’s Affiliates, each of their Benefit Plans, and each of their respective past, present   and future officers, managers, directors, equityholders, partners, members, Affiliates, employees,   counsel and agents (individually, a “Releasee” and collectively, “Releasees”) from all obligations   and liabilities of either the Company or BCGS to me, all agreements and understandings of either   the Company or BCGS involving me, and all of my rights, claims and causes of action (whether   at law or in equity and whether or not currently known to exist) against either the Company or   BCGS that are a result of, involve or otherwise exist by reason of any act, omission, fact,   circumstance or other matter, cause or thing whatsoever that arose, occurred or existed before the   Closing, including without limitation any indemnification obligations to me, and the right to   advancement and reimbursement of expenses, pursuant to the organizational documents of the   Company or BCGS (collectively, the “Released Claims”).                                                               1 Note to Draft: This form to be used for S. Sokolic   2 Note to Draft: To confirm       41006865.2  





 






                                                                                         I represent and warrant to each Releasee that I have not transferred, assigned, or otherwise   disposed of any part of or interest in any Released Claim. I hereby irrevocably covenant not to,   directly or indirectly, assert any claim or demand, or commence, institute, or voluntarily aid in any   way, or cause to be commenced or instituted, any proceeding of any kind against any Releasee  based upon any Released Claim.                Without in any way limiting any rights and remedies otherwise available to any Releasee,  I agree to indemnify and hold harmless each Releasee from and against and shall pay to each  Releasee the amount of, or reimburse each Releasee for, all loss, liability, claim, damage (including  incidental and consequential damages), or expense (including costs of investigation and defense  and reasonable attorneys’ and accountants’ fees), whether or not involving third-party claims,  arising directly or indirectly from or in connection with (a) the assertion by or on behalf of me or  any of my Related Persons of any Released Claim, and (b) the assertion by any third party of any  claim or demand against any Releasee which claim or demand arises directly or indirectly from,  or in connection with, any assertion by or on behalf of me or any of my Related Persons against  such third party of any Released Claim.                I acknowledge and agree that the execution of this Letter Agreement does not constitute in  any manner whatsoever an admission of liability on the part of any Releasee for any Released  Claim, and that such liability is specifically denied.                I agree to (a) execute and deliver such other documents and (b) do such other acts and  things, as Buyer may reasonably request for the purpose of carrying out the intent of this Letter  Agreement.                This Letter Agreement may not be amended, supplemented, or otherwise modified except  in a writing signed by the Person against whose interest such change will operate.                All matters relating to or arising out of this Letter Agreement will be governed by and  construed in accordance with the Laws of the State of New Jersey, regardless of the Laws that  might otherwise govern under applicable principles of conflicts of laws thereof.                                                        Very truly yours,                                                [Steven Sokolic]        41006865.2  





 






                                                                                                                                         [_________], 2018                                      [Benefit Consultants Group, Inc.]   [BCG Securities, Inc.]  [Horace Mann Educators Corp.]          Re: Letter of Resignation, Release, Non-Competition, Non-Solicitation and Non-           Disclosure1      Ladies and Gentlemen:            Reference is made to that certain Stock Purchase Agreement, dated as of the date hereof,   by and among Horace Mann Educators Corporation (“Buyer”), myself, The Paglione Family   Irrevocable Trust f/b/o Adam Paglione, The Paglione Family Irrevocable Trust f/b/o Lisa and Jorge   Arroyo, Beau Christian Adams, and Benefit Consultants Group, Inc. (the “Company”) (the “Stock   Purchase Agreement”).  Any undefined terms used herein and not defined have the meanings set   forth in the Stock Purchase Agreement.                  I acknowledge that I own the Class A Voting Stock of the Company (my “Equity Interest”)   and, in connection with such ownership, have significantly contributed to the development and   goodwill of the Company. I acknowledge that in connection with the consummation of the   transactions contemplated by the Stock Purchase Agreement (the “Transaction”), I will receive   significant proceeds from the sale of my Equity Interest and that a significant asset the Buyer is   purchasing pursuant to the Transaction (and for which I am receiving proceeds) is such   development and goodwill of the Company.                   I acknowledge and agree that execution and delivery of this Letter of Resignation, Release,   Non-Competition, Non-Solicitation and Non-Disclosure (this “Letter Agreement”) is a condition   to Buyer’s obligation to purchase the Company Shares pursuant to the Stock Purchase Agreement,   that Buyer is relying on this Letter Agreement in consummating the Transaction and that without   my agreement to such Letter Agreement, the Buyer would not consummate the Transaction. For   good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged,   and intending to be legally bound, in order to induce Buyer to purchase the Company Shares   pursuant to the Stock Purchase Agreement, I agree as follows:             I, Robert Paglione, do hereby resign from my position as [Chief Executive Officer and   member of the board of directors of the Company and BCG Securities, Inc., a Pennsylvania   Corporation (“BCGS”)]2, effective as of the Closing of (and conditioned upon the Closing under)   the Stock Purchase Agreement.                   In addition, on behalf of myself and my heirs, executors, administrators and assigns   (collectively, “Related Persons”), I hereby forever, absolutely, unconditionally and irrevocably   release, acquit and forever discharge, to the fullest extent permitted by Law, the Company, BCGS,   Buyer, Buyer’s Affiliates, each of their Benefit Plans, and each of their respective past, present                                                      1 Note to Draft: This form to be used for R. Paglione   2 Note to Draft: To confirm       40875129.6  





 






                                                                                 and future officers, managers, directors, equityholders, partners, members, Affiliates, employees,  counsel and agents (individually, a “Releasee” and collectively, “Releasees”) from all obligations  and liabilities of either the Company or BCGS to me, all agreements and understandings of either  the Company or BCGS involving me, and all of my rights, claims and causes of action (whether  at law or in equity and whether or not currently known to exist) against either the Company or  BCGS that are a result of, involve or otherwise exist by reason of any act, omission, fact,  circumstance or other matter, cause or thing whatsoever that arose, occurred or existed before the  Closing, including without limitation any indemnification obligations to me, and the right to  advancement and reimbursement of expenses, pursuant to the organizational documents of the  Company or BCGS (collectively, the “Released Claims”). For clarity, notwithstanding anything  herein to the contrary, this Letter Agreement does not in any way release any loss, liability, claim,  damage or expense (including indemnity, costs of investigation and defense and reasonable  attorneys’ and accountants’ fees), whether or not involving third-party claims, arising directly or  indirectly from or in connection with the Stock Purchase Agreement or any documents ancillary  thereto or executed in connection therewith.                I represent and warrant to each Releasee that I have not transferred, assigned, or otherwise  disposed of any part of or interest in any Released Claim. I hereby irrevocably covenant not to,  directly or indirectly, assert any claim or demand, or commence, institute, or voluntarily aid in any  way, or cause to be commenced or instituted, any proceeding of any kind against any Releasee  based upon any Released Claim.                Without in any way limiting any rights and remedies otherwise available to any Releasee,  I agree to indemnify and hold harmless each Releasee from and against and shall pay to each  Releasee the amount of, or reimburse each Releasee for, all loss, liability, claim, damage (including  incidental and consequential damages), or expense (including costs of investigation and defense  and reasonable attorneys’ and accountants’ fees), whether or not involving third-party claims,  arising directly or indirectly from or in connection with (a) the assertion by or on behalf of me or  any of my Related Persons of any Released Claim, and (b) the assertion by any third party of any  claim or demand against any Releasee which claim or demand arises directly or indirectly from,  or in connection with, any assertion by or on behalf of me or any of my Related Persons against  such third party of any Released Claim.                I acknowledge and agree that the execution of this Letter Agreement does not constitute in  any manner whatsoever an admission of liability on the part of any Releasee for any Released  Claim, and that such liability is specifically denied.                I acknowledge and agree that for a period of sixty (60) months from the date hereof (the  “Restricted Period”), I (i) shall refrain from, directly or indirectly, engaging in, soliciting for  engagement in, performing services (whether as employee, officer, director, shareholder, member,  manager, consultant, investor, partner, sole proprietor or otherwise) for, or be concerned with or  interested in, financially or otherwise, or offering or providing anywhere in the United States any  business of the types (x) conducted by a Buyer Entity as of the date hereof, or (y) actively  developed, marketed or solicited by a Buyer Entity during the twelve (12) month period prior to  the date hereof; and (ii) shall not sell or propose to sell to, or otherwise solicit, whether through  another employee, a producer or otherwise, any other services, including but not limited to      40875129.6  





 






                                                                                 Recordkeeping Services, provided by a Buyer Entity to any Plan Sponsor (clauses (i) and (ii)  collectively, a “Competing Business”); provided, however, that nothing in this paragraph shall  preclude, prohibit or restrict me from engaging, or require me not to engage, in making investments  in Persons engaging in a Competing Business not in excess of two percent (2%) of the outstanding  securities  of such entity. For purposes of this Letter Agreement, (i) “Buyer Entities” means Buyer  and its Subsidiaries and Affiliates (including the Company and its Affiliates and Subsidiaries), and  (ii) “Plan Sponsor” means an employer or other entity that sponsors or maintains non-qualified  deferred compensation plans, qualified defined contribution or defined benefit plans or other  arrangements or programs with respect to which a Buyer Entity provides services as of the date  hereof or has actively solicited during the twelve (12) month period prior to the date hereof.                I acknowledge and agree that during the Restricted Period I shall not directly or indirectly,  (a) solicit for employment or hire any employee who is then a current employee of any Buyer  Entity, or within the six (6)-month period prior to the date hereof, has been an employee, of any  Buyer Entity; (b) (i) hire or solicit for hire any Producer who is then a Producer, or within the  twelve (12) month period prior to the date hereof has been a Producer, or (ii) solicit, encourage,  initiate or participate in discussions or negotiations with, or provide any information to, any present  or future Producer for the purpose of causing the  termination or other alteration of his, her or its  relationship with a Buyer Entity; (c) (i) solicit insurance business from any Person who is then a  policyholder or customer of a Buyer Entity, or within the twelve (12) month period prior to the  date hereof has been a policyholder or customer of a Buyer Entity (or any successor in interest to  any such Person) for the purpose of securing Record Keeping Services or insurance business or  contracts related to the Record Keeping Services or insurance businesses of the Buyer Entities, or  (ii) solicit, encourage, initiate or participate in discussions or negotiations with, or provide any  information to, any present or future policyholder or customer of a Buyer Entity for the purpose  of causing the termination or other alteration of his, her or its relationship with a Buyer Entity; (d)  solicit or attempt to solicit any Competing Business from any Person with whom I and/or  employees managed by me had material contact, and that is, or in the twelve (12) month period  prior to the date hereof was, a customer of a Buyer Entity or with respect to which any Buyer  Entity actively solicits, or has solicited, the sale of products and services offered by the Buyer  Entities; or (e) disparage a Buyer Entity or any of their products, services, or activities or any of  their partners, officers, or employees.  For the purposes of this Letter Agreement, “Producer”  means brokers, broker-dealers, producers, third party administrators or intermediaries or other  Persons who market or sell the services offered by a Buyer Entity, other than employees of the  Buyer Entities.                I acknowledge and agree that, except as otherwise expressly required by Law, I shall not  disclose any Confidential Information (as defined below) to any Person whatsoever.  For purposes  of this Letter Agreement “Confidential Information” means the confidential or proprietary  business information of the Buyer Entities, whether or not marked as such, whether acquired by  the Buyer Entities prior to or after Closing, including any business plans, technology, plans,  blueprints, drawings, models, designs, templates, processes, formulae, computer programs,  customer lists, supplier lists, pricing data, financial data, Trade Secrets or other information  identified or otherwise treated as confidential or proprietary business information; provided,  however, that Confidential Information shall not include any information: (x) that is in the public  domain through no fault of disclosure by me, or (y) that is lawfully acquired by me from source(s)      40875129.6  





 






                                                                                   which are not prohibited from disclosing such information by a legal, contractual or fiduciary   obligation. I acknowledge and agree that the Confidential Information is owned by the Buyer   Entities, is secret, is the subject of reasonable efforts by the Buyer Entities to keep it secret, and   has value because of its secrecy.  If I am compelled to disclose any information by judicial or   administrative process or by other requirements of applicable Law, I shall promptly notify Buyer   in writing, shall disclose only that portion of such information which I am advised by counsel in   writing is legally required to be disclosed, and shall, if requested, use reasonable best efforts to   obtain an appropriate protective order or other reasonable assurance that confidential treatment   will be accorded such information. Notwithstanding the foregoing, nothing in this Agreement   prohibits me from reporting to any governmental authority information concerning possible   violations of law or regulation. I further acknowledge that, at all times, Trade Secrets shall be   subject to the maximum protections available under applicable Law and no less protection than   that provided by this Letter Agreement applicable to “Confidential Information,” as described in   this paragraph. For the purposes of this Letter Agreement, “Trade Secrets” means information that   (i) derives economic value, actual or potential, from not being generally known and not being   readily ascertainable to other persons who can obtain economic value from its disclosure or use   and that is the subject of reasonable efforts by the Buyer Entities to maintain its secrecy or   confidentiality and has value as a result of such secrecy or confidentiality, or (ii) is defined as such   by the New Jersey statutory and common law and by federal law.  Trade Secrets may include either   technical or non-technical data, including, without limitation, information concerning customers   of the Buyer Entities (including customer information, identities, profiles, preferences and   contacts), vendors, suppliers, products, pricing or pricing strategies, personnel assignments and   policies, the legal or financial affairs, or the management of, in each case, the Buyer Entities.                  I acknowledge and agree that in the event I violate any of my obligations under this Letter   Agreement, the Buyer Entities may proceed against me in law or in equity for such damages or   other relief as a court may deem appropriate.  I acknowledge that a violation of any of the   provisions of this Letter Agreement may cause the Buyer Entities irreparable harm which may not   be adequately compensated for by money damages.  I therefore agree that in the event of any actual   or threatened violation of this Letter Agreement, the Buyer Entities shall be entitled, in addition to   other remedies that they may have, to a temporary restraining order and to preliminary and final  injunctive relief against me to prevent any such violations, without the necessity of posting a bond.   If, in any action before any court or other Governmental Authority legally empowered to enforce  this Letter Agreement, any term, restriction, covenant or promise herein is found to be  unreasonable and for that reason unenforceable, then such term, restriction, covenant or promise  shall be deemed modified to the extent necessary to make it enforceable by such court or other  Governmental Authority and any such court or other Governmental Authority shall have authority,  as permitted by applicable Law, to apply reformation or “blue pencil” principles to provide for the  greatest possible duration, geographical territory and business scope to the covenants contained  herein.                I acknowledge and agree that the covenants set forth in this Letter Agreement are  (i) reasonable in all respects, including duration, territory and scope of activity restricted, in light  of the transactions contemplated by this Letter Agreement and the Stock Purchase Agreement;  (ii) an essential element of this Letter Agreement and that, but for these covenants, the parties  would not have entered into the Stock Purchase Agreement; and (iii) necessary to protect the        40875129.6  





 






                                                                                   goodwill of the Buyer Entities and to protect other legitimate business interests of the Buyer   Entities.                  I agree to (a) execute and deliver such other documents and (b) do such other acts and   things, as Buyer may reasonably request for the purpose of carrying out the intent of this Letter  Agreement.                This Letter Agreement may not be amended, supplemented, or otherwise modified except  in a writing signed by the Person against whose interest such change will operate.                All matters relating to or arising out of this Letter Agreement will be governed by and  construed in accordance with the Laws of the State of New Jersey, regardless of the Laws that  might otherwise govern under applicable principles of conflicts of laws thereof.                                                        Very truly yours,                                                  [Robert Paglione]        40875129.6  





 






                                     Exhibit F                Estimated and Final Working Capital Adjustment Examples                        Estimated Working Capital Adjustment      Cash                                                             789           Less: Restricted cash                                      (63)    Net Cash                                                          $          726                                                                                       Accounts receivable                                      1,160                                                                              Less: Accounts receivable > 90 days                (213)                         (1)  Net Accounts receivable                                                       947           (2)  Prepaids                                                                      103                                                                                              (3)(4)  Accounts payable                                                 (2,263)                              (5)  Deferred rent (current portion only)                                          (34)   Deferred income                                                             (157)                                                                                                                                         $           Estimated Working Capital                                        (678)                                                                       Less: Target Working Capital                                                  800                                                                                                                                          $        Estimated Working Capital Adjustment                             (1,478)                                                                                                                                           1) Accounts receivable has been reduced by the balances over 90 days; will be increased by $20,000   for Buyer’s portion of a release payment amount.   2) Prepaids reflect the write off of the custodian fee              3) Accounts payable excludes the following which will be paid off at closing:          Line of Credit, long-term and short-term debt, payable to owners, Phantom Stock          Plan, and Salary Continuation Agreement.                      4) Accounts payable includes the PTO liability and is subject to adjustment to include any litigation   reserve if needed.    5) Deferred rent only reflects the current portion of deferred rent.                                                                                                                                    F-1  40733748.21  





 






   Final Working Capital Adjustment                                                                             Calculated within 120 days after Closing Date (Example Calculation)                                                                              Cash                                                          500            Less: restricted cash                                 (25)             Net cash                                                     $   475                     (1)   Accounts receivable                                     1,225                Less:  Subsequent write-offs                          (50)                Less: Uncollected receivable > 90 days               (250)             Net Accounts receivable                                          975            (2)   Prepaids                                                          90                    (3)   Accounts payable                                               (1,600)                  (4)   Deferred income                                                 (393)               (5)   Deferred rent                                                   (300)                                                                               Final Net Working Capital                                    $   753)                                                                               Less:  Target Working Capital                                $   800                                                                                Final Working Capital Adjustment                             $ (1,603)                                                                               Estimated Working Capital Adjustment                           (1,635)                                                                               Final Adjustment Amount to Buyer / (Seller)                  $    32                                                                              1) Accounts receivable to be reduced by the balances over 90 days; will be increased by $20,000 for  Buyer’s portion of a release payment amount.  2) Prepaids to reflect the write off of the custodian fee  3) Accounts payable to exclude the following which will be paid off at closing:  Line of Credit, long-term and short-term debt, payable to owners, Phantom Stock   Plan, and Salary Continuation Agreement.  4) Accounts payable to include the PTO liability and is subject to adjustment to include any litigation  reserve if needed.  5) Deferred rent only reflects the current portion of deferred rent.                                         F-2  40733748.21  





 






                                       Exhibit G                                  Earn-Out Calculation           To be based on Benchmark Date                                                                                       For the twelve-months ended September 30, 2018                                                                    BCG                                                                              2               Fee Income - Accounts  4010-4217           $     5,715,190                 Less: Commissions – Accounts 5920                              0                Net                                                    5,715,190                                                                    BCS                                                             Commission Income - Accounts 4000-4316               13,599,266                Less: Commissions - Accounts 5090                1,227,310                Less: Commissions - Accounts 5920                     9,431,484                Net                                                    2,940,472                                                                                         Total Net Revenue                          $     8,655,662                                                                                                  2  Note: Accounts information to be included separately and shall not include any accounts converted from Buyer’s  accounts.                                         G-1   40733748.21  





 






                                      EXHIBIT H                                Independent Accountants                                             Crowe Horwath LLP   BDO USA LLP   RSM US LLP     40733748.21