Exhibit 10.1


 


ASSET PURCHASE AGREEMENT


 


between


 


AMERIGEN 7 LLC


 


and


 


CROWN ELECTROKINETICS CORP.


 


dated as of


 


January 3, 2023


 




     


     


    


 


TABLE OF CONTENTS


 


	ARTICLE I DEFINITIONS	1
	 	 
	ARTICLE II PURCHASE AND SALE	9
	Section 2.01 Purchase and Sale of Assets.	9
	Section 2.02 Excluded Assets.	11
	Section 2.03 Assumed Liabilities.	11
	Section 2.04 Excluded Liabilities.	11
	Section 2.05 Purchase Price.	13
	Section 2.06 Allocation of Purchase Price.	13
	Section 2.07 Withholding Tax.	13
	Section 2.08 Third Party Consents.	13
	 	 
	ARTICLE III CLOSING	14
	Section 3.01 Closing.	14
	Section 3.02 Closing Deliverables.	14
	 	 
	ARTICLE IV REPRESENTATIONS AND WARRANTIES OF SELLER	15
	Section 4.01 Organization and Qualification of Seller.	15
	Section 4.02 Authority of Seller.	15
	Section 4.03 No Conflicts; Consents.	16
	Section 4.04 Financial Statements.	16
	Section 4.05 Undisclosed Liabilities.	17
	Section 4.06 Absence of Certain Changes, Events and Conditions.	17
	Section 4.07 Material Contracts.	19
	Section 4.08 Title to Purchased Assets.	20
	Section 4.09 Condition and Sufficiency of Assets.	21
	Section 4.10 Real Property.	21
	Section 4.11 Intellectual Property.	22
	Section 4.12 Inventory.	25
	Section 4.13 Accounts Receivable.	25
	Section 4.14 Customers and Suppliers.	26
	Section 4.15 Insurance.	26
	Section 4.16 Legal Proceedings; Governmental Orders.	27
	Section 4.17 Compliance With Laws; Permits.	27
	Section 4.18 Environmental Matters.	27
	Section 4.19 Employee Benefit Matters.	29
	Section 4.20 Employment Matters.	32
	Section 4.21 Taxes.	34
	Section 4.22 Brokers.	35
	Section 4.23 Full Disclosure.	35



 






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	ARTICLE V REPRESENTATIONS AND WARRANTIES OF BUYER	35
	Section 5.01 Organization of Buyer.	35
	Section 5.02 Authority of Buyer.	35
	Section 5.03 No Conflicts; Consents.	35
	Section 5.04 Brokers.	36
	Section 5.05 Sufficiency of Funds.	36
	Section 5.06 Legal Proceedings.	36
	 	 
	ARTICLE VI COVENANTS	36
	Section 6.01 Conduct of Business Prior to the Closing.	36
	Section 6.02 Access to Information.	37
	Section 6.03 No Solicitation of Other Bids.	37
	Section 6.04 Notice of Certain Events.	38
	Section 6.05 Employees and Employee Benefits.	38
	Section 6.06 Confidentiality.	39
	Section 6.07 Non-Competition; Non-Solicitation.	40
	Section 6.08 Governmental Approvals and Consents.	41
	Section 6.09 Books and Records.	42
	Section 6.10 Closing Conditions	43
	Section 6.11 Public Announcements.	43
	Section 6.12 Bulk Sales Laws.	43
	Section 6.13 Receivables.	43
	Section 6.14 Transfer Taxes.	43
	Section 6.15 Tax Clearance Certificates.	43
	Section 6.16 Further Assurances.	44
	 	 
	ARTICLE VII CONDITIONS TO CLOSING	44
	Section 7.01 Conditions to Obligations of All Parties.	44
	Section 7.02 Conditions to Obligations of Buyer.	44
	Section 7.03 Conditions to Obligations of Seller.	46
	 	 
	ARTICLE VIII INDEMNIFICATION	47
	Section 8.01 Survival.	47
	Section 8.02 Indemnification By Seller.	48
	Section 8.03 Indemnification By Buyer.	48
	Section 8.04 Certain Limitations.	49
	Section 8.05 Indemnification Procedures.	50
	Section 8.06 Payments.	51
	Section 8.07 Tax Treatment of Indemnification Payments.	51
	Section 8.08 Effect of Investigation.	52
	Section 8.09 Exclusive Remedies.	52
	 	 
	ARTICLE IX TERMINATION	52
	Section 9.01 Termination.	52
	Section 9.02 Effect of Termination.	53
	 	 
	ARTICLE X MISCELLANEOUS	53
	Section 10.01 Expenses.	53
	Section 10.02 Notices.	54
	Section 10.03 Interpretation.	54
	Section 10.04 Headings.	54
	Section 10.05 Severability.	54
	Section 10.06 Entire Agreement.	55
	Section 10.07 Successors and Assigns.	55
	Section 10.08 No Third-Party Beneficiaries.	55
	Section 10.09 Amendment and Modification; Waiver.	55
	Section 10.10 Governing Law; Submission to Jurisdiction; Waiver of Jury Trial.	55
	Section 10.11 Specific Performance.	56
	Section 10.12 Counterparts.	56



 




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ASSET PURCHASE AGREEMENT


 


This Asset Purchase
Agreement (this “Agreement”), dated as of January 3, 2023, is entered into between AMERIGEN 7 LLC, a Texas
limited liability company (“Seller”) and CROWN ELECTROKINETICS CORP., a Delaware corporation
(“Buyer”).


 


Recitals


 


WHEREAS, Seller is engaged
in the business of construction of 5G fiber optics infrastructure (the “Business”);


 


WHEREAS, Seller wishes to
sell and assign to Buyer, and Buyer wishes to purchase and assume from Seller, substantially all the assets, and certain specified liabilities,
of the Business, subject to the terms and conditions set forth herein; and


 


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


 


ARTICLE I

Definitions


 


The following terms have the
meanings specified or referred to in this ARTICLE I:


 


“Accounts Receivable”
has the meaning set forth in Section 2.01(b).


 


“Acquisition Proposal”
has the meaning set forth in Section 6.03(a).


 


“Action”
means any claim, action, cause of action, demand, lawsuit, arbitration, inquiry, audit, notice of violation, proceeding, litigation, citation,
summons, subpoena or investigation of any nature, civil, criminal, administrative, regulatory or otherwise, whether at law or in equity.


 


“Affiliate”
of a Person means any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is
under common control with, such Person. The term “control” (including the terms “controlled by” and “under
common control with”) means the possession, directly or indirectly, of the power to direct or cause the direction of the management
and policies of a Person, whether through the ownership of voting securities, by contract or otherwise.


 


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


 


“Allocation Schedule”
has the meaning set forth in Section 2.06.


 


“Ancillary Documents”
means the Bill of Sale, the Assignment and Assumption Agreement, Intellectual Property Assignments, Deeds, Assignment and Assumption of
Leases, the Transition Services Agreement, and the other agreements, instruments and documents required to be delivered at the Closing.


 


“Assigned Contracts”
has the meaning set forth in Section 2.01(d).


 






    1


     


    

 


“Assignment and Assumption
Agreement” has the meaning set forth in Section 3.02(a)(iii).


 


“Assignment and Assumption
of Lease” has the meaning set forth in Section 3.02(a)(vi).


 


“Assumed Liabilities”
has the meaning set forth in Section 2.03.


 


“Audited Financial
Statements” has the meaning set forth in Section 4.04.


 


“Balance Sheet”
has the meaning set forth in Section 4.04.


 


“Balance Sheet Date”
has the meaning set forth in Section 4.04.


 


“Basket”
has the meaning set forth in Section 8.04(a).


 


“Benefit Plan”
has the meaning set forth in Section 4.19(a).


 


“Bill of Sale”
has the meaning set forth in Section 3.02(a)(ii).


 


“Books and Records”
has the meaning set forth in Section 2.01(m).


 


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


 


“Business Day”
means any day except Saturday, Sunday or any other day on which commercial banks located in New York are authorized or required by Law
to be closed for business.


 


“Business IT Systems”
means all Software, computer hardware, servers, networks, platforms, peripherals, and similar or related items of automated, computerized,
or other information technology (IT) networks and systems (including telecommunications networks and systems for voice, data, and video)
owned, leased, licensed, or used (including through cloud-based or other third-party service providers) in the conduct of the Business.


 


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


 


“Buyer Closing Certificate”
has the meaning set forth in Section 7.03(g).


 


“Buyer Indemnitees”
has the meaning set forth in Section 8.02.


 


“Buyer’s Accountants”
means Marcum LLP.


 


“Cap” has
the meaning set forth in Section 8.04(a).


 


“CERCLA”
means the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended by the Superfund Amendments and Reauthorization
Act of 1986, 42 U.S.C. §§ 9601 et seq. What is this and is it needed?


 


“Closing”
has the meaning set forth in Section 3.01.


 






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“Closing Date”
has the meaning set forth in Section 3.01.


 


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


 


“Contracts”
means all contracts, leases, deeds, mortgages, licenses, instruments, notes, commitments, undertakings, indentures, joint ventures and
all other agreements, commitments and legally binding arrangements, whether written or oral.


 


“Current Assets”
means the current assets of the Business included in the line items set forth on Section 2.06(a)(i)
of the Disclosure Schedules and only to the extent acquired pursuant to the terms of this Agreement.


 


“Current Liabilities”
means the current liabilities of the Business included in the line items set forth on Section
2.06(a)(i) of the Disclosure Schedules and only to the extent assumed pursuant to the terms of this Agreement.


 


“Deed”
has the meaning set forth in Section 3.02(a)(v).


 


“Direct Claim”
has the meaning set forth in Section 8.05(c).


 


“Disclosure Schedules”
means the Disclosure Schedules delivered by Seller and Buyer concurrently with the execution and delivery of this Agreement.


 


“Dollars”
or “$” means the lawful currency of the United States.


 


“Encumbrance”
means any charge, claim, community property interest, pledge, condition, equitable interest, lien (statutory or other), option, security
interest, mortgage, easement, encroachment, right of way, right of first refusal, or restriction of any kind, including any restriction
on use, voting, transfer, receipt of income or exercise of any other attribute of ownership.


 


“Environmental Attributes”
means any emissions and renewable energy credits, energy conservation credits, benefits, offsets and allowances, emission reduction credits
or words of similar import or regulatory effect (including emissions reduction credits or allowances under all applicable emission trading,
compliance or budget programs, or any other federal, state or regional emission, renewable energy or energy conservation trading or budget
program) that have been held, allocated to or acquired for the development, construction, ownership, lease, operation, use or maintenance
of the Business or the Purchased Assets or as of: (a) the date of this Agreement; and (b) future years for which allocations have been
established and are in effect as of the date of this Agreement.


 


“Environmental Claim”
means any Action, Governmental Order, lien, fine, penalty, or, as to each, any settlement or judgment arising therefrom, by or from any
Person alleging liability of whatever kind or nature (including liability or responsibility for the costs of enforcement proceedings,
investigations, cleanup, governmental response, removal or remediation, natural resources damages, property damages, personal injuries,
medical monitoring, penalties, contribution, indemnification and injunctive relief) arising out of, based on or resulting from: (a) the
presence of, Release of, or exposure to, any Hazardous Materials; or (b) any actual or alleged non-compliance with any Environmental Law
or term or condition of any Environmental Permit.


 






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“Environmental Law”
means any applicable Law, and any Governmental Order or binding agreement with any Governmental Authority: (a) relating to pollution (or
the cleanup thereof) or the protection of natural resources, endangered or threatened species, human health or safety, or the environment
(including ambient or indoor air, soil, surface water or groundwater, or subsurface strata); or (b) concerning the presence of, exposure
to, or the management, manufacture, use, containment, storage, recycling, reclamation, reuse, treatment, generation, discharge, transportation,
processing, production, disposal or remediation of any Hazardous Materials. The term “Environmental Law” includes, without
limitation, the following (including their implementing regulations and any state analogs): the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended by the Superfund Amendments and Reauthorization Act of 1986, 42 U.S.C. §§
9601 et seq.; the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act of 1976, as amended by the Hazardous
and Solid Waste Amendments of 1984, 42 U.S.C. §§ 6901 et seq.; the Federal Water Pollution Control Act of 1972, as amended by
the Clean Water Act of 1977, 33 U.S.C. §§ 1251 et seq.; the Toxic Substances Control Act of 1976, as amended, 15 U.S.C. §§
2601 et seq.; the Emergency Planning and Community Right-to-Know Act of 1986, 42 U.S.C. §§ 11001 et seq.; the Clean Air Act
of 1966, as amended by the Clean Air Act Amendments of 1990, 42 U.S.C. §§ 7401 et seq.; the Federal Insecticide, Fungicide and
Rodenticide Act of 1910, as amended, 7 U.S.C. §§ 136 et seq.; the Oil Pollution Act of 1990, as amended, 33 U.S.C. §§
2701 et seq.; and the Occupational Safety and Health Act of 1970, as amended, 29 U.S.C. §§ 651 et seq.


 


“Environmental Notice”
means any written directive, notice of violation or infraction, or notice respecting any Environmental Claim relating to actual or alleged
non-compliance with any Environmental Law or any term or condition of any Environmental Permit.


 


“Environmental Permit”
means any Permit, letter, clearance, consent, waiver, closure, exemption, decision or other action required under or issued, granted,
given, authorized by or made pursuant to Environmental Law.


 


“Environmental Professional”
means an individual licensed by a Governmental Authority to act on behalf of such Governmental Authority to oversee environmental site
investigation and remediation.


 


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


 


“ERISA Affiliate”
means all employers (whether or not incorporated) that would be treated together with the Seller or any of its Affiliates as a “single
employer” within the meaning of Section 414 of the Code or Section 4001 of ERISA.


 


“Excluded Assets”
has the meaning set forth in Section 2.02.


 


“Excluded Contracts”
has the meaning set forth in Section 2.02(a).


 


“Excluded Liabilities”
has the meaning set forth in Section 2.04.


 






    4


     


    

 


“Financial Statements”
has the meaning set forth in Section 4.04.


 


“FIRPTA Certificate”
has the meaning set forth in Section 7.02(m).


 


“GAAP”
means United States generally accepted accounting principles in effect from time to time.


 


“Government Contracts”
has the meaning set forth in Section 4.07(a)(viii)


 


“Governmental Authority”
means any federal, state, local or foreign government or political subdivision thereof, or any agency or instrumentality of such government
or political subdivision, or any self-regulated organization or other non-governmental regulatory authority or quasi-governmental authority
, including Environmental Professionals (to the extent that the rules, regulations or orders of such organization or authority have the
force of Law), or any arbitrator, court or tribunal of competent jurisdiction.


 


“Governmental Order”
means any order, writ, judgment, injunction, decree, stipulation, determination or award entered by or with any Governmental Authority.


 


“Hazardous Materials”
means: (a) any material, substance, chemical, waste, product, derivative, compound, mixture, solid, liquid, mineral or gas, in each case,
whether naturally occurring or manmade, that is hazardous, acutely hazardous, toxic, or words of similar import or regulatory effect under
Environmental Laws; and (b) any petroleum or petroleum-derived products, radon, radioactive materials or wastes, asbestos in any form,
lead or lead-containing materials, urea formaldehyde foam insulation and polychlorinated biphenyls and per- and poly-fluoroalkyl substances
(PFAS) and other emerging contaminants.


 


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


 


“Indemnified Party”
has the meaning set forth in Section 8.05.


 


“Indemnifying Party”
has the meaning set forth in Section 8.05.


 


“Insurance Policies”
has the meaning set forth in Section 4.15.


 


“Intellectual Property”
means any and all rights in, arising out of, or associated with any of the following in any jurisdiction throughout the world: (a) issued
patents and patent applications (whether provisional or non-provisional), including divisionals, continuations, continuations-in-part,
substitutions, reissues, reexaminations, extensions, or restorations of any of the foregoing, and other Governmental Authority-issued
indicia of invention ownership (including certificates of invention, petty patents, and patent utility models) (“Patents”);
(b) trademarks, service marks, brands, certification marks, logos, trade dress, trade names, and other similar indicia of source or origin,
together with the goodwill connected with the use of and symbolized by, and all registrations, applications for registration, and renewals
of, any of the foregoing (“Trademarks”); (c) copyrights and works of authorship, whether or not copyrightable, and
all registrations, applications for registration, and renewals of any of the foregoing (“Copyrights”); (d) internet
domain names and social media account or user names (including “handles”), whether or not Trademarks, all associated web addresses,
URLs, websites and web pages, social media sites and pages, and all content and data thereon or relating thereto, whether or not Copyrights;
(e) mask works, and all registrations, applications for registration, and renewals thereof; (f) industrial designs, and all Patents, registrations,
applications for registration, and renewals thereof; (g) trade secrets, know-how, inventions (whether or not patentable), discoveries,
improvements, technology, business and technical information, databases, data compilations and collections, tools, methods, processes,
techniques, and other confidential and proprietary information and all rights therein (“Trade Secrets”); (h) computer
programs, operating systems, applications, firmware and other code, including all source code, object code, application programming interfaces,
data files, databases, protocols, specifications, and other documentation thereof (“Software”); (i) rights of publicity;
and (j) all other intellectual or industrial property and proprietary rights.


 






    5


     


    

 


“Intellectual Property
Agreements” means all licenses, sublicenses, consent to use agreements, settlements, coexistence agreements, covenants not to
sue, waivers, releases, permissions and other Contracts, whether written or oral, relating to any Intellectual Property that is used or
held for use in the conduct of the Business as currently conducted or proposed to be conducted to which Seller is a party, beneficiary
or otherwise bound.


 


“Intellectual Property
Assets” means all Intellectual Property that is owned by Seller and used or held for use in the conduct of the Business as currently
conducted or proposed to be conducted, together with all (i) royalties, fees, income, payments, and other proceeds now or hereafter due
or payable to Seller with respect to such Intellectual Property; and (ii) claims and causes of action with respect to such Intellectual
Property, whether accruing before, on, or after the date hereof/accruing on or after the date hereof, including all rights to and claims
for damages, restitution, and injunctive and other legal or equitable relief for past, present, or future infringement, misappropriation,
or other violation thereof.


 


“Intellectual Property
Assignments” has the meaning set forth in Section 3.02(a)(iv).


 


“Intellectual Property
Registrations” means all Intellectual Property Assets that are subject to any issuance, registration, or application by or with
any Governmental Authority or authorized private registrar in any jurisdiction, including issued Patents, registered Trademarks, domain
names and Copyrights, and pending applications for any of the foregoing.


 


“Interim Balance
Sheet” has the meaning set forth in Section 4.04.


 


“Interim Balance
Sheet Date” has the meaning set forth in Section 4.04.


 


“Interim Financial
Statements” has the meaning set forth in Section 4.04.


 


“Inventory”
has the meaning set forth in Section 2.01(c).


 


“Knowledge of Seller
or Seller’s Knowledge” or any other similar knowledge qualification, means the actual or constructive knowledge of any
director or officer of Seller, after due inquiry.


 






    6


     


    

 


“Law” means
any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, other requirement or rule
of law of any Governmental Authority.


 


“Leased Real Property”
has the meaning set forth in Section 4.10(b).


 


“Leases”
has the meaning set forth in Section 4.10(b).


 


“Liabilities”
means liabilities, obligations or commitments of any nature whatsoever, asserted or unasserted, known or unknown, absolute or contingent,
accrued or unaccrued, matured or unmatured or otherwise.


 


“Licensed Intellectual
Property” means all Intellectual Property in which Seller holds any rights or interests granted by other Persons, including
any of Seller’s Affiliates, that is used or held for use in the conduct of the Business as currently conducted or proposed to be
conducted.


 


“Losses”
means losses, damages, liabilities, deficiencies, Actions, judgments, interest, awards, penalties, fines, costs or expenses of whatever
kind, including reasonable attorneys’ fees and the cost of enforcing any right to indemnification hereunder and the cost of pursuing
any insurance providers; provided, however, that “Losses” shall not include punitive damages, except to the extent
actually awarded to a Governmental Authority or other third party.


 


“Material Adverse
Effect” means any event, occurrence, fact, condition or change that is, or could reasonably be expected to become, individually
or in the aggregate, materially adverse to (a) the business, results of operations, condition (financial or otherwise) or assets of the
Business, (b) the value of the Purchased Assets, or (c) the ability of Seller to consummate the transactions contemplated hereby on a
timely basis; provided, however, that “Material Adverse Effect” shall not include any event, occurrence, fact, condition
or change, directly or indirectly, arising out of or attributable to: (i) general economic or political conditions; (ii) conditions generally
affecting the industries in which the Business operates; (iii) any changes in financial or securities markets in general; (iv) acts of
war (whether or not declared), armed hostilities or terrorism, or the escalation or worsening thereof; (v) any action required or permitted
by this Agreement, except pursuant to Section 4.03 and Section
6.08; (vi) any changes in applicable Laws or accounting rules, including GAAP; or (vii) the public announcement, pendency or completion
of the transactions contemplated by this Agreement; provided further, however, that any event, occurrence, fact, condition or change
referred to in clauses (i) through (iv) immediately above shall be taken into account in determining whether a Material Adverse Effect
has occurred or could reasonably be expected to occur to the extent that such event, occurrence, fact, condition or change has a disproportionate
effect on the Business compared to other participants in the industries in which the Business operates (in which case, only the incremental
disproportionate adverse effect may be taken into account in determining whether a Material Adverse Effect has occurred).


 


“Material Contracts”
has the meaning set forth in Section 4.07(a).


 


“Material Customers”
has the meaning set forth in Section 4.14(a).


 


“Material Suppliers”
has the meaning set forth in Section 4.14(b).


 


“Multiemployer Plan”
has the meaning set forth in Section 4.19(c).


 






    7


     


    

 


“Non-U.S. Benefit
Plan” has the meaning set forth in Section 4.19(a).


 


“Owned Real Property”
has the meaning set forth in Section 4.10(a).


 


“Permits”
means all permits, licenses, franchises, approvals, authorizations, registrations, certificates, variances and similar rights obtained,
or required to be obtained, from Governmental Authorities.


 


“Permitted Encumbrances”
has the meaning set forth in Section 4.08(a).


 


“Person”
means an individual, corporation, partnership, joint venture, limited liability company, Governmental Authority, unincorporated organization,
trust, association or other entity.


 


“Platform Agreements”
has the meaning set forth in Section 4.11(h).


 


“Post-Closing Tax
Period” means any taxable period beginning after the Closing Date and, with respect to any taxable period beginning before and
ending after the Closing Date, the portion of such taxable period beginning after the Closing Date.


 


“Pre-Closing Tax
Period” means any taxable period ending on or before the Closing Date and, with respect to any taxable period beginning before
and ending after the Closing Date, the portion of such taxable period ending on and including the Closing Date.


 


“Purchase Price”
has the meaning set forth in Section 2.05.


 


“Purchased Assets”
has the meaning set forth in Section 2.01.


 


“Qualified Benefit
Plan” has the meaning set forth in Section 4.19(c). NA


 


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


 


“Release”
means any actual or threatened release, spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching,
dumping, abandonment, disposing or allowing to escape or migrate into or through the environment (including, without limitation, ambient
or indoor air, surface water, groundwater, land surface or subsurface strata or within any building, structure, facility or fixture).


 


“Representative”
means, with respect to any Person, any and all directors, officers, employees, consultants, financial advisors, counsel, accountants and
other agents of such Person.


 


“Restricted Business”
means Construction of the 5G Fiber Optics Infrastructure.


 


“Restricted Period”
has the meaning set forth in Section 6.07(a).


 


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


 


“Seller Closing Certificate”
has the meaning set forth in Section 7.02(j).


 






    8


     


    

 


“Seller Indemnitees”
has the meaning set forth in Section 8.03.


 


“Seller’s Accountants”
means Knueven, Schroeder & Co..


 


“Single Employer
Plan” has the meaning set forth in Section 4.19(c).


 


“Tangible Personal
Property” has the meaning set forth in Section 2.01(f).


 


“Taxes”
means all federal, state, local, foreign and other income, gross receipts, sales, use, production, ad valorem, transfer, documentary,
franchise, registration, profits, license, lease, service, service use, withholding, payroll, employment, unemployment, estimated, excise,
severance, environmental, stamp, occupation, premium, property (real or personal), real property gains, windfall profits, customs, duties
or other taxes, fees, assessments or charges of any kind whatsoever, together with any interest, additions or penalties with respect thereto
and any interest in respect of such additions or penalties.


 


“Tax Return”
means any return, declaration, report, claim for refund, information return or statement or other document relating to Taxes, including
any schedule or attachment thereto, and including any amendment thereof.


 


“Territory”
means Wisconsin, Michigan, Indiana, Ohio, Pennsylvania and Texas.


 


“Third-Party Claim”
has the meaning set forth in Section 8.05(a).


 


“Transition Services
Agreement” has the meaning set forth in Section 3.02(a)(vii).


 


“Union”
has the meaning set forth in Section 4.20(b).


 


“WARN Act”
means the federal Worker Adjustment and Retraining Notification Act of 1988, and similar state, local and foreign laws related to plant
closings, relocations, mass layoffs and employment losses.


 


ARTICLE II

Purchase and Sale


 


Section
2.01 Purchase and Sale of Assets. Subject to the terms and conditions set forth herein, at the Closing, Seller shall sell,
assign, transfer, convey and deliver to Buyer, and Buyer shall purchase from Seller, free and clear of any Encumbrances other than Permitted
Encumbrances, all of Seller’s right, title and interest in, to and under all of the assets, properties and rights of every kind
and nature, whether real, personal or mixed, tangible or intangible (including goodwill), wherever located and whether now existing or
hereafter acquired (other than the Excluded Assets), which relate to, or are used or held for use in connection with, the Business (collectively,
the “Purchased Assets”), including, without limitation, the following:


 


(a) cash
and cash equivalents;


 


(b) all
accounts or notes receivable held by Seller, and any security, claim, remedy or other right related to any of the foregoing (“Accounts
Receivable”);


 






    9


     


    

 


(c) all
inventory, finished goods, raw materials, work in progress, packaging, supplies, parts and other inventories (“Inventory”);


 


(d) all
Contracts, including Intellectual Property Agreements, set forth on Section 2.01(d) of
the Disclosure Schedules (the “Assigned Contracts”);


 


(e) all
Intellectual Property Assets;


 


(f) all
furniture, fixtures, equipment, machinery, tools, vehicles, office equipment, supplies, computers, telephones and other tangible personal
property (the “Tangible Personal Property”);


 


(g) all
Owned Real Property and Leased Real Property;


 


(h) all
Permits, including Environmental Permits, which are held by Seller and required for the conduct of the Business as currently conducted
or for the ownership and use of the Purchased Assets, including, without limitation, those listed on Section
4.17(b) and Section 1.01(a) of the Disclosure Schedules;


 


(i) all
rights to any Actions of any nature available to or being pursued by Seller to the extent related to the Business, the Purchased Assets
or the Assumed Liabilities, whether arising by way of counterclaim or otherwise;


 


(j) all
prepaid expenses, credits, advance payments, claims, security, refunds, rights of recovery, rights of set-off, rights of recoupment, deposits,
charges, sums and fees (including any such item relating to the payment of Taxes);


 


(k) all
of Seller’s rights under warranties, indemnities and all similar rights against third parties to the extent related to any Purchased
Assets;


 


(l) all
insurance benefits, including rights and proceeds, arising from or relating to the Business, the Purchased Assets or the Assumed Liabilities;


 


(m) originals,
or where not available, copies, of all books and records, including, but not limited to, books of account, ledgers and general, financial
and accounting records, machinery and equipment maintenance files, customer lists, customer purchasing histories, price lists, distribution
lists, supplier lists, production data, quality control records and procedures, customer complaints and inquiry files, research and development
files, records and data (including all correspondence with any Governmental Authority), sales material and records (including pricing
history, total sales, terms and conditions of sale, sales and pricing policies and practices), strategic plans, internal financial statements,
marketing and promotional surveys, material and research and files relating to the Intellectual Property Assets and the Intellectual Property
Agreements (“Books and Records”); and


 


(n) all
goodwill and the going concern value of the Business.


 






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Section
2.02 Excluded Assets. Notwithstanding the foregoing, the Purchased Assets shall not include the following assets (collectively,
the “Excluded Assets”):


 


(a) Contracts,
including Intellectual Property Agreements, that are not Assigned Contracts (the “Excluded Contracts”);


 


(b) the
corporate seals, organizational documents, minute books, stock books, Tax Returns, books of account or other records having to do with
the corporate organization of Seller;


 


(c) all
Benefit Plans and assets attributable thereto;


 


(d) the
assets, properties and rights specifically set forth on Section 2.02(d) of the Disclosure
Schedules; and


 


(e) the
rights which accrue or will accrue to Seller under this Agreement and the Ancillary Documents.


 


Section
2.03 Assumed Liabilities. Subject to the terms and conditions set forth herein, Buyer shall assume and agree to pay, perform
and discharge only the following Liabilities of Seller (collectively, the “Assumed Liabilities”), and no other Liabilities:


 


(a) all
trade accounts payable of Seller to third parties in connection with the Business that remain unpaid and are not delinquent as of the
Closing Date and that either are reflected on the Interim Balance Sheet Date or arose in the ordinary course of business consistent with
past practice since the Interim Balance Sheet Date;


 


(b) all
Liabilities in respect of the Assigned Contracts but only to the extent that such Liabilities thereunder are required to be performed
after the Closing Date, were incurred in the ordinary course of business and do not relate to any failure to perform, improper performance,
warranty or other breach, default or violation by Seller on or prior to the Closing;


 


(c) lease
payments totaling $47,823.38 for that certain 2020 Ford F250 with VIN: 1FT8W2BT7LED99940; and


 


(d) those
Liabilities of Seller set forth on Section 2.03(c) of the Disclosure Schedules;


 


Section
2.04 Excluded Liabilities. Notwithstanding the provisions of Section 2.03
or any other provision in this Agreement to the contrary, Buyer shall not assume and shall not be responsible to pay, perform or discharge
any Liabilities of Seller or any of its Affiliates of any kind or nature whatsoever other than the Assumed Liabilities (the “Excluded
Liabilities”). Seller shall, and shall cause each of its Affiliates to, pay and satisfy in due course all Excluded Liabilities
which they are obligated to pay and satisfy. Without limiting the generality of the foregoing, the Excluded Liabilities shall include,
but not be limited to, the following:


 


(a) any
Liabilities of Seller arising or incurred in connection with the negotiation, preparation, investigation and performance of this Agreement,
the Ancillary Documents and the transactions contemplated hereby and thereby, including, without limitation, fees and expenses of counsel,
accountants, consultants, advisers and others;


 






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(b) any
Liability for (i) Taxes of Seller (or any stockholder or Affiliate of Seller) or relating to the Business, the Purchased Assets or the
Assumed Liabilities for any Pre-Closing Tax Period; (ii) Taxes that arise out of the consummation of the transactions contemplated hereby
or that are the responsibility of Seller pursuant to Section 6.14; or (iii) other Taxes
of Seller (or any stockholder or Affiliate of Seller) of any kind or description (including any Liability for Taxes of Seller (or any
stockholder or Affiliate of Seller) that becomes a Liability of Buyer under any common law doctrine of de facto merger or transferee or
successor liability or otherwise by operation of contract or Law);


 


(c) any
Liabilities relating to or arising out of the Excluded Assets;


 


(d) any
Liabilities in respect of any pending or threatened Action arising out of, relating to or otherwise in respect of the operation of the
Business or the Purchased Assets to the extent such Action relates to such operation on or prior to the Closing Date;


 


(e) any
product Liability or similar claim for injury to a Person or property which arises out of or is based upon any express or implied representation,
warranty, agreement or guaranty made by Seller, or by reason of the improper performance or malfunctioning of a product, improper design
or manufacture, failure to adequately package, label or warn of hazards or other related product defects of any products at any time manufactured
or sold or any service performed by Seller;


 


(f) any
recall, design defect or similar claims of any products manufactured or sold or any service performed by Seller;


 


(g) any
Liabilities of Seller arising under or in connection with any Benefit Plan providing benefits to any present or former employee of Seller;


 


(h) any
Liabilities of Seller for any present or former employees, officers, directors, retirees, independent contractors or consultants of Seller,
including, without limitation, any Liabilities associated with any claims for wages or other benefits, bonuses, accrued vacation, workers’
compensation, severance, retention, termination or other payments;


 


(i) any
Environmental Claims, or Liabilities under Environmental Laws, to the extent arising out of or relating to facts, circumstances or conditions
existing on or prior to the Closing or otherwise to the extent arising out of any actions or omissions of Seller;


 


(j) any
trade accounts payable of Seller (i) to the extent not accounted for on the Interim Balance Sheet; (ii) which constitute intercompany
payables owing to Affiliates of Seller; (iii) which constitute debt, loans or credit facilities to financial institutions; or (iv) which
did not arise in the ordinary course of business;


 


(k) any
Liabilities of the Business relating or arising from unfulfilled commitments, quotations, purchase orders, customer orders or work orders
that (i) do not constitute part of the Purchased Assets issued by the Business’ customers to Seller on or before the Closing; (ii)
did not arise in the ordinary course of business; or (iii) are not validly and effectively assigned to Buyer pursuant to this Agreement;


 






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(l) any
Liabilities to indemnify, reimburse or advance amounts to any present or former officer, director, employee or agent of Seller (including
with respect to any breach of fiduciary obligations by same), except for indemnification of same pursuant to Section
8.03 as Seller Indemnitees;


 


(m) any
Liabilities under the Excluded Contracts or any other Contracts, including Intellectual Property Agreements, (i) which are not validly
and effectively assigned to Buyer pursuant to this Agreement; (ii) which do not conform to the representations and warranties with respect
thereto contained in this Agreement; or (iii) to the extent such Liabilities arise out of or relate to a breach by Seller of such Contracts
prior to Closing;


 


(n) any
Liabilities associated with debt, loans or credit facilities of Seller and/or the Business owing to financial institutions; and


 


(o) any
Liabilities arising out of, in respect of or in connection with the failure by Seller or any of its Affiliates to comply with any Law
or Governmental Order.


 


Section
2.05 Purchase Price. The
aggregate purchase price for the Purchased Assets shall be $645,000 (the “Purchase Price”), plus the assumption of
the Assumed Liabilities. The Purchase Price shall be paid as provided in Section 3.02.


 


Section
2.06 Allocation of Purchase Price. Seller and Buyer agree that the Purchase Price and the Assumed Liabilities (plus other
relevant items) shall be allocated among the Purchased Assets for all purposes (including Tax and financial accounting) as shown on the
allocation schedule (the “Allocation Schedule”). A draft of the Allocation Schedule shall be prepared by Buyer and
delivered to Seller within 45 days following the Closing Date.


 


Section
2.07 Withholding Tax. Buyer shall be entitled to deduct and withhold from the Purchase Price all Taxes that Buyer may be
required to deduct and withhold under any provision of Tax Law. All such withheld amounts shall be treated as delivered to Seller hereunder.


 


Section
2.08 Third Party Consents. To the extent that Seller’s rights under any Contract or Permit constituting a Purchased
Asset, or any other Purchased Asset, may not be assigned to Buyer without the consent of another Person which has not been obtained, this
Agreement shall not constitute an agreement to assign the same if an attempted assignment would constitute a breach thereof or be unlawful,
and Seller, at its expense, shall use its reasonable best efforts to obtain any such required consent(s) as promptly as possible. If any
such consent shall not be obtained or if any attempted assignment would be ineffective or would impair Buyer’s rights under the
Purchased Asset in question so that Buyer would not in effect acquire the benefit of all such rights, Seller, to the maximum extent permitted
by law and the Purchased Asset, shall act after the Closing as Buyer’s agent in order to obtain for it the benefits thereunder and
shall cooperate, to the maximum extent permitted by Law and the Purchased Asset, with Buyer in any other reasonable arrangement designed
to provide such benefits to Buyer. Notwithstanding any provision in this Section 2.08
to the contrary, Buyer shall not be deemed to have waived its rights under Section 7.02(d)
hereof unless and until Buyer either provides written waivers thereof or elects to proceed to consummate the transactions contemplated
by this Agreement at Closing.


 






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ARTICLE III

Closing


 


Section
3.01 Closing. Subject to the terms and conditions of this Agreement, the consummation of the transactions contemplated by
this Agreement (the “Closing”) shall take place at the offices of Pryor Cashman LLP, 7 Times Square, New York, New
York 10036 or remotely by exchange of documents and signatures (or their electronic counterparts), at TIME, Eastern standard time, on
the Business Day after all of the conditions to Closing set forth in ARTICLE VII are
either satisfied or waived (other than conditions which, by their nature, are to be satisfied on the Closing Date), or at such other time,
date or place as Seller and Buyer may mutually agree upon in writing. The date on which the Closing is to occur is herein referred to
as the “Closing Date”.


 


Section
3.02 Closing Deliverables. 


 


(a) At
the Closing, Seller shall deliver to Buyer the following:


 


(i) a
bill of sale in the form of Exhibit B hereto/in form and substance satisfactory to Buyer (the “Bill of Sale”) and duly
executed by Seller, transferring the tangible personal property included in the Purchased Assets to Buyer;


 


(ii) an
assignment and assumption agreement in the form of Exhibit C hereto/in form and substance satisfactory to Buyer (the “Assignment
and Assumption Agreement”) and duly executed by Seller, effecting the assignment to and assumption by Buyer of the Purchased
Assets and the Assumed Liabilities;


 


(iii) an
assignment in the form of Exhibit D hereto/in form and substance satisfactory to Buyer (the “Intellectual Property Assignments”)
and duly executed by Seller, transferring all of Seller’s right, title and interest in and to the Intellectual Property Assets to
Buyer;


 


(iv) with
respect to each parcel of Owned Real Property, a general warranty deed in form and substance satisfactory to Buyer (each, a “Deed”)
and duly executed and notarized by Seller;


 


(v) with
respect to each Lease, an Assignment and Assumption of Lease in form and substance satisfactory to Buyer (each, an “Assignment
and Assumption of Lease”) and duly executed by Seller;


 


(vi) the
Transition Services Agreement in the form of Exhibit F hereto/in form and substance satisfactory to Buyer (the “Transition Services
Agreement”) and duly executed by Seller;


 


(vii) a
power of attorney in the form of Exhibit G hereto/in form and substance satisfactory to Buyer and duly executed by Seller;


 


(viii) the
Seller Closing Certificate;


 






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(ix) the
FIRPTA Certificate;


 


(x) the
certificates of the Secretary or Assistant Secretary of Seller required by Section 7.02(k)
and Section 7.02(l);


 


(xi) such
other customary instruments of transfer, assumption, filings or documents, in form and substance reasonably satisfactory to Buyer, as
may be required to give effect to this Agreement; and


 


(xii)
OTHER SELLER DELIVERABLES.


 


(b) At
the Closing, Buyer shall deliver to Seller the following:


 


(i) the
Purchase Price;


 


(ii) the
Assignment and Assumption Agreement duly executed by Buyer;


 


(iii) with
respect to each Lease, an Assignment and Assumption of Lease duly executed by Buyer;


 


(iv) the
Transition Services Agreement duly executed by Buyer;


 


(v) the
Buyer Closing Certificate;


 


(vi) the
certificates of the Secretary or Assistant Secretary of Buyer required by Section 7.03(h)
and Section 7.03(i).


 


ARTICLE IV

Representations and warranties of seller


 


Except as set forth in the
correspondingly numbered Section of the Disclosure Schedules, Seller represents and warrants to Buyer that the statements contained in
this ARTICLE IV are true and correct as of the date hereof.


 


Section
4.01 Organization and Qualification of Seller. Seller is a corporation duly organized, validly existing and in good standing
under the Laws of the State of Texas and has full corporate power and authority to own, operate or lease the properties and assets now
owned, operated or leased by it and to carry on the Business as currently conducted. Section 4.01 of the Disclosure Schedules sets forth
each jurisdiction in which Seller is licensed or qualified to do business, and Seller is duly licensed or qualified to do business and
is in good standing in each jurisdiction in which the ownership of the Purchased Assets or the operation of the Business as currently
conducted makes such licensing or qualification necessary.


 


Section
4.02 Authority of Seller. Seller has full corporate power and authority to enter into this Agreement and the Ancillary Documents
to which Seller is a party, to carry out its obligations hereunder and thereunder and to consummate the transactions contemplated hereby
and thereby. The execution and delivery by Seller of this Agreement and any Ancillary Document to which Seller is a party, the performance
by Seller of its obligations hereunder and thereunder and the consummation by Seller of the transactions contemplated hereby and thereby
have been duly authorized by all requisite corporate action on the part of Seller. This Agreement has been duly executed and delivered
by Seller, and (assuming due authorization, execution and delivery by Buyer) this Agreement constitutes a legal, valid and binding obligation
of Seller enforceable against Seller in accordance with its terms. When each Ancillary Document to which Seller is or will be a party
has been duly executed and delivered by Seller (assuming due authorization, execution and delivery by each other party thereto), such
Ancillary Document will constitute a legal and binding obligation of Seller enforceable against it in accordance with its terms.


 






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Section
4.03 No Conflicts; Consents. The execution, delivery and performance by Seller of this Agreement and the Ancillary Documents
to which it is a party, and the consummation of the transactions contemplated hereby and thereby, do not and will not: (a) conflict with
or result in a violation or breach of, or default under, any provision of the certificate of incorporation, by-laws or other organizational
documents of Seller; (b) conflict with or result in a violation or breach of any provision of any Law or Governmental Order applicable
to Seller, the Business or the Purchased Assets; (c) except as set forth in Section 4.03 of the Disclosure Schedules, require the consent,
notice or other action by any Person under, conflict with, result in a violation or breach of, constitute a default or an event that,
with or without notice or lapse of time or both, would constitute a default under, result in the acceleration of or create in any party
the right to accelerate, terminate, modify or cancel any Contract or Permit to which Seller is a party or by which Seller or the Business
is bound or to which any of the Purchased Assets are subject (including any Assigned Contract); or (d) result in the creation or imposition
of any Encumbrance other than Permitted Encumbrances on the Purchased Assets. No consent, approval, Permit, Governmental Order, declaration
or filing with, or notice to, any Governmental Authority is required by or with respect to Seller in connection with the execution and
delivery of this Agreement or any of the Ancillary Documents and the consummation of the transactions contemplated hereby and thereby,
except for such filings as may be required under the HSR Act.


 


Section
4.04 Financial Statements. Complete copies of the audited financial statements consisting of the balance sheet of the Business
as at December 31 in each of the years 2021 and 2020 and the related statements of income and retained earnings, stockholders’ equity
and cash flow for the years then ended (the “Audited Financial Statements”), and unaudited financial statements consisting
of the balance sheet of the Business as at September 30, 2021 and the related statements of income and retained earnings, stockholders’
equity and cash flow for the nine- month period then ended (the “Interim Financial Statements” and together with the
Audited Financial Statements, the “Financial Statements”) are included in the Disclosure Schedules/have been delivered
to Buyer. The Financial Statements have been prepared in accordance with GAAP applied on a consistent basis throughout the period involved,
subject, in the case of the Interim Financial Statements, to normal and recurring year-end adjustments (the effect of which will not be
materially adverse) and the absence of notes (that, if presented, would not differ materially from those presented in the Audited Financial
Statements). The Financial Statements are based on the books and records of the Business, and fairly present in all material respects
the financial condition of the Business as of the respective dates they were prepared and the results of the operations of the Business
for the periods indicated. The balance sheet of the Business as of December 31, 2021 is referred to herein as the “Balance Sheet”
and the date thereof as the “Balance Sheet Date” and the balance sheet of the Business as of September 30, 2022 is
referred to herein as the “Interim Balance Sheet” and the date thereof as the “Interim Balance Sheet Date”.
Seller maintains a standard system of accounting for the Business established and administered in accordance with GAAP.


 






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Section
4.05 Undisclosed Liabilities. Seller has no Liabilities with respect to the Business, except (a) those which are adequately
reflected or reserved against in the Balance Sheet as of the Balance Sheet Date, and (b) those which have been incurred in the ordinary
course of business consistent with past practice since the Balance Sheet Date and which are not, individually or in the aggregate, material
in amount.


 


Section
4.06 Absence of Certain Changes, Events and Conditions. Since the Balance Sheet Date, the Business has been conducted in
the ordinary course of business consistent with past practice, and there has not been any:


 


(a) event,
occurrence or development that has had, or could reasonably be expected to have, individually or in the aggregate, a Material Adverse
Effect;


 


(b) declaration
or payment of any dividends or distributions on or in respect of any of Seller’s capital stock or redemption, purchase or acquisition
of Seller’s capital stock;


 


(c) material
change in any method of accounting or accounting practice for the Business, except as required by GAAP or as disclosed in the notes to
the Financial Statements;


 


(d) material
change in cash management practices and policies, practices and procedures with respect to collection of Accounts Receivable, establishment
of reserves for uncollectible Accounts Receivable, accrual of Accounts Receivable, inventory control, prepayment of expenses, payment
of trade accounts payable, accrual of other expenses, deferral of revenue and acceptance of customer deposits;


 


(e) entry
into any Contract that would constitute a Material Contract;


 


(f) incurrence,
assumption or guarantee of any indebtedness for borrowed money in connection with the Business except unsecured current obligations and
Liabilities incurred in the ordinary course of business consistent with past practice;


 


(g) transfer,
assignment, sale or other disposition of any of the Purchased Assets shown or reflected in the Balance Sheet, except for the sale of Inventory
in the ordinary course of business;


 


(h) cancellation
of any debts or claims or amendment, termination or waiver of any rights constituting Purchased Assets;


 


(i) transfer
or assignment of or grant of any license or sublicense under or with respect to any material Intellectual Property Assets or Intellectual
Property Agreements (except non-exclusive licenses or sublicenses granted in the ordinary course of business consistent with past practice;


 






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(j) abandonment
or lapse of or failure to maintain in full force and effect any material Intellectual Property Registration, or failure to take or maintain
reasonable measures to protect the confidentiality or value of any material Trade Secrets included in the Intellectual Property Assets;


 


(k) material
damage, destruction or loss, or any material interruption in use, of any Purchased Assets, whether or not covered by insurance;


 


(l) acceleration,
termination, material modification to or cancellation of any Assigned Contract or Permit;


 


(m) material
capital expenditures which would constitute an Assumed Liability;


 


(n) imposition
of any Encumbrance upon any of the Purchased Assets;


 


(o) (i)
grant of any bonuses, whether monetary or otherwise, or increase in any wages, salary, severance, pension or other compensation or benefits
in respect of any current or former employees, officers, directors, independent contractors or consultants of the Business, other than
as provided for in any written agreements or required by applicable Law, (ii) change in the terms of employment for any employee of the
Business or any termination of any employees for which the aggregate costs and expenses exceed $ 1,000.00, or (iii) action to accelerate
the vesting or payment of any compensation or benefit for any current or former employee, officer, director, consultant or independent
contractor of the Business;


 


(p) hiring
or promoting any person as or to (as the case may be) an officer or hiring or promoting any employee below officer except to fill a vacancy
in the ordinary course of business;


 


(q) adoption,
modification or termination of any: (i) employment, severance, retention or other agreement with any current or former employee, officer,
director, independent contractor or consultant of the Business, (ii) Benefit Plan, or (iii) collective bargaining or other agreement with
a Union, in each case whether written or oral;


 


(r) any
loan to (or forgiveness of any loan to), or entry into any other transaction with, any current or former directors, officers or employees
of the Business;


 


(s) adoption
of any plan of merger, consolidation, reorganization, liquidation or dissolution or filing of a petition in bankruptcy under any provisions
of federal or state bankruptcy Law or consent to the filing of any bankruptcy petition against it under any similar Law;


 


(t) purchase,
lease or other acquisition of the right to own, use or lease any property or assets in connection with the Business for an amount in excess
of $400.00 individually (in the case of a lease, per annum) or $1,000.00 in the aggregate (in the case of a lease, for the entire term
of the lease, not including any option term), except for purchases of Inventory or supplies in the ordinary course of business consistent
with past practice;




 






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(u) Contract
to do any of the foregoing, or any action or omission that would result in any of the foregoing.


 


Section
4.07 Material Contracts. 


 


(a) Section
4.07(a) of the Disclosure Schedules lists each of the following Contracts (x) by which any of the Purchased Assets are bound or
affected or (y) to which Seller is a party or by which it is bound in connection with the Business or the Purchased Assets (such Contracts,
together with all Contracts concerning the occupancy, management or operation of any Real Property (including without limitation, brokerage
contracts) listed or otherwise disclosed in Section 4.10(a) of the Disclosure Schedules
and all Intellectual Property Agreements set forth in Section 4.11(b) of the Disclosure
Schedules, being “Material Contracts”):


 


(i) all
Contracts involving aggregate consideration in excess of $1,000.00 and which, in each case, cannot be cancelled without penalty or without
more than 30 day’ notice’s;


 


(ii) all
Contracts that require Seller to purchase or sell a stated portion of the requirements or outputs of the Business or that contain “take
or pay” provisions;


 


(iii) all
Contracts that provide for the indemnification of any Person or the assumption of any Tax, environmental or other Liability of any Person;


 


(iv) all
Contracts that relate to the acquisition or disposition of any business, a material amount of stock or assets of any other Person or any
real property (whether by merger, sale of stock, sale of assets or otherwise);


 


(v) all
broker, distributor, dealer, manufacturer’s representative, franchise, agency, sales promotion, market research, marketing consulting
and advertising Contracts;


 


(vi) all
employment agreements and Contracts with independent contractors or consultants (or similar arrangements) and which are not cancellable
without material penalty or without more than 90 days’ notice;


 


(vii) except
for Contracts relating to trade payables, all Contracts relating to indebtedness (including, without limitation, guarantees);


 


(viii) all
Contracts with any Governmental Authority (“Government Contracts”);


 


(ix) all
Contracts that limit or purport to limit the ability of Seller to compete in any line of business or with any Person or in any geographic
area or during any period of time;


 


(x) all
joint venture, partnership or similar Contracts;


 



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(xi) all
Contracts for the sale of any of the Purchased Assets or for the grant to any Person of any option, right of first refusal or preferential
or similar right to purchase any of the Purchased Assets;


 


(xii) all
powers of attorney with respect to the Business or any Purchased Asset;


 


(xiii) all
collective bargaining agreements or Contracts with any Union; and


 


(xiv) all
other Contracts that are material to the Purchased Assets or the operation of the Business and not previously disclosed pursuant to this
Section 4.07.


 


(b) Each
Material Contract is valid and binding on Seller in accordance with its terms and is in full force and effect. None of Seller or, to Seller’s
Knowledge, any other party thereto is in breach of or default under (or is alleged to be in breach of or default under) in any material
respect, or has provided or received any notice of any intention to terminate, any Material Contract. No event or circumstance has occurred
that, with notice or lapse of time or both, would constitute an event of default under any Material Contract or result in a termination
thereof or would cause or permit the acceleration or other changes of any right or obligation or the loss of any benefit thereunder. Complete
and correct copies of each Material Contract (including all modifications, amendments and supplements thereto and waivers thereunder)
have been made available to Buyer. There are no material disputes pending or threatened under any Contract included in the Purchased Assets.


 


Section
4.08 Title to Purchased Assets. Seller has good and valid title to, or a valid leasehold interest in, all of the Purchased
Assets. All such Purchased Assets (including leasehold interests) are free and clear of Encumbrances except for the following (collectively
referred to as “Permitted Encumbrances”):


 


(a) those
items set forth in Section 4.08 of the Disclosure Schedules;


 


(b) liens
for Taxes not yet due and payable;


 


(c) mechanics’,
carriers’, workmen’s, repairmen’s or other like liens arising or incurred in the ordinary course of business consistent
with past practice or amounts that are not delinquent and which are not, individually or in the aggregate, material to the Business or
the Purchased Assets;


 


(d) easements,
rights of way, zoning ordinances and other similar encumbrances affecting Real Property which are not, individually or in the aggregate,
material to the Business or the Purchased Assets, which do not prohibit or interfere with the current operation of any Real Property and
which do not render title to any Real Property unmarketable; or


 


(e) other
than with respect to Owned Real Property, liens arising under original purchase price conditional sales contracts and equipment leases
with third parties entered into in the ordinary course of business consistent with past practice which are not, individually or in the
aggregate, material to the Business or the Purchased Assets.


 






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Section
4.09 Condition and Sufficiency of Assets. Except as set forth in Section 4.09
of the Disclosure Schedules, the buildings, plants, structures, furniture, fixtures, machinery, equipment, vehicles and other items of
tangible personal property included in the Purchased Assets are structurally sound, are in good operating condition and repair, and are
adequate for the uses to which they are being put, and none of such buildings, plants, structures, furniture, fixtures, machinery, equipment,
vehicles and other items of tangible personal property is in need of maintenance or repairs except for ordinary, routine maintenance and
repairs that are not material in nature or cost. The Purchased Assets are sufficient for the continued conduct of the Business after the
Closing in substantially the same manner as conducted prior to the Closing and constitute all of the rights, property and assets necessary
to conduct the Business as currently conducted. None of the Excluded Assets are material to the Business.


 


Section
4.10 Real Property. 


 


(a) Section
4.10(a) of the Disclosure Schedules sets forth each parcel of real property owned by Seller and used in or necessary for the conduct
of the Business as currently conducted (together with all buildings, fixtures, structures and improvements situated thereon and all easements,
rights-of-way and other rights and privileges appurtenant thereto, collectively, the “Owned Real Property”), including
with respect to each property, the address location and use. Seller has delivered to Buyer copies of the deeds and other instruments (as
recorded) by which Seller acquired such parcel of Owned Real Property, and copies of all title insurance policies, opinions, abstracts
and surveys in the possession of Seller with respect to such parcel. With respect to each parcel of Real Property:


 


(i) Seller
has good and marketable fee simple title, free and clear of all Encumbrances, except (A) Permitted Encumbrances and (B) those Encumbrances
set forth on Section 4.10(a)(i) of the Disclosure Schedules;


 


(ii) except
as set forth on Section 4.10(a)(ii) of the Disclosure Schedules, Seller has not leased
or otherwise granted to any Person the right to use or occupy such Owned Real Property or any portion thereof; and


 


(iii) there
are no unrecorded outstanding options, rights of first offer or rights of first refusal to purchase such Owned Real Property or any portion
thereof or interest therein.


 


(b) Section
4.10(b) of the Disclosure Schedules sets forth each parcel of real property leased by Seller and used in or necessary for the conduct
of the Business as currently conducted (together with all rights, title and interest of Seller in and to leasehold improvements relating
thereto, including, but not limited to, security deposits, reserves or prepaid rents paid in connection therewith, collectively, the “Leased
Real Property”), and a true and complete list of all leases, subleases, licenses, concessions and other agreements (whether
written or oral), including all amendments, extensions renewals, guaranties and other agreements with respect thereto, pursuant to which
Seller holds any Leased Real Property (collectively, the “Leases”). Seller has delivered to Buyer a true and complete
copy of each Lease. With respect to each Lease:


 


(i) such
Lease is valid, binding, enforceable and in full force and effect, and Seller enjoys peaceful and undisturbed possession of the Leased
Real Property;


 






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(ii) Seller
is not in breach or default under such Lease, and no event has occurred or circumstance exists which, with the delivery of notice, passage
of time or both, would constitute such a breach or default, and Seller has paid all rent due and payable under such Lease;


 


(iii) Seller
has not received nor given any notice of any default or event that with notice or lapse of time, or both, would constitute a default by
Seller under any of the Leases and, to the Knowledge of Seller, no other party is in default thereof, and no party to any Lease has exercised
any termination rights with respect thereto;


 


(iv) Seller
has not subleased, assigned or otherwise granted to any Person the right to use or occupy such Leased Real Property or any portion thereof;
and


 


(v) Seller
has not pledged, mortgaged or otherwise granted an Encumbrance on its leasehold interest in any Leased Real Property.


 


(c) Seller
has not received any written notice of (i) material violations of building codes and/or zoning ordinances or other governmental or regulatory
Laws affecting the Real Property, (ii) existing, pending or threatened condemnation proceedings affecting the Real Property, or (iii)
existing, pending or threatened zoning, building code or other moratorium proceedings, or similar matters which could reasonably be expected
to materially and adversely affect the ability to operate the Real Property as currently operated. Neither the whole nor any material
portion of any Real Property has been damaged or destroyed by fire or other casualty.


 


(d) The
Real Property is sufficient for the continued conduct of the Business after the Closing in substantially the same manner as conducted
prior to the Closing and constitutes all of the real property necessary to conduct the Business as currently conducted.


 


Section
4.11 Intellectual Property. 


 


(a) Section
4.11(a) of the Disclosure Schedules contains a correct, current and complete list of: (i) all Intellectual Property Registrations,
specifying as to each, as applicable: the title, mark, or design; the jurisdiction by or in which it has been issued, registered or filed;
the patent, registration or application serial number; the issue, registration or filing date; and the current status; and (ii) all unregistered
Trademarks included in the Intellectual Property Assets; and (iii) all proprietary Software included in the Intellectual Property Assets;
and (iv) all other Intellectual Property Assets that are used or held for use in the conduct of the Business as currently conducted or
proposed to be conducted.


 






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(b) Section
4.11(b) of the Disclosure Schedules contains a correct, current and complete list of all Intellectual Property Agreements, specifying
for each the date, title, and parties thereto, and separately identifying the Intellectual Property Agreements: (i) under which Seller
is a licensor or otherwise grants to any Person any right or interest relating to any Intellectual Property Asset; (ii) under which Seller
is a licensee or otherwise granted any right or interest relating to the Intellectual Property of any Person; and (iii) which otherwise
relate to the Seller’s ownership or use of any Intellectual Property in the conduct of the Business as currently conducted or proposed
to be conducted, in each case identifying the Intellectual Property covered by such Intellectual Property Agreement. Seller has provided
Buyer with true and complete copies (or in the case of any oral agreements, a complete and correct written description) of all such Intellectual
Property Agreements, including all modifications, amendments and supplements thereto and waivers thereunder. Each Intellectual Property
Agreement is valid and binding on Seller in accordance with its terms and is in full force and effect. Neither Seller nor any other party
thereto is, or is alleged to be, in breach of or default under, or has provided or received any notice of breach of, default under, or
intention to terminate (including by non-renewal), any Intellectual Property Agreement.


 


(c) Except
as set forth in Section 4.11(c) of the Disclosure Schedules, Seller is the sole and exclusive
legal and beneficial, and with respect to the Intellectual Property Registrations, record, owner of all right, title and interest in and
to the Intellectual Property Assets, and has the valid and enforceable right to use all other Intellectual Property used or held for use
in or necessary for the conduct of the Business as currently conducted or as proposed to be conducted, in each case, free and clear of
Encumbrances other than Permitted Encumbrances. The Intellectual Property Assets and Licensed Intellectual Property are all of the Intellectual
Property necessary to operate the Business as presently conducted or proposed to be conducted. Seller has entered into binding, valid
and enforceable written Contracts with each current and former employee and independent contractor who is or was involved in or has contributed
to the invention, creation, or development of any Intellectual Property during the course of employment or engagement with Seller whereby
such employee or independent contractor (i) acknowledges Seller’s exclusive ownership of all Intellectual Property Assets invented,
created or developed by such employee or independent contractor within the scope of his or her employment or engagement with Seller; (ii)
grants to Seller a present, irrevocable assignment of any ownership interest such employee or independent contractor may have in or to
such Intellectual Property , to the extent such Intellectual Property does not constitute a “work made for hire” under Applicable
Law; and (iii) irrevocably waives any right or interest, including any moral rights, regarding such Intellectual Property, to the extent
permitted by applicable Law. Seller has provided Buyer with true and complete copies of all such Contracts. All assignments and other
instruments necessary to establish, record, and perfect Seller’s ownership interest in the Intellectual Property Registrations have
been validly executed, delivered, and filed with the relevant Governmental Authorities and authorized registrars.


 






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(d) Neither
the execution, delivery, or performance of this Agreement, nor the consummation of the transactions contemplated hereunder, will result
in the loss or impairment of or payment of any additional amounts with respect to, or require the consent of any other Person in respect
of, the Buyer’s right to own or use any Intellectual Property Assets or Licensed Intellectual Property in the conduct of the Business
as currently conducted and as proposed to be conducted. Immediately following the Closing, all Intellectual Property Assets will be owned
or available for use by Buyer on identical/substantially the same/similar terms as they were owned or available for use by Seller immediately
prior to the Closing.


 


(e) All
of the Intellectual Property Assets (and Licensed Intellectual Property) is valid and enforceable, and all Intellectual Property Registrations
are subsisting and in full force and effect. Seller has taken all reasonable and necessary steps to maintain and enforce the Intellectual
Property Assets and Licensed Intellectual Property and to preserve the confidentiality of all Trade Secrets included in the Intellectual
Property Assets, including by requiring all Persons having access thereto to execute binding, written non-disclosure agreements. All required
filings and fees related to the Intellectual Property Registrations have been timely submitted with and paid to the relevant Governmental
Authorities and authorized registrars. Seller has provided Buyer with true and complete copies of all file histories, documents, certificates,
office actions, correspondence, assignments, and other instruments relating to the Intellectual Property Registrations.


 


(f) The
conduct of the Business as currently and formerly conducted and as proposed to be conducted, including the use of the Intellectual Property
Assets and Licensed Intellectual Property in connection therewith, and the products, processes, and services of the Business have not
infringed, misappropriated, or otherwise violated and will not infringe, misappropriate, or otherwise violate the Intellectual Property
or other rights of any Person. No Person has infringed, misappropriated, or otherwise violated any Intellectual Property Assets or Licensed
Intellectual Property.


 


(g) There
are no Actions (including any opposition, cancellation, revocation, review, or other proceeding), whether settled, pending or threatened
(including in the form of offers to obtain a license): (i) alleging any infringement, misappropriation, or other violation of the Intellectual
Property of any Person by Seller in the conduct of the Business; (ii) challenging the validity, enforceability, registrability, patentability,
or ownership of any Intellectual Property Assets or Licensed Intellectual Property; or (iii) by Seller or any other Person alleging any
infringement, misappropriation, or other violation by any Person of any Intellectual Property Assets. Seller is not aware of any facts
or circumstances that could reasonably be expected to give rise to any such Action. Seller is not subject to any outstanding or prospective
Governmental Order (including any motion or petition therefor) that does or could reasonably be expected to restrict or impair the use
of any Intellectual Property Assets or Licensed Intellectual Property.


 


(h) Section
4.11(h) of the Seller Disclosure Schedules contains a correct, current, and complete list of all social media accounts used by Seller
in the conduct of the Business. Seller has complied with all terms of use, terms of service, and other Contracts and all associated policies
and guidelines relating to its use of any social media platforms, sites, or services in the conduct of the Business (collectively, “Platform
Agreements”). There are no Actions settled, pending, or threatened alleging (i) any breach or other violation of any Platform
Agreement by Seller; or (ii) defamation, any violation of publicity rights of any Person, or any other violation by Seller in connection
with its use of social media in the conduct of the Business.


 






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(i) All
Business IT Systems are in good working condition and are sufficient for the operation of the Business as currently conducted and as proposed
to be conducted. In the past 30 days, there has been no malfunction, failure, continued substandard performance, denial-of-service, or
other cyber incident, including any cyberattack, or other impairment of the Business IT Systems that has resulted or is reasonably likely
to result in material disruption or damage to the Business and that has not been remedied. Seller has taken all commercially reasonable
steps to safeguard the confidentiality, availability, security, and integrity of the Business IT Systems, including implementing and maintaining
appropriate backup, disaster recovery, and Software and hardware support arrangements.


 


(j) Seller
has complied with all applicable Laws and all internal or publicly posted policies, notices, and statements concerning the collection,
use, processing, storage, transfer, and security of personal information in the conduct of the Business. In the past 30 days, Seller has
not (i) experienced any actual, alleged, or suspected data breach or other security incident involving personal information in its possession
or control or (ii) been subject to or received any written notice of any audit, investigation, complaint, or other Action by any Governmental
Authority or other Person concerning the Company’s collection, use, processing, storage, transfer, or protection of personal information
or actual, alleged, or suspected violation of any applicable Law concerning privacy, data security, or data breach notification, in each
case in connection with the conduct of the Business, and to Seller’s Knowledge, there are no facts or circumstances that could reasonably
be expected to give rise to any such Action.


 


Section
4.12 Inventory. All Inventory, whether or not reflected in the Balance Sheet, consists of a quality and quantity usable
and salable in the ordinary course of business consistent with past practice, except for obsolete, damaged, defective or slow-moving items
that have been written off or written down to fair market value or for which adequate reserves have been established. All Inventory is
owned by Seller free and clear of all Encumbrances, and no Inventory is held on a consignment basis. The quantities of each item of Inventory
(whether raw materials, work-in-process or finished goods) are not excessive but are reasonable in the present circumstances of Seller.


 


Section
4.13 Accounts Receivable. The Accounts Receivable reflected on the Interim Balance Sheet and the Accounts Receivable arising
after the Interim Balance Sheet Date (a) have arisen from bona fide transactions entered into by Seller involving the sale of goods or
the rendering of services in the ordinary course of business consistent with past practice; and (b) constitute only valid, undisputed
claims of Seller not subject to claims of set-off or other defenses or counterclaims other than normal cash discounts accrued in the ordinary
course of business consistent with past practice; and (c) subject to a reserve for bad debts shown on the Interim Balance Sheet or, with
respect to Accounts Receivable arising after the Interim Balance Sheet Date, on the accounting records of the Business, are collectible
in full within 10 days after billing. The reserve for bad debts shown on the Interim Balance Sheet or, with respect to Accounts Receivable
arising after the Interim Balance Sheet Date, on the accounting records of the Business have been determined in accordance with GAAP,
consistently applied, subject to normal year-end adjustments and the absence of disclosures normally made in footnotes.


 






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Section
4.14 Customers and Suppliers. 


 


(a) Section
4.14(a) of the Disclosure Schedules sets forth with respect to the Business (i) each customer who has paid aggregate consideration
to Seller for goods or services rendered in an amount greater than or equal to $10,000.00 for each of the most recent fiscal year (collectively,
the “Material Customers”); and (ii) the amount of consideration paid by each Material Customer during such periods.
Except as set forth in Section 4.14(a) of the Disclosure Schedules, Seller has not received
any notice, and has no reason to believe, that any of the Material Customers has ceased, or intends to cease after the Closing, to use
the goods or services of the Business or to otherwise terminate or materially reduce its relationship with the Business.


 


(b) Section
4.14(b) of the Disclosure Schedules sets forth with respect to the Business (i) each supplier to whom Seller has paid consideration
for goods or services rendered in an amount greater than or equal to $10,000.00 for each of the most recent fiscal year (collectively,
the “Material Suppliers”); and (ii) the amount of purchases from each Material Supplier during such periods. Except
as set forth in Section 4.14(b) of the Disclosure Schedules, Seller has not received
any notice, and has no reason to believe, that any of the Material Suppliers has ceased, or intends to cease, to supply goods or services
to the Business or to otherwise terminate or materially reduce its relationship with the Business.


 


Section
4.15 Insurance. Section 4.15 of the Disclosure Schedules sets forth (a)
a true and complete list of all current policies or binders of fire, liability, product liability, umbrella liability, real and personal
property, workers’ compensation, vehicular, fiduciary liability and other casualty and property insurance maintained by Seller or
its Affiliates and relating to the Business, the Purchased Assets or the Assumed Liabilities (collectively, the “Insurance Policies”);
and (b) with respect to the Business, the Purchased Assets or the Assumed Liabilities, a list of all pending claims and the claims history
for Seller since 12/1/2022. Except as set forth on Section 4.15 of the Disclosure Schedules,
there are no claims related to the Business, the Purchased Assets or the Assumed Liabilities pending under any such Insurance Policies
as to which coverage has been questioned, denied or disputed or in respect of which there is an outstanding reservation of rights. Neither
Seller nor any of its Affiliates has received any written notice of cancellation of, premium increase with respect to, or alteration of
coverage under, any of such Insurance Policies. All premiums due on such Insurance Policies have either been paid or, if not yet due,
accrued. All such Insurance Policies (a) are in full force and effect and enforceable in accordance with their terms; (b) are provided
by carriers who are financially solvent; and (c) have not been subject to any lapse in coverage. None of Seller or any of its Affiliates
is in default under, or has otherwise failed to comply with, in any material respect, any provision contained in any such Insurance Policy.
The Insurance Policies are of the type and in the amounts customarily carried by Persons conducting a business similar to the Business
and are sufficient for compliance with all applicable Laws and Contracts to which Seller is a party or by which it is bound. True and
complete copies of the Insurance Policies have been made available to Buyer.


 






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Section
4.16 Legal Proceedings; Governmental Orders. 


 


(a) Except
as set forth in Section 4.16(a) of the Disclosure Schedules, there are no Actions pending
or, to Seller’s Knowledge, threatened against or by Seller (a) relating to or affecting the Business, the Purchased Assets or the
Assumed Liabilities; or (b) that challenge or seek to prevent, enjoin or otherwise delay the transactions contemplated by this Agreement.
No event has occurred, or circumstances exist that may give rise to, or serve as a basis for, any such Action.


 


(b) Except
as set forth in Section 4.16(b) of the Disclosure Schedules, there are no outstanding
Governmental Orders and no unsatisfied judgments, penalties or awards against, relating to or affecting the Business. Seller is in compliance
with the terms of each Governmental Order set forth in Section 4.16(b) of the Disclosure
Schedules. No event has occurred, or circumstances exist that may constitute or result in (with or without notice or lapse of time) a
violation of any such Governmental Order.


 


Section
4.17 Compliance With Laws; Permits. 


 


(a) Except
as set forth in Section 4.17(a) of the Disclosure Schedules, Seller has complied, and
is now complying, with all Laws applicable to the conduct of the Business as currently conducted or the ownership and use of the Purchased
Assets.


 


(b) All
Permits required for Seller to conduct the Business as currently conducted or for the ownership and use of the Purchased Assets have been
obtained by Seller and are valid and in full force and effect. All fees and charges with respect to such Permits as of the date hereof
have been paid in full. Section 4.17(b) of the Disclosure Schedules lists all current
Permits issued to Seller which are related to the conduct of the Business as currently conducted or the ownership and use of the Purchased
Assets, including the names of the Permits and their respective dates of issuance and expiration. No event has occurred that, with or
without notice or lapse of time or both, would reasonably be expected to result in the revocation, suspension, lapse or limitation of
any Permit set forth in Section 4.17(b) of the Disclosure Schedules.


 


Section
4.18 Environmental Matters. 


 


(a) The
operations of Seller with respect to the Business and the Purchased Assets are currently and have been in compliance with all Environmental
Laws. Seller has not received from any Person, with respect to the Business or the Purchased Assets, any: (i) Environmental Notice or
Environmental Claim; or (ii) written request for information pursuant to Environmental Law, which, in each case, either remains pending
or unresolved, or is the source of ongoing obligations or requirements as of the Closing Date.


 


(b) Seller
has obtained and is in material compliance with all Environmental Permits (each of which is disclosed in Section
1.01(a) of the Disclosure Schedules) necessary for the conduct of the Business as currently conducted or the ownership, lease,
operation or use of the Purchased Assets and all such Environmental Permits are in full force and effect and shall be maintained in full
force and effect by Seller through the Closing Date in accordance with Environmental Law, and Seller is not aware of any condition, event
or circumstance that might prevent or impede, after the Closing Date, the conduct of the Business as currently conducted or the ownership,
lease, operation or use of the Purchased Assets. With respect to any such Environmental Permits, Seller has undertaken, or will undertake
prior to the Closing Date, all measures necessary to facilitate transferability of the same, and Seller is not aware of any condition,
event or circumstance that might prevent or impede the transferability of the same and has not received any Environmental Notice or written
communication regarding any material adverse change in the status or terms and conditions of the same.


 






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(c) There
has been no Release of Hazardous Materials in contravention of Environmental Law with respect to the Business or the Purchased Assets
or any real property currently or formerly owned, leased or operated by Seller in connection with the Business, and Seller has not received
an Environmental Notice that any of the Business or the Purchased Assets or real property currently or formerly owned, leased or operated
by Seller in connection with the Business (including soils, groundwater, surface water, buildings and other structure located thereon)
has been contaminated with any Hazardous Material which could reasonably be expected to result in an Environmental Claim against, or a
violation of Environmental Law or term of any Environmental Permit by, Seller.


 


(d) Section
4.18(d) of the Disclosure Schedules contains a complete and accurate list of all active or abandoned aboveground or underground
storage tanks owned or operated by Seller in connection with the Business or the Purchased Assets.


 


(e) Section
4.18(e) of the Disclosure Schedules contains a complete and accurate list of all off-site Hazardous Materials treatment, storage,
or disposal facilities or locations used by Seller and any predecessors in connection with the Business or the Purchased Assets as to
which Seller may retain liability, and none of these facilities or locations has been placed or proposed for placement on the National
Priorities List (or CERCLIS) under CERCLA, or any similar state list, and Seller has not received any Environmental Notice regarding potential
liabilities with respect to such off-site Hazardous Materials treatment, storage, or disposal facilities or locations used by Seller.


 


(f) Seller
has not retained or assumed, by contract or operation of Law, any liabilities or obligations of third parties under Environmental Law.


 


(g) Seller
has provided or otherwise made available to Buyer and listed in Section 4.18(g) of the
Disclosure Schedules: (i) any and all environmental reports, studies, audits, records, sampling data, site assessments, risk assessments,
economic models and other similar documents with respect to the Business or the Purchased Assets or any real property currently or formerly
owned, leased or operated by Seller in connection with the Business which are in the possession or control of Seller related to compliance
with Environmental Laws, Environmental Claims or an Environmental Notice or the Release of Hazardous Materials; and (ii) any and all material
documents concerning planned or anticipated capital expenditures required to reduce, offset, limit or otherwise control pollution and/or
emissions, manage waste or otherwise ensure compliance with current or future Environmental Laws (including, without limitation, costs
of remediation, pollution control equipment and operational changes).


 






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(h) Seller
is not aware of or reasonably anticipates, as of the Closing Date, any condition, event or circumstance concerning the Release or regulation
of Hazardous Materials that might, after the Closing Date, prevent, impede or materially increase the costs associated with the ownership,
lease, operation, performance or use of the Business or the Purchased Assets as currently carried out.


 


(i) Seller
owns and controls all Environmental Attributes (a complete and accurate list of which is set forth in Section
4.18(i) of the Disclosure Schedules) and has not entered into any contract or pledge to transfer, lease, license, guarantee, sell,
mortgage, pledge or otherwise dispose of or encumber any Environmental Attributes as of the date hereof. Seller is not aware of any condition,
event or circumstance that might prevent, impede or materially increase the costs associated with the transfer (if required) to Buyer
of any Environmental Attributes after the Closing Date.


 


Section
4.19 Employee Benefit Matters. 


 


(a) Section
4.19(a) of the Disclosure Schedules contains a true and complete list of each pension, benefit, retirement, compensation, employment,
consulting, profit-sharing, deferred compensation, incentive, bonus, performance award, phantom equity, stock or stock-based, change in
control, retention, severance, vacation, paid time off (PTO), medical, vision, dental, disability, welfare, Code Section 125 cafeteria,
fringe-benefit and other similar agreement, plan, policy, program or arrangement (and any amendments thereto), in each case whether or
not reduced to writing and whether funded or unfunded, including each “employee benefit plan” within the meaning of Section
3(3) of ERISA, whether or not tax-qualified and whether or not subject to ERISA, which is or has been maintained, sponsored, contributed
to, or required to be contributed to by Seller for the benefit of any current or former employee, officer, director, retiree, independent
contractor or consultant of the Business or any spouse or dependent of such individual, or under which Seller or any of its ERISA Affiliates
has or may have any Liability, or with respect to which Buyer or any of its Affiliates would reasonably be expected to have any Liability,
contingent or otherwise (as listed on Section 4.19(a) of the Disclosure Schedules, each,
a “Benefit Plan”). Seller has separately identified in Section 4.19(a)
of the Disclosure Schedules each Benefit Plan that is maintained, sponsored, contributed to, or required to be contributed to by Seller
primarily for the benefit of employees of the Business outside of the United States (a “Non-U.S. Benefit Plan”).


 


(b) With
respect to each Benefit Plan, Seller has made available to Buyer accurate, current and complete copies of each of the following: (i) where
the Benefit Plan has been reduced to writing, the plan document together with all amendments; (ii) where the Benefit Plan has not been
reduced to writing, a written summary of all material plan terms; (iii) where applicable, copies of any trust agreements or other funding
arrangements, custodial agreements, insurance policies and contracts, administration agreements and similar agreements, and investment
management or investment advisory agreements, now in effect or required in the future as a result of the transactions contemplated by
this Agreement or otherwise; (iv) copies of any summary plan descriptions, summaries of material modifications, summaries of benefits
and coverage, COBRA communications, employee handbooks and any other written communications (or a description of any oral communications)
relating to any Benefit Plan; (v) in the case of any Benefit Plan that is intended to be qualified under Section 401(a) of the Code, a
copy of the most recent determination, opinion or advisory letter from the Internal Revenue Service and any legal opinions issued thereafter
with respect to such Benefit Plan’s continued qualification; (vi) in the case of any Benefit Plan for which a Form 5500 must be
filed, a copy of the two most recently filed Forms 5500, with all corresponding schedules and financial statements attached; (vii) actuarial
valuations and reports related to any Benefit Plans with respect to the most recently completed plan years; (viii) the most recent nondiscrimination
tests performed under the Code; and (ix) copies of material notices, letters or other correspondence from the Internal Revenue Service,
Department of Labor, Department of Health and Human Services, Pension Benefit Guaranty Corporation or other Governmental Authority relating
to the Benefit Plan.


 






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(c) Except
as set forth in Section 4.19(c) of the Disclosure Schedules, e/Each Benefit Plan and
any related trust (other than any multiemployer plan within the meaning of Section 3(37) of ERISA (each a “Multiemployer Plan”))
has been established, administered and maintained in accordance with its terms and in compliance with all applicable Laws (including ERISA
and the Code and any applicable local Laws). Each Benefit Plan that is intended to be qualified within the meaning of Section 401(a) of
the Code (a “Qualified Benefit Plan”) is so qualified and received a favorable and current determination letter from
the Internal Revenue Service with respect to the most recent five year filing cycle, or with respect to a prototype or volume submitter
plan, can rely on an opinion letter from the Internal Revenue Service to the prototype plan or volume submitter plan sponsor, to the effect
that such Qualified Benefit Plan is so qualified and that the plan and the trust related thereto are exempt from federal income taxes
under Sections 401(a) and 501(a), respectively, of the Code, and nothing has occurred that could reasonably be expected to adversely affect
the qualified status of any Qualified Benefit Plan. Nothing has occurred with respect to any Benefit Plan that has subjected or could
reasonably be expected to subject Seller or any of its ERISA Affiliates or, with respect to any period on or after the Closing Date, Buyer
or any of its Affiliates, to a penalty under Section 502 of ERISA or to tax or penalty under Sections 4975 or 4980H of the Code.


 


No pension plan (other
than a Multiemployer Plan) which is subject to minimum funding requirements, including any multiple employer plan, (each a “Single
Employer Plan”) in which employees of the Business or any ERISA Affiliate participate or have participated has an “accumulated
funding deficiency,” whether or not waived, or is subject to a lien for unpaid contributions under Section 303(k) of ERISA or Section
430(k) of the Code. No Single Employer Plan covering employees of the Business which is a defined benefit plan has an “adjusted
funding target attainment percentage,” as defined in Section 436 of the Code, less than 80%. Except as set forth in Section
4.19(c) of the Disclosure Schedules, all benefits, contributions and premiums relating to each Benefit Plan have been timely paid
in accordance with the terms of such Benefit Plan and all applicable Laws and accounting principles, and all benefits accrued under any
unfunded Benefit Plan have been paid, accrued or otherwise adequately reserved to the extent required by, and in accordance with GAAP.
All Non-U.S. Benefit Plans that are intended to be funded and/or book-reserved are funded and/or book-reserved, as appropriate, based
upon reasonable actuarial assumptions.


 






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(d) Neither
Seller nor any of its ERISA Affiliates has (i) incurred or reasonably expects to incur, either directly or indirectly, any material Liability
under Title I or Title IV of ERISA or related provisions of the Code or applicable local Law relating to employee benefit plans; (ii)
failed to timely pay premiums to the Pension Benefit Guaranty Corporation; (iii) withdrawn from any Benefit Plan; (iv) engaged in any
transaction which would give rise to liability under Section 4069 or Section 4212(c) of ERISA; (v) incurred taxes under Section 4971 of
the Code with respect to any Single Employer Plan; or (vi) participated in a multiple employer welfare arrangement (MEWA).


 


(e) With
respect to each Benefit Plan (i) no such plan is a Multiemployer Plan/except as set forth in Section
4.19(e) of the Disclosure Schedules, no such plan is a Multiemployer Plan, and (A) all contributions required to be paid by Seller
or its ERISA Affiliates have been timely paid to the applicable Multiemployer Plan, (B) neither Seller nor any ERISA Affiliate has incurred
any withdrawal liability under Title IV of ERISA which remains unsatisfied, and (C) a complete withdrawal from all such Multiemployer
Plans on the Closing Date would not result in any material liability to Seller and no Multiemployer Plan is in critical, endangered or
seriously endangered status or has suffered a mass withdrawal; (ii) except as set forth in Section
4.19(e) of the Disclosure Schedules, no such plan is a “multiple employer plan” within the meaning of Section 413(c)
of the Code or a “multiple employer welfare arrangement” (as defined in Section 3(40) of ERISA); (iii) no Action has been
initiated by the Pension Benefit Guaranty Corporation to terminate any such plan or to appoint a trustee for any such plan and (iv) no
such plan or the plan of any ERISA Affiliate maintained or contributed to within the last six (6) years is a Single Employer Plan subject
to Title IV of ERISA; and (v) no “reportable event,” as defined in Section 4043 of ERISA, with respect to which the reporting
requirement has not been waived, has occurred with respect to any such Plan.


 


(f) Except
as set forth in Section 4.19(f) of the Disclosure Schedules and other than as required
under Sections 601 to 608 of ERISA or other applicable Law, no Benefit Plan or other arrangement provides post-termination or retiree
health benefits to any individual for any reason.


 


(g) Except
as set forth in Section 4.19(g) of the Disclosure Schedules, there is no pending or,
to Seller’s Knowledge, threatened Action relating to a Benefit Plan (other than routine claims for benefits), and no Benefit Plan
has within the one year prior to the date hereof been the subject of an examination or audit by a Governmental Authority or the subject
of an application or filing under, or is a participant in, an amnesty, voluntary compliance, self-correction or similar program sponsored
by any Governmental Authority.


 


(h) There
has been no amendment to, announcement by Seller or any of its Affiliates relating to, or change in employee participation or coverage
under, any Benefit Plan or collective bargaining agreement that would increase the annual expense of maintaining such plan above the level
of the expense incurred for the most recently completed fiscal year (other than on a de minimis basis) with respect to any director, officer,
employee, consultant or independent contractor of the Business, as applicable. Neither Seller nor any of its Affiliates has any commitment
or obligation or has made any representations to any director, officer, employee, consultant or independent contractor of the Business,
whether or not legally binding, to adopt, amend, modify or terminate any Benefit Plan or any collective bargaining Agreement.


 






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(i) Each
Benefit Plan that is subject to Section 409A of the Code has been administered in compliance with its terms and the operational and documentary
requirements of Section 409A of the Code and all applicable regulatory guidance (including, notices, rulings and proposed and final regulations)
thereunder. Seller does not have any obligation to gross up, indemnify or otherwise reimburse any individual for any excise taxes, interest
or penalties incurred pursuant to Section 409A of the Code.


 


(j) Except
as set forth inspection of the Disclosure Schedules, neither the execution of this Agreement
nor any of the transactions contemplated by this Agreement will (either alone or upon the occurrence of any additional or subsequent events):
(i) entitle any current or former director, officer, employee, independent contractor or consultant of the Business to severance pay or
any other payment; (ii) accelerate the time of payment, funding or vesting, or increase the amount of compensation (including stock-based
compensation) due to any such individual; (iii) increase the amount payable under or result in any other material obligation pursuant
to any Benefit Plan; (iv) result in “excess parachute payments” within the meaning of Section 280G(b) of the Code; or (v)
require a “gross-up” or other payment to any “disqualified individual” within the meaning of Section 280G(c) of
the Code. Seller has made available to Buyer true and complete copies of any Section 280G calculations prepared (whether or not final)
with respect to any disqualified individual in connection with the transactions.


 


Section
4.20 Employment Matters. 


 


(a) Section
4.20(a) of the Disclosure Schedules contains a list of all persons who are employees, independent contractors or consultants of
the Business as of the date hereof, including any employee who is on a leave of absence of any nature, paid or unpaid, authorized or unauthorized,
and sets forth for each such individual the following: (i) name; (ii) title or position (including whether full-time or part-time); (iii)
hire or retention date; (iv) current annual base compensation rate or contract fee; (v) commission, bonus or other incentive-based compensation;
and (vi) a description of the fringe benefits provided to each such individual as of the date hereof. Except as set forth in Section
4.20(a) of the Disclosure Schedules, as of the date hereof, all compensation, including wages, commissions, bonuses, fees and other
compensation, payable to all employees, independent contractors or consultants of the Business for services performed on or prior to the
date hereof have been paid in full and there are no outstanding agreements, understandings or commitments of Seller with respect to any
compensation, commissions, bonuses or fees.


 


(b) Except
as set forth in Section 4.20(b) of the Disclosure Schedules, Seller is not, and has not
been for the past one year, a party to, bound by, or negotiating any collective bargaining agreement or other Contract with a union, works
council or labor organization (collectively, “Union”), and there is not, and has not been for the past one year, any
Union representing or purporting to represent any employee of Seller, and, to Seller’s Knowledge, no Union or group of employees
is seeking or has sought to organize employees for the purpose of collective bargaining. Except as set forth in Section
4.20(b) of the Disclosure Schedules, there has never been, nor has there been any threat of, any strike, slowdown, work stoppage,
lockout, concerted refusal to work overtime or other similar labor disruption or dispute affecting Seller or any employees of the Business.
Seller has no duty to bargain with any Union.


 






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(c) Seller
is and has been in compliance in all material respects with the terms of the collective bargaining agreements and other Contracts listed
on Section 4.20(b) of the Disclosure Schedules and all applicable Laws pertaining to
employment and employment practices to the extent they relate to employees, volunteers, interns, consultants and independent contractors
of the Business, including all Laws relating to labor relations, equal employment opportunities, fair employment practices, employment
discrimination, harassment, retaliation, reasonable accommodation, disability rights or benefits, immigration, wages, hours, overtime
compensation, child labor, hiring, promotion and termination of employees, working conditions, meal and break periods, privacy, health
and safety, workers’ compensation, leaves of absence, paid sick leave and unemployment insurance. All individuals characterized
and treated by Seller as consultants or independent contractors of the Business are properly treated as independent contractors under
all applicable Laws. All employees of the Business classified as exempt under the Fair Labor Standards Act and state and local wage and
hour laws are properly classified in all material respects. Seller is in compliance with and has complied with all immigration laws, including
Form I-9 requirements and any applicable mandatory E-Verify obligations. Except as set forth in Section
4.20(c), t/There are no Actions against Seller pending, or to the Seller’s Knowledge, threatened to be brought or filed,
by or with any Governmental Authority or arbitrator in connection with the employment of any current or former applicant, employee, consultant
, volunteer, intern or independent contractor of the Business, including, without limitation, any charge , investigation or claim relating
to unfair labor practices, equal employment opportunities, fair employment practices, employment discrimination, harassment, retaliation,
reasonable accommodation, disability rights or benefits, immigration, wages, hours, overtime compensation, employee classification, child
labor, hiring, promotion and termination of employees, working conditions, meal and break periods, privacy, health and safety, workers’
compensation, leaves of absence, paid sick leave, unemployment insurance or any other employment related matter arising under applicable
Laws.


 


(d) 
Seller has complied in all material respects with the WARN Act , and it has no plans to undertake any action in the future that would
trigger the WARN Act.


 


(e) 
With respect to each Government Contract, Seller is and has been in compliance in all material respects with Executive Order No. 11246
of 1965 (“E.O. 11246”), Section 503 of the Rehabilitation Act of 1973 (“Section 503”) and the Vietnam Era Veterans’
Readjustment Assistance Act of 1974 (“VEVRAA”), including all implementing regulations. Seller maintains and complies with
affirmative action plans in compliance with E.O. 11246, Section 503 and VEVRAA, including all implementing regulations. Seller is not,
and has not been for the past two years, the subject of any audit, investigation or enforcement action by any Governmental Authority in
connection with any Government Contract or related compliance with E.O. 11246, Section 503 or VEVRAA. Seller has not been debarred, suspended
or otherwise made ineligible from doing business with the United States government or any government contractor. Seller is in compliance
with and has complied with all immigration laws, including any applicable mandatory E-Verify obligations.


 






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Section
4.21 Taxes. Except as set forth in Section 4.21 of the Disclosure Schedules:


 


(a) All
Tax Returns with respect to the Business required to be filed by Seller for any Pre-Closing Tax Period have been, or will be, timely filed.
Such Tax Returns are, or will be, true, complete and correct in all respects. All Taxes due and owing by Seller (whether or not shown
on any Tax Return) have been, or will be, timely paid.


 


(b) Seller
has withheld and paid each Tax required to have been withheld and paid in connection with amounts paid or owing to any Employee, independent
contractor, creditor, customer, shareholder or other party, and complied with all information reporting and backup withholding provisions
of applicable Law


 


(c) No
extensions or waivers of statutes of limitations have been given or requested with respect to any Taxes of Seller.


 


(d) All
deficiencies asserted, or assessments made, against Seller as a result of any examinations by any taxing authority have been fully paid.


 


(e) Seller
is not a party to any Action by any taxing authority. There are no pending or threatened Actions by any taxing authority.


 


(f) There
are no Encumbrances for Taxes upon any of the Purchased Assets nor, to Seller’s Knowledge, is any taxing authority in the process
of imposing any Encumbrances for Taxes on any of the Purchased Assets (other than for current Taxes not yet due and payable).


 


(g) Seller
is not a “foreign person” as that term is used in Treasury Regulations Section 1.1445-2.


 


(h) Seller
is not, and has not been, a party to, or a promoter of, a “reportable transaction” within the meaning of Section 6707A(c)(1)
of the Code and Treasury Regulations Section 1.6011 4(b).


 


(i) 
None of the Purchased Assets is (i) required to be treated as being owned by another person pursuant to the so-called “safe harbor
lease” provisions of former Section 168(f)(8) of the Internal Revenue Code of 1954, as amended, (ii) subject to Section 168(g)(1)(A)
of the Code, or (iii) subject to a disqualified leaseback or long-term agreement as defined in Section 467 of the Code.


 






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(j) 
None of the Purchased Assets is tax-exempt use property within the meaning of Section 168(h) of the Code.


 


Section
4.22 Brokers. No broker, finder or investment banker is entitled to any brokerage, finder’s or other fee or commission
in connection with the transactions contemplated by this Agreement or any Ancillary Document based upon arrangements made by or on behalf
of Seller.


 


Section
4.23  Full Disclosure. No representation or warranty by Seller in this Agreement and no statement contained in the Disclosure
Schedules to this Agreement or any certificate or other document furnished or to be furnished to Buyer pursuant to this Agreement contains
any untrue statement of a material fact, or omits to state a material fact necessary to make the statements contained therein, in light
of the circumstances in which they are made, not misleading.


 


ARTICLE V

Representations and warranties of buyer


 


Except as set forth in the
correspondingly numbered Section of the Disclosure Schedules, Buyer represents and warrants to Seller that the statements contained in
this ARTICLE V are true and correct as of the date hereof.


 


Section
5.01 Organization of Buyer. Buyer is a corporation duly organized, validly existing and in good standing under the Laws
of the state of Delaware.


 


Section
5.02 Authority of Buyer. Buyer has full corporate power and authority to enter into this Agreement and the Ancillary Documents
to which Buyer is a party, to carry out its obligations hereunder and thereunder and to consummate the transactions contemplated hereby
and thereby. The execution and delivery by Buyer of this Agreement and any Ancillary Document to which Buyer is a party, the performance
by Buyer of its obligations hereunder and thereunder and the consummation by Buyer of the transactions contemplated hereby and thereby
have been duly authorized by all requisite corporate action on the part of Buyer. This Agreement has been duly executed and delivered
by Buyer, and (assuming due authorization, execution and delivery by Seller) this Agreement constitutes a legal, valid and binding obligation
of Buyer enforceable against Buyer in accordance with its terms. When each Ancillary Document to which Buyer is or will be a party has
been duly executed and delivered by Buyer (assuming due authorization, execution and delivery by each other party thereto), such Ancillary
Document will constitute a legal and binding obligation of Buyer enforceable against it in accordance with its terms.


 


Section
5.03 No Conflicts; Consents. The execution, delivery and performance by Buyer of this Agreement and the Ancillary Documents
to which it is a party, and the consummation of the transactions contemplated hereby and thereby, do not and will not: (a) conflict with
or result in a violation or breach of, or default under, any provision of the certificate of incorporation, by-laws or other organizational
documents of Buyer; (b) conflict with or result in a violation or breach of any provision of any Law or Governmental Order applicable
to Buyer; or (c) except as set forth in Section 5.03 of the Disclosure Schedules, require
the consent, notice or other action by any Person under any Contract to which Buyer is a party. No consent, approval, Permit, Governmental
Order, declaration or filing with, or notice to, any Governmental Authority is required by or with respect to Buyer in connection with
the execution and delivery of this Agreement and the Ancillary Documents and the consummation of the transactions contemplated hereby
and thereby, except for such filings as may be required under the HSR Act and such consents, approvals, Permits, Governmental Orders,
declarations, filings or notices which, in the aggregate, would not have a material adverse effect on the ability of Buyer to consummate
the transactions contemplated hereby on a timely basis.


 






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Section
5.04 Brokers. No broker, finder or investment banker is entitled to any brokerage, finder’s or other fee or commission
in connection with the transactions contemplated by this Agreement or any Ancillary Document based upon arrangements made by or on behalf
of Buyer.


 


Section
5.05 Sufficiency of Funds. Buyer has sufficient cash on hand or other sources of immediately available funds to enable it
to make payment of the Purchase Price and consummate the transactions contemplated by this Agreement.


 


Section
5.06 Legal Proceedings. There are no Actions pending or, to Buyer’s knowledge, threatened against or by Buyer or any
Affiliate of Buyer that challenge or seek to prevent, enjoin or otherwise delay the transactions contemplated by this Agreement. No event
has occurred or circumstances exist that may give rise or serve as a basis for any such Action.


 


ARTICLE VI

Covenants


 


Section
6.01 Conduct of Business Prior to the Closing. From the date hereof until the Closing, except as otherwise provided in this
Agreement or consented to in writing by Buyer (which consent shall not be unreasonably withheld, conditioned or delayed), Seller shall
(x) conduct the Business in the ordinary course of business consistent with past practice; and (y) use reasonable best efforts to maintain
and preserve intact its current Business organization, operations and franchise and to preserve the rights, franchises, goodwill and relationships
of its employees, customers, lenders, suppliers, regulators and others having relationships with the Business. Without limiting the foregoing,
from the date hereof until the Closing Date, Seller shall:


 


(a) preserve
and maintain all Permits required for the conduct of the Business as currently conducted or the ownership and use of the Purchased Assets;


 


(b) pay
the debts, Taxes and other obligations of the Business when due;


 


(c) continue
to collect Accounts Receivable in a manner consistent with past practice, without discounting such Accounts Receivable;


 


(d) maintain
the properties and assets included in the Purchased Assets in the same condition as they were on the date of this Agreement, subject to
reasonable wear and tear;


 


(e) continue
in full force and effect without modification all Insurance Policies, except as required by applicable Law;


 






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(f) defend
and protect the properties and assets included in the Purchased Assets from infringement or usurpation;


 


(g) perform
all of its obligations under all Assigned Contracts;


 


(h) maintain
the Books and Records in accordance with past practice;


 


(i) comply
in all material respects with all Laws applicable to the conduct of the Business or the ownership and use of the Purchased Assets; and


 


(j) not
take or permit any action that would cause any of the changes, events or conditions described in Section
4.06 to occur.


 


Section
6.02 Access to Information. From the date hereof until the Closing, Seller shall (a) afford Buyer and its Representatives
full and free access to and the right to inspect all of the Real Property, properties, assets, premises, Books and Records, Contracts
and other documents and data related to the Business; (b) furnish Buyer and its Representatives with such financial, operating and other
data and information related to the Business as Buyer or any of its Representatives may reasonably request; and (c) instruct the Representatives
of Seller to cooperate with Buyer in its investigation of the Business. Without limiting the foregoing, Seller shall permit Buyer and
its Representatives to conduct environmental due diligence of the Real Property, including the collecting and analysis of samples of indoor
or outdoor air, potentially hazardous building materials, surface water, groundwater or surface or subsurface land on, at, in, under or
from the Real Property. Any investigation pursuant to this Section 6.02 shall be conducted
in such manner as not to interfere unreasonably with the conduct of the Business or any other businesses of Seller. No investigation by
Buyer or other information received by Buyer shall operate as a waiver or otherwise affect any representation, warranty or agreement given
or made by Seller in this Agreement.


 


Section
6.03 No Solicitation of Other Bids. 


 


(a) Seller
shall not, and shall not authorize or permit any of its Affiliates or any of its or their Representatives to, directly or indirectly,
(i) encourage, solicit, initiate, facilitate or continue inquiries regarding an Acquisition Proposal; (ii) enter into discussions or negotiations
with, or provide any information to, any Person concerning a possible Acquisition Proposal; or (iii) enter into any agreements or other
instruments (whether or not binding) regarding an Acquisition Proposal. Seller shall immediately cease and cause to be terminated, and
shall cause its Affiliates and all of its and their Representatives to immediately cease and cause to be terminated, all existing discussions
or negotiations with any Persons conducted heretofore with respect to, or that could lead to, an Acquisition Proposal. For purposes hereof,
“Acquisition Proposal” means any inquiry, proposal or offer from any Person (other than Buyer or any of its Affiliates)
relating to the direct or indirect disposition, whether by sale, merger or otherwise, of all or any portion of the Business or the Purchased
Assets.


 


(b) In
addition to the other obligations under this Section 6.03, Seller shall promptly (and
in any event within three Business Days after receipt thereof by Seller or its Representatives) advise Buyer orally and in writing of
any Acquisition Proposal, any request for information with respect to any Acquisition Proposal, or any inquiry with respect to or which
could reasonably be expected to result in an Acquisition Proposal, the material terms and conditions of such request, Acquisition Proposal
or inquiry, and the identity of the Person making the same.


 






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(c) Seller
agrees that the rights and remedies for noncompliance with this Section 6.03 shall include
having such provision specifically enforced by any court having equity jurisdiction, it being acknowledged and agreed that any such breach
or threatened breach shall cause irreparable injury to Buyer and that money damages would not provide an adequate remedy to Buyer.


 


Section
6.04 Notice of Certain Events.  


 


(a) From
the date hereof until the Closing, Seller shall promptly notify Buyer in writing of:


 


(i) any
fact, circumstance, event or action the existence, occurrence or taking of which (A) has had, or could reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect, (B) has resulted in, or could reasonably be expected to result in, any representation
or warranty made by Seller hereunder not being true and correct or (C) has resulted in, or could reasonably be expected to result in,
the failure of any of the conditions set forth in Section 7.02 to be satisfied;


 


(ii) any
notice or other communication from any Person alleging that the consent of such Person is or may be required in connection with the transactions
contemplated by this Agreement;


 


(iii) any
notice or other communication from any Governmental Authority in connection with the transactions contemplated by this Agreement; and


 


(iv) any
Actions commenced or, to Seller’s Knowledge, threatened against, relating to or involving or otherwise affecting the Business, the
Purchased Assets or the Assumed Liabilities that, if pending on the date of this Agreement, would have been required to have been disclosed
pursuant to Section 4.16 or that relates to the consummation of the transactions contemplated
by this Agreement.


 


(b) Buyer’s
receipt of information pursuant to this Section 6.04 shall not operate as a waiver or
otherwise affect any representation, warranty or agreement given or made by Seller in this Agreement (including Section
8.02 and Section 9.01(b)) and shall not be deemed to amend or supplement the Disclosure
Schedules.


 


Section
6.05 Employees and Employee Benefits. 


 


(a) Commencing
on the Closing Date, Seller shall terminate all employees of the Business who are actively at work on the Closing Date, and, at Buyer’s
sole discretion, Buyer may offer employment, on an “at will” basis, to any or all of such employees. Seller shall bear any
and all obligations and liability under the WARN Act resulting from employment losses pursuant to this Section
6.05.


 






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(b) Seller
shall be solely responsible, and Buyer shall have no obligations whatsoever for, any compensation or other amounts payable to any current
or former employee, officer, director, independent contractor or consultant of the Business, including, without limitation, hourly pay,
commission, bonus, salary, accrued vacation, fringe, pension or profit sharing benefits or severance pay for any period relating to the
service with Seller at any time on or prior to the Closing Date and Seller shall pay all such amounts to all entitled persons on or prior
to the Closing Date.


 


(c) Seller
shall remain solely responsible for the satisfaction of all claims for medical, dental, life insurance, health accident or disability
benefits brought by or in respect of current or former employees, officers, directors, independent contractors or consultants of the Business
or the spouses, dependents or beneficiaries thereof, which claims relate to events occurring on or prior to the Closing Date. Seller also
shall remain solely responsible for all worker’s compensation claims of any current or former employees, officers, directors, independent
contractors or consultants of the Business which relate to events occurring on or prior to the Closing Date. Seller shall pay, or cause
to be paid, all such amounts to the appropriate persons as and when due.


 


(d) 
Effective as soon as practicable following the Closing Date, Seller, or any applicable Affiliate, shall effect a transfer of assets and
liabilities (including outstanding loans) from the defined contribution retirement plan that it maintains, to the defined contribution
retirement plan maintained by Buyer, with respect to those employees of the Business who become employed by Buyer, or an Affiliate of
Buyer, in connection with the transactions contemplated by this Agreement. Any such transfer shall be in an amount sufficient to satisfy
Section 414(l) of the Code. Upon the transfer of assets and liabilities into Buyer’s plan, all transferred account balances from
Seller’s plan shall become fully vested.


 


(e) 
Each employee of the Business who becomes employed by Buyer in connection with the transactions contemplated by this Agreement shall be
eligible to receive the salary and benefits maintained for employees of Buyer on substantially similar terms and conditions in the aggregate
as are provided to similarly situated employees of Buyer.


 


(f) Each
employee of the Business who becomes employed by Buyer in connection with the transaction shall be given service credit for the purpose
of eligibility under the group health plan and eligibility and vesting only under the defined contribution retirement plan for his or
her period of service with the Seller prior to the Closing Date; provided, however, that (i) such credit shall be given pursuant
to payroll or plan records, at the election of Buyer, in its sole and absolute discretion; and (ii) such service crediting shall be permitted
and consistent with Buyer’s defined contribution retirement plan.


 


Section
6.06 Confidentiality. From and after the Closing, Seller shall, and shall cause its Affiliates to, hold, and shall use its
reasonable best efforts to cause its or their respective Representatives to hold, in confidence any and all information, whether written
or oral, concerning the Business, except to the extent that Seller can show that such information (a) is generally available to and known
by the public through no fault of Seller, any of its Affiliates or their respective Representatives; or (b) is lawfully acquired by Seller,
any of its Affiliates 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. If Seller or any of its Affiliates or their respective Representatives
are compelled to disclose any information by judicial or administrative process or by other requirements of Law, Seller shall promptly
notify Buyer in writing and shall disclose only that portion of such information which Seller is advised by its counsel in writing is
legally required to be disclosed, provided that Seller shall use reasonable best efforts to obtain an appropriate protective order
or other reasonable assurance that confidential treatment will be accorded such information.


 






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Section
6.07 Non-Competition; Non-Solicitation. 


 


(a) For
a period of 12 months commencing on the Closing Date (the “Restricted Period”), Seller shall not, and shall not permit
any of its Affiliates to, directly or indirectly, (i) engage in or assist others in engaging in the Restricted Business in the Territory;
(ii) have an interest in any Person that engages directly or indirectly in the Restricted Business in the Territory in any capacity, including
as a partner, shareholder, member, employee, principal, agent, trustee or consultant; or (iii) cause, induce or encourage any material
actual or prospective client, customer, supplier or licensor of the Business (including any existing or former client or customer of Seller
and any Person that becomes a client or customer of the Business after the Closing), or any other Person who has a material business relationship
with the Business, to terminate or modify any such actual or prospective relationship.


 


(b) During
the Restricted Period, Seller shall not, and shall not permit any of its Affiliates to, directly or indirectly, hire or solicit any person
who is offered employment by Buyer pursuant to Section 6.05(a) or is or was employed
in the Business during the Restricted Period, or encourage any such employee to leave such employment or hire any such employee who has
left such employment, except pursuant to a general solicitation which is not directed specifically to any such employees; provided,
that nothing in this Section 6.07(b) shall prevent Seller or any of its Affiliates
from hiring (i) any employee whose employment has been terminated by Buyer or (ii) after 180 days from the date of termination of employment,
any employee whose employment has been terminated by the employee.


 


(c) Seller
acknowledges that a breach or threatened breach of this Section 6.07 would give rise
to irreparable harm to Buyer, for which monetary damages would not be an adequate remedy, and hereby agrees that in the event of a breach
or a threatened breach by Seller of any such obligations, Buyer shall, in addition to any and all other rights and remedies that may be
available to it in respect of such breach, be entitled to equitable relief, including a temporary restraining order, an injunction, specific
performance and any other relief that may be available from a court of competent jurisdiction (without any requirement to post bond).


 






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(d) Seller
acknowledges that the restrictions contained in this Section 6.07 are reasonable and
necessary to protect the legitimate interests of Buyer and constitute a material inducement to Buyer to enter into this Agreement and
consummate the transactions contemplated by this Agreement. In the event that any covenant contained in this Section
6.07 should ever be adjudicated to exceed the time, geographic, product or service or other limitations permitted by applicable
Law in any jurisdiction, then any court is expressly empowered to reform such covenant, and such covenant shall be deemed reformed, in
such jurisdiction to the maximum time, geographic, product or service or other limitations permitted by applicable Law. The covenants
contained in this Section 6.07 and each provision hereof are severable and distinct covenants
and provisions. The invalidity or unenforceability of any such covenant or provision as written shall not invalidate or render unenforceable
the remaining covenants or provisions hereof, and any such invalidity or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such covenant or provision in any other jurisdiction.


 


Section
6.08 Governmental Approvals and Consents. 


 


(a) Each
party hereto shall, as promptly as possible, (i) make, or cause or be made, all filings and submissions (including those under the HSR
Act) required under any Law applicable to such party or any of its Affiliates; and (ii) use reasonable best efforts to obtain, or cause
to be obtained, all consents, authorizations, orders and approvals from all Governmental Authorities that may be or become necessary for
its execution and delivery of this Agreement and the performance of its obligations pursuant to this Agreement and the Ancillary Documents.
Each party shall cooperate fully with the other party and its Affiliates in promptly seeking to obtain all such consents, authorizations,
orders and approvals. The parties hereto shall not willfully take any action that will have the effect of delaying, impairing or impeding
the receipt of any required consents, authorizations, orders and approvals.


 


(b) Seller
and Buyer shall use reasonable best efforts to give all notices to, and obtain all consents from, all third parties that are described
in Section 4.03 and Section 5.03 of
the Disclosure Schedules.


 


(c) Without
limiting the generality of the parties’ undertakings pursuant to subsections (a) and (b) above, each of the parties hereto shall
use all reasonable best efforts to:


 


(i) respond
to any inquiries by any Governmental Authority regarding antitrust or other matters with respect to the transactions contemplated by this
Agreement or any Ancillary Document;


 


(ii) avoid
the imposition of any order or the taking of any action that would restrain, alter or enjoin the transactions contemplated by this Agreement
or any Ancillary Document; and


 


(iii) in
the event any Governmental Order adversely affecting the ability of the parties to consummate the transactions contemplated by this Agreement
or any Ancillary Document has been issued, to have such Governmental Order vacated or lifted.


 






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(d) All
analyses, appearances, meetings, discussions, presentations, memoranda, briefs, filings, arguments, and proposals made by or on behalf
of either party before any Governmental Authority or the staff or regulators of any Governmental Authority, in connection with the transactions
contemplated hereunder (but, for the avoidance of doubt, not including any interactions between Seller or Buyer with Governmental Authorities
in the ordinary course of business, any disclosure which is not permitted by Law or any disclosure containing confidential information)
shall be disclosed to the other party hereunder in advance of any filing, submission or attendance, it being the intent that the parties
will consult and cooperate with one another, and consider in good faith the views of one another, in connection with any such analyses,
appearances, meetings, discussions, presentations, memoranda, briefs, filings, arguments, and proposals. Each party shall give notice
to the other party with respect to any meeting, discussion, appearance or contact with any Governmental Authority or the staff or regulators
of any Governmental Authority, with such notice being sufficient to provide the other party with the opportunity to attend and participate
in such meeting, discussion, appearance or contact.


 


(e) Notwithstanding
the foregoing, nothing in this Section 6.08 shall require, or be construed to require,
Buyer or any of its Affiliates to agree to (i) sell, hold, divest, discontinue or limit, before or after the Closing Date, any assets,
businesses or interests of Buyer or any of its Affiliates; (ii) any conditions relating to, or changes or restrictions in, the operations
of any such assets, businesses or interests which, in either case, could reasonably be expected to result in a Material Adverse Effect
or materially and adversely impact the economic or business benefits to Buyer of the transactions contemplated by this Agreement and the
Ancillary Documents; or (iii) any material modification or waiver of the terms and conditions of this Agreement.


 


Section
6.09 Books and Records. 


 


(a) In
order to facilitate the resolution of any claims made against or incurred by Seller prior to the Closing, or for any other reasonable
purpose, for a period of one (1) year after the Closing, Buyer shall:


 


(i) retain
the Books and Records (including personnel files) relating to periods prior to the Closing in a manner reasonably consistent with the
prior practices of Seller; and


 


(ii) upon
reasonable notice, afford the Seller’s Representatives reasonable access (including the right to make, at Seller’s expense,
photocopies), during normal business hours, to such Books and Records.


 


(b) In
order to facilitate the resolution of any claims made by or against or incurred by Buyer after the Closing, or for any other reasonable
purpose, for a period of one (1) year following the Closing, Seller shall:


 


(i) retain
the books and records (including personnel files) of Seller which relate to the Business and its operations for periods prior to the Closing;
and


 






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(ii) upon
reasonable notice, afford the Buyer’s Representatives reasonable access (including the right to make, at Buyer’s expense,
photocopies), during normal business hours, to such books and records.


 


(c) Neither
Buyer nor Seller shall be obligated to provide the other party with access to any books or records (including personnel files) pursuant
to this Section 6.09 where such access would violate any Law.


 


Section
6.10 Closing Conditions From the date hereof until the Closing, each party hereto shall use reasonable best efforts to take
such actions as are necessary to expeditiously satisfy the closing conditions set forth in ARTICLE
VII hereof.


 


Section
6.11 Public Announcements. Unless otherwise required by applicable Law or stock exchange requirements (based upon the reasonable
advice of counsel), no party to this Agreement shall make any public announcements in respect of this Agreement or the transactions contemplated
hereby or otherwise communicate with any news media without the prior written consent of the other party (which consent shall not be unreasonably
withheld, conditioned or delayed), and the parties shall cooperate as to the timing and contents of any such announcement.


 


Section
6.12 Bulk Sales Laws. The parties hereby waive compliance with the provisions of any bulk sales, bulk transfer or similar
Laws of any jurisdiction that may otherwise be applicable with respect to the sale of any or all of the Purchased Assets to Buyer; it
being understood that any Liabilities arising out of the failure of Seller to comply with the requirements and provisions of any bulk
sales, bulk transfer or similar Laws of any jurisdiction which would not otherwise constitute Assumed Liabilities shall be treated as
Excluded Liabilities.


 


Section
6.13 Receivables. From and after the Closing, if Seller or any of its Affiliates receives or collects any funds relating
to any Accounts Receivable or any other Purchased Asset, Seller or its Affiliate shall remit such funds to Buyer within five Business
Days after its receipt thereof. From and after the Closing, if Buyer or its Affiliate receives or collects any funds relating to any Excluded
Asset, Buyer or its Affiliate shall remit any such funds to Seller within five Business Days after its receipt thereof.


 


Section
6.14 Transfer Taxes. All transfer, documentary, sales, use, stamp, registration, value added and other such Taxes and fees
(including any penalties and interest) incurred in connection with this Agreement and the Ancillary Documents (including any real property
transfer Tax and any other similar Tax) shall be borne and paid by Seller when due. Seller shall, at its own expense, timely file any
Tax Return or other document with respect to such Taxes or fees (and Buyer shall cooperate with respect thereto as necessary).


 


Section
6.15  Tax Clearance Certificates. If requested by Buyer, Seller shall notify all of the taxing authorities in the jurisdictions
that impose Taxes on Seller or where Seller has a duty to file Tax Returns of the transactions contemplated by this Agreement in the form
and manner required by such taxing authorities, if the failure to make such notifications or receive any available tax clearance certificate
(a “Tax Clearance Certificate”) could subject the Buyer to any Taxes of Seller. If any taxing authority asserts that
Seller is liable for any Tax, Seller shall promptly pay any and all such amounts and shall provide evidence to the Buyer that such liabilities
have been paid in full or otherwise satisfied.


 






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Section
6.16 Further Assurances. Following the Closing, each of the parties hereto shall, and shall cause their respective Affiliates
to, execute and deliver such additional documents, instruments, conveyances and assurances and take such further actions as may be reasonably
required to carry out the provisions hereof and give effect to the transactions contemplated by this Agreement and the Ancillary Documents.


 


ARTICLE VII

Conditions to closing


 


Section
7.01 Conditions to Obligations of All Parties. The obligations of each party to consummate the transactions contemplated
by this Agreement shall be subject to the fulfillment, at or prior to the Closing, of each of the following conditions:


 


(a) The
filings of Buyer and Seller pursuant to the HSR Act, if any, shall have been made and the applicable waiting period and any extensions
thereof shall have expired or been terminated.


 


(b) No
Governmental Authority shall have enacted, issued, promulgated, enforced or entered any Governmental Order which is in effect and has
the effect of making the transactions contemplated by this Agreement illegal, otherwise restraining or prohibiting consummation of such
transactions or causing any of the transactions contemplated hereunder to be rescinded following completion thereof.


 


(c) 
Seller shall have received all consents, authorizations, orders and approvals from the Governmental Authorities referred to in Section
4.03 and Buyer shall have received all consents, authorizations, orders and approvals from the Governmental Authorities referred
to in Section 5.03, in each case, in form and substance reasonably satisfactory to Buyer
and Seller, and no such consent, authorization, order and approval shall have been revoked.


 


Section
7.02 Conditions to Obligations of Buyer. The obligations of Buyer to consummate the transactions contemplated by this Agreement
shall be subject to the fulfillment or Buyer’s waiver, at or prior to the Closing, of each of the following conditions:


 


(a) Other
than the representations and warranties of Seller contained in Section 4.01, Section
4.02, Section 4.03 and Section 4.22,
the representations and warranties of Seller contained in this Agreement, the Ancillary Documents and any certificate or other writing
delivered pursuant hereto shall be true and correct in all respects (in the case of any representation or warranty qualified by materiality
or Material Adverse Effect) or in all material respects (in the case of any representation or warranty not qualified by materiality or
Material Adverse Effect) on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as
of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall
be determined as of that specified date in all respects). The representations and warranties of Seller contained in Section 4.01, Section
4.02, Section 4.03(a) and Section 4.22 shall be true and correct in all respects on and as of the date hereof and on and as of the Closing
Date with the same effect as though made at and as of such date (except those representations and warranties that address matters only
as of a specified date, the accuracy of which shall be determined as of that specified date in all respects).


 






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(b) Seller
shall have duly performed and complied in all material respects with all agreements, covenants and conditions required by this Agreement
and each of the Ancillary Documents to be performed or complied with by it prior to or on the Closing Date ; provided, that, with
respect to agreements, covenants and conditions that are qualified by materiality, Seller shall have performed such agreements, covenants
and conditions, as so qualified, in all respects.


 


(c) No
Action shall have been commenced against Buyer or Seller, which would prevent the Closing. No injunction or restraining order shall have
been issued by any Governmental Authority, and be in effect, which restrains or prohibits any transaction contemplated hereby.


 


(d) All
approvals, consents and waivers that are listed on Section 4.03 of the Disclosure Schedules
shall have been received, and executed counterparts thereof shall have been delivered to Buyer at or prior to the Closing.


 


(e) From
the date of this Agreement, there shall not have occurred any Material Adverse Effect, nor shall any event or events have occurred that,
individually or in the aggregate, with or without the lapse of time, could reasonably be expected to result in a Material Adverse Effect.


 


(f) Seller
shall have delivered to Buyer duly executed counterparts to the Ancillary Documents and such other documents and deliveries set forth
in Section 3.02(a).


 


(g) Buyer
shall have received all Permits that are necessary for it to conduct the Business as conducted by Seller as of the Closing Date.


 


(h) Buyer
shall have received (at Seller’s expense) an owner’s title insurance policy with respect to each Owned Real Property, issued
by a nationally recognized title insurance company acceptable to Buyer, written as of the Closing Date, insuring Buyer in such amounts
and together with such endorsements, and otherwise in such form, as Buyer shall require. Such title insurance policy shall insure fee
simple title to each Owned Real Property, free and clear of all Encumbrances other than Permitted Encumbrances and those listed on Section
4.10(a)(i) of the Disclosure Schedules. Buyer shall have received (at Seller’s expense) an appropriately certified ALTA/NSPS
Land Title Survey showing no Encumbrances other than the Permitted Encumbrances and those listed on Section
4.10(a)(i) of the Disclosure Schedules, and otherwise in form and substance satisfactory to Buyer, for each of the Owned Real Properties.


 


(i) All
Encumbrances relating to the Purchased Assets shall have been released in full, other than Permitted Encumbrances, and Seller shall have
delivered to Buyer written evidence, in form satisfactory to Buyer in its sole discretion, of the release of such Encumbrances.


 






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(j) Buyer
shall have received a certificate, dated the Closing Date and signed by a duly authorized officer of Seller, that each of the conditions
set forth in Section 7.02(a) and Section 7.02(b)
have been satisfied (the “Seller Closing Certificate”).


 


(k) Buyer
shall have received a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of Seller certifying that attached
thereto are true and complete copies of all resolutions adopted by the board of directors of Seller authorizing the execution, delivery
and performance of this Agreement and the Ancillary Documents and the consummation of the transactions contemplated hereby and thereby,
and that all such resolutions are in full force and effect and are all the resolutions adopted in connection with the transactions contemplated
hereby and thereby.


 


(l) Buyer
shall have received a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of Seller certifying the names and
signatures of the officers of Seller authorized to sign this Agreement, the Ancillary Documents and the other documents to be delivered
hereunder and thereunder.


 


(m) Buyer
shall have received a certificate pursuant to Treasury Regulations Section 1.1445-2(b) (the “FIRPTA Certificate”) that
Seller is not a foreign person within the meaning of Section 1445 of the Code duly executed by Seller.


 


(n) Seller
shall have delivered to Buyer such other documents or instruments as Buyer reasonably requests and are reasonably necessary to consummate
the transactions contemplated by this Agreement.


 


Section
7.03 Conditions to Obligations of Seller. The obligations of Seller to consummate the transactions contemplated by this
Agreement shall be subject to the fulfillment or Seller’s waiver, at or prior to the Closing, of each of the following conditions:


 


(a) Other
than the representations and warranties of Buyer contained in Section 5.01, Section
5.02, Section 5.03 and Section 5.04,
the representations and warranties of Buyer contained in this Agreement, the Ancillary Documents and any certificate or other writing
delivered pursuant hereto shall be true and correct in all respects (in the case of any representation or warranty qualified by materiality
or Material Adverse Effect) or in all material respects (in the case of any representation or warranty not qualified by materiality or
material adverse effect) on and as of the date hereof and on and as of the Closing Date with the same effect as though made at and as
of such date (except those representations and warranties that address matters only as of a specified date, the accuracy of which shall
be determined as of that specified date in all respects). The representations and warranties of Buyer contained in Section 5.01, Section
5.02, Section 5.03(a) and Section 5.04 shall be true and correct in all respects on and as of the date hereof and on and as of the Closing
Date with the same effect as though made at and as of such date.


 


(b) Buyer
shall have duly performed and complied in all material respects with all agreements, covenants and conditions required by this Agreement
and each of the Ancillary Documents to be performed or complied with by it prior to or on the Closing Date ; provided, that, with
respect to agreements, covenants and conditions that are qualified by materiality, Buyer shall have performed such agreements, covenants
and conditions, as so qualified, in all respects.


 






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(c) No
injunction or restraining order shall have been issued by any Governmental Authority, and be in effect, which restrains or prohibits any
material transaction contemplated hereby.


 


(d) 
All approvals, consents and waivers that are listed on Section 5.03 of the Disclosure
Schedules shall have been received and executed counterparts thereof shall have been delivered to Seller at or prior to the Closing.


 


(e) Buyer
shall have delivered to Seller duly executed counterparts to the Ancillary Documents and such other documents and deliveries set forth
in Section 3.02(b).


 


(f) Seller
shall have received a certificate, dated the Closing Date and signed by a duly authorized officer of Buyer, that each of the conditions
set forth in Section 7.03(a) and Section 7.03(b)
have been satisfied (the “Buyer Closing Certificate”).


 


(g) Seller
shall have received a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of Buyer certifying that attached
thereto are true and complete copies of all resolutions adopted by the board of directors of Buyer authorizing the execution, delivery
and performance of this Agreement and the Ancillary Documents and the consummation of the transactions contemplated hereby and thereby,
and that all such resolutions are in full force and effect and are all the resolutions adopted in connection with the transactions contemplated
hereby and thereby.


 


(h) Seller
shall have received a certificate of the Secretary or an Assistant Secretary (or equivalent officer) of Buyer certifying the names and
signatures of the officers of Buyer authorized to sign this Agreement, the Ancillary Documents and the other documents to be delivered
hereunder and thereunder.


 


(i) Buyer
shall have delivered to Seller such other documents or instruments as Seller reasonably requests and are reasonably necessary to consummate
the transactions contemplated by this Agreement.


 


ARTICLE VIII

Indemnification


 


Section
8.01 Survival. Subject to the limitations and other provisions of this Agreement, the representations and warranties contained
herein shall survive the Closing and shall remain in full force and effect until the date that is 12 months from the Closing Date; provided,
that the representations and warranties in (i) Section 4.01, Section
4.02, Section 4.03, Section 4.22,
Section 5.01, Section 5.02, Section
5.03 and Section 5.04 shall survive indefinitely, and (ii) Section
4.21 shall survive for the full period of all applicable statutes of limitations (giving effect to any waiver, mitigation or extension
thereof) plus 60 days. All covenants and agreements of the parties contained herein shall survive the Closing indefinitely or for the
period explicitly specified therein. Notwithstanding the foregoing, any claims asserted in good faith with reasonable specificity (to
the extent known at such time) and in writing by notice from the non-breaching party to the breaching party prior to the expiration date
of the applicable survival period shall not thereafter be barred by the expiration of the relevant representation or warranty and such
claims shall survive until finally resolved.


 






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Section
8.02 Indemnification By Seller. Subject to the other terms and conditions of this ARTICLE
VIII, from and after Closing, Seller shall indemnify and defend each of Buyer and its Affiliates and their respective Representatives
(collectively, the “Buyer Indemnitees”) against, and shall hold each of them harmless from and against, and shall pay
and reimburse each of them for, any and all Losses incurred or sustained by, or imposed upon, the Buyer Indemnitees based upon, arising
out of, with respect to or by reason of:


 


(a) any
inaccuracy in or breach of any of the representations or warranties of Seller contained in this Agreement, the Ancillary Documents or
in any certificate or instrument delivered by or on behalf of Seller pursuant to this Agreement, as of the date such representation or
warranty was made or as if such representation or warranty was made on and as of the Closing Date (except for representations and warranties
that expressly relate to a specified date, the inaccuracy in or breach of which will be determined with reference to such specified date);


 


(b) any
breach or non-fulfillment of any covenant, agreement or obligation to be performed by Seller pursuant to this Agreement, the Ancillary
Documents or any certificate or instrument delivered by or on behalf of Seller pursuant to this Agreement;


 


(c) any
Excluded Asset or any Excluded Liability; or


 


(d) any
Third-Party Claim based upon, resulting from or arising out of the business, operations, properties, assets or obligations of Seller or
any of its Affiliates (other than the Purchased Assets or Assumed Liabilities) conducted, existing or arising on or prior to the Closing
Date.


 


Section
8.03 Indemnification By Buyer. Subject to the other terms and conditions of this ARTICLE
VIII, from and after Closing, Buyer shall indemnify and defend each of Seller and its Affiliates and their respective Representatives
(collectively, the “Seller Indemnitees”) against, and shall hold each of them harmless from and against, and shall
pay and reimburse each of them for, any and all Losses incurred or sustained by, or imposed upon, the Seller Indemnitees based upon, arising
out of, with respect to or by reason of:


 


(a) any
inaccuracy in or breach of any of the representations or warranties of Buyer contained in this Agreement or in any certificate or instrument
delivered by or on behalf of Buyer pursuant to this Agreement, as of the date such representation or warranty was made or as if such representation
or warranty was made on and as of the Closing Date (except for representations and warranties that expressly relate to a specified date,
the inaccuracy in or breach of which will be determined with reference to such specified date);


 






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(b) any
breach or non-fulfillment of any covenant, agreement or obligation to be performed by Buyer pursuant to this Agreement; or


 


(c) any
Assumed Liability.


 


Section
8.04 Certain Limitations. The indemnification provided for in Section 8.02
and Section 8.03 shall be subject to the following limitations:


 


(a) Seller
shall not be liable to the Buyer Indemnitees for indemnification under Section 8.02(a)
until the aggregate amount of all Losses in respect of indemnification under Section 8.02(a)
exceeds 50% of the Purchase Price (the “Basket”), in which event Seller shall be required to pay or be liable for all
such Losses from the first dollar. The aggregate amount of all Losses for which Seller shall be liable pursuant to Section
8.02(a) shall not exceed 50% of the Purchase Price (the “Cap”).


 


(b) Buyer
shall not be liable to the Seller Indemnitees for indemnification under Section 8.03(a)
until the aggregate amount of all Losses in respect of indemnification under Section 8.03(a)
exceeds the Basket, in which event Buyer shall be required to pay or be liable for all such Losses from the first dollar. The aggregate
amount of all Losses for which Buyer shall be liable pursuant to Section 8.03(a) shall
not exceed the Cap.


 


(c) Notwithstanding
the foregoing, the limitations set forth in Section 8.04(a) and Section
8.04(b) shall not apply to Losses based upon, arising out of, with respect to or by reason of any inaccuracy in or breach of any
representation or warranty in Section 4.01, Section
4.02, Section 4.03, Section 4.21,
Section 4.22, Section 5.01, Section
5.02, Section 5.03 and Section 5.04.


 


(d) For
purposes of this ARTICLE VIII (including for purposes of determining the existence of
any inaccuracy in, or breach of, any representation or warranty and for calculating the amount of any Loss with respect thereto), any
inaccuracy in or breach of any representation or warranty shall be determined without regard to any materiality, Material Adverse Effect
or other similar qualification contained in or otherwise applicable to such representation or warranty.


 






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Section
8.05 Indemnification Procedures. The party making a claim under this ARTICLE VIII
is referred to as the “Indemnified Party”, and the party against whom such claims are asserted under this ARTICLE
VIII is referred to as the “Indemnifying Party”.


 


(a) Third-Party
Claims. If any Indemnified Party receives notice of the assertion or commencement of any Action made or brought by any Person who is not
a party to this Agreement or an Affiliate of a party to this Agreement or a Representative of the foregoing (a “Third-Party Claim”)
against such Indemnified Party with respect to which the Indemnifying Party is obligated to provide indemnification under this Agreement,
the Indemnified Party shall give the Indemnifying Party reasonably prompt written notice thereof, but in any event not later than 30 calendar
days after receipt of such notice of such Third-Party Claim. The failure to give such prompt written notice shall not, however, relieve
the Indemnifying Party of its indemnification obligations, except and only to the extent that the Indemnifying Party forfeits rights or
defenses by reason of such failure. Such notice by the Indemnified Party shall describe the Third-Party Claim in reasonable detail, shall
include copies of all material written evidence thereof and shall indicate the estimated amount, if reasonably practicable, of the Loss
that has been or may be sustained by the Indemnified Party. The Indemnifying Party shall have the right to participate in, or by giving
written notice to the Indemnified Party, to assume the defense of any Third-Party Claim at the Indemnifying Party’s expense and
by the Indemnifying Party’s own counsel, and the Indemnified Party shall cooperate in good faith in such defense; provided, that
if the Indemnifying Party is Seller, such Indemnifying Party shall not have the right to defend or direct the defense of any such Third-Party
Claim that (x) is asserted directly by or on behalf of a Person that is a supplier or customer of the Business, or (y) seeks an injunction
or other equitable relief against the Indemnified Party. In the event that the Indemnifying Party assumes the defense of any Third-Party
Claim, subject to Section 8.05(b), it shall have the right to take such action as it
deems necessary to avoid, dispute, defend, appeal or make counterclaims pertaining to any such Third-Party Claim in the name and on behalf
of the Indemnified Party. The Indemnified Party shall have the right to participate in the defense of any Third-Party Claim with counsel
selected by it subject to the Indemnifying Party’s right to control the defense thereof. The fees and disbursements of such counsel
shall be at the expense of the Indemnified Party, provided, that if in the reasonable opinion of counsel to the Indemnified Party,
(A) there are legal defenses available to an Indemnified Party that are different from or additional to those available to the Indemnifying
Party; or (B) there exists a conflict of interest between the Indemnifying Party and the Indemnified Party that cannot be waived, the
Indemnifying Party shall be liable for the reasonable fees and expenses of counsel to the Indemnified Party in each jurisdiction for which
the Indemnified Party determines counsel is required. If the Indemnifying Party elects not to compromise or defend such Third-Party Claim,
fails to promptly notify the Indemnified Party in writing of its election to defend as provided in this Agreement, or fails to diligently
prosecute the defense of such Third-Party Claim, the Indemnified Party may, subject to Section
8.05(b), pay, compromise, defend such Third-Party Claim and seek indemnification for any and all Losses based upon, arising from
or relating to such Third-Party Claim. Seller and Buyer shall cooperate with each other in all reasonable respects in connection with
the defense of any Third-Party Claim, including making available (subject to the provisions of Section
6.06) records relating to such Third-Party Claim and furnishing, without expense (other than reimbursement of actual out-of-pocket
expenses) to the defending party, management employees of the non-defending party as may be reasonably necessary for the preparation of
the defense of such Third-Party Claim.


 


(b) Settlement
of Third-Party Claims. Notwithstanding any other provision of this Agreement, the Indemnifying Party shall not enter into settlement of
any Third-Party Claim without the prior written consent of the Indemnified Party, except as provided in this Section
8.05(b). If a firm offer is made to settle a Third-Party Claim without leading to liability or the creation of a financial or other
obligation on the part of the Indemnified Party and provides, in customary form, for the unconditional release of each Indemnified Party
from all liabilities and obligations in connection with such Third-Party Claim and the Indemnifying Party desires to accept and agree
to such offer, the Indemnifying Party shall give written notice to that effect to the Indemnified Party. If the Indemnified Party fails
to consent to such firm offer within ten (10) days after its receipt of such notice, the Indemnified Party may continue to contest or
defend such Third-Party Claim and in such event, the maximum liability of the Indemnifying Party as to such Third-Party Claim shall not
exceed the amount of such settlement offer. If the Indemnified Party fails to consent to such firm offer and also fails to assume defense
of such Third-Party Claim, the Indemnifying Party may settle the Third-Party Claim upon the terms set forth in such firm offer to settle
such Third-Party Claim. If the Indemnified Party has assumed the defense pursuant to Section
8.05(a), it shall not agree to any settlement without the written consent of the Indemnifying Party (which consent shall not be
unreasonably withheld, conditioned or delayed).


 






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(c) Direct
Claims. Any Action by an Indemnified Party on account of a Loss which does not result from a Third-Party Claim (a “Direct Claim”)
shall be asserted by the Indemnified Party giving the Indemnifying Party reasonably prompt written notice thereof, but in any event not
later than 30 days after the Indemnified Party becomes aware of such Direct Claim. The failure to give such prompt written notice shall
not, however, relieve the Indemnifying Party of its indemnification obligations, except and only to the extent that the Indemnifying Party
forfeits rights or defenses by reason of such failure. Such notice by the Indemnified Party shall describe the Direct Claim in reasonable
detail, shall include copies of all material written evidence thereof and shall indicate the estimated amount, if reasonably practicable,
of the Loss that has been or may be sustained by the Indemnified Party. The Indemnifying Party shall have 30 days after its receipt of
such notice to respond in writing to such Direct Claim. The Indemnified Party shall allow the Indemnifying Party and its professional
advisors to investigate the matter or circumstance alleged to give rise to the Direct Claim, and whether and to what extent any amount
is payable in respect of the Direct Claim and the Indemnified Party shall assist the Indemnifying Party’s investigation by giving
such information and assistance (including access to the Indemnified Party’s premises and personnel and the right to examine and
copy any accounts, documents or records) as the Indemnifying Party or any of its professional advisors may reasonably request. If the
Indemnifying Party does not so respond within such 30-day period, the Indemnifying Party shall be deemed to have rejected such claim,
in which case the Indemnified Party shall be free to pursue such remedies as may be available to the Indemnified Party on the terms and
subject to the provisions of this Agreement.


 


Section
8.06 Payments. Once a Loss
is agreed to by the Indemnifying Party or finally adjudicated to be payable pursuant to this ARTICLE
VIII, the Indemnifying Party shall satisfy its obligations within 15 Business Days of such final, non-appealable adjudication by
wire transfer of immediately available funds. The parties hereto agree that should an Indemnifying Party not make full payment of any
such obligations within such 15 Business Day period, any amount payable shall accrue interest from and including the date of agreement
of the Indemnifying Party or final, non-appealable adjudication to but excluding/and including the date such payment has been made at
a rate per annum equal to interest rate. Such interest shall be calculated daily on the basis of a 365-day year and the actual number
of days elapsed, without compounding.


 


Section
8.07 Tax Treatment of Indemnification Payments. All indemnification payments made under this Agreement shall be treated
by the parties as an adjustment to the Purchase Price for Tax purposes, unless otherwise required by Law.


 






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Section
8.08 Effect of Investigation. The representations, warranties and covenants of the Indemnifying Party, and the Indemnified
Party’s right to indemnification with respect thereto, shall not be affected or deemed waived by reason of any investigation made
by or on behalf of the Indemnified Party (including by any of its Representatives) or by reason of the fact that the Indemnified Party
or any of its Representatives knew or should have known that any such representation or warranty is, was or might be inaccurate or by
reason of the Indemnified Party’s waiver of any condition set forth in Section 7.02
or Section 7.03, as the case may be.


 


Section
8.09 Exclusive Remedies. Subject to Section 6.07 and Section
10.11, the parties acknowledge and agree that from and after Closing their sole and exclusive remedy with respect to any and all
claims (other than claims arising from fraud, criminal activity or willful misconduct on the part of a party hereto in connection with
the transactions contemplated by this Agreement) for any breach of any representation, warranty, covenant, agreement or obligation set
forth herein or otherwise relating to the subject matter of this Agreement, shall be pursuant to the indemnification provisions set forth
in this ARTICLE VIII. In furtherance of the foregoing, each party hereby waives, from
and after Closing, to the fullest extent permitted under Law, any and all rights, claims and causes of action for any breach of any representation,
warranty, covenant, agreement or obligation set forth herein or otherwise relating to the subject matter of this Agreement it may have
against the other parties hereto and their Affiliates and each of their respective Representatives arising under or based upon any Law,
except pursuant to the indemnification provisions set forth in this ARTICLE VIII. Nothing
in this Section 8.09 shall limit any Person’s right to seek and obtain any equitable
relief to which any Person shall be entitled or to seek any remedy on account of any party’s fraudulent, criminal or intentional
misconduct.


 


ARTICLE IX

Termination


 


Section
9.01 Termination. This Agreement may be terminated at any time prior to the Closing:


 


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


 


(b) by
Buyer by written notice to Seller if:


 


(i) Buyer
is not then in material breach of any provision of this Agreement and there has been a breach, inaccuracy in or failure to perform any
representation, warranty, covenant or agreement made by Seller pursuant to this Agreement that would give rise to the failure of any of
the conditions specified in ARTICLE VII and such breach, inaccuracy or failure has not
been cured by Seller within ten days of Seller’s receipt of written notice of such breach from Buyer; or


 


(ii) any
of the conditions set forth in Section 7.01 or Section
7.02 shall not have been, or if it becomes apparent that any of such conditions will not be, fulfilled by 12/31/2022, unless such
failure shall be due to the failure of Buyer to perform or comply with any of the covenants, agreements or conditions hereof to be performed
or complied with by it prior to the Closing;


 






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(c) by
Seller by written notice to Buyer if:


 


(i) Seller
is not then in material breach of any provision of this Agreement and there has been a breach, inaccuracy in or failure to perform any
representation, warranty, covenant or agreement made by Buyer pursuant to this Agreement that would give rise to the failure of any of
the conditions specified in ARTICLE VII and such breach, inaccuracy or failure has not
been cured by Buyer within ten days of Buyer’s receipt of written notice of such breach from Seller; or


 


(ii) any
of the conditions set forth in Section 7.01 or Section
7.03 shall not have been, or if it becomes apparent that any of such conditions will not be, fulfilled by 12/31/2022, unless such
failure shall be due to the failure of Seller to perform or comply with any of the covenants, agreements or conditions hereof to be performed
or complied with by it prior to the Closing; or


 


(d) by
Buyer or Seller in the event that (i) there shall be any Law that makes consummation of the transactions contemplated by this Agreement
illegal or otherwise prohibited or (ii) any Governmental Authority shall have issued a Governmental Order restraining or enjoining the
transactions contemplated by this Agreement, and such Governmental Order shall have become final and non-appealable.


 


Section
9.02 Effect of Termination. In the event of the termination of this Agreement in accordance with this Article, this Agreement
shall forthwith become void and there shall be no liability on the part of any party hereto except:


 


(a) as
set forth in this ARTICLE IX and Section 6.06
and ARTICLE X hereof; and


 


(b) that
nothing herein shall relieve any party hereto from liability for any willful breach of any provision hereof.


 


ARTICLE X

Miscellaneous


 


Section
10.01 Expenses. Except as otherwise expressly provided herein, all costs and expenses, including, without limitation, fees
and disbursements of counsel, financial advisors and accountants, incurred in connection with this Agreement and the transactions contemplated
hereby shall be paid by the party incurring such costs and expenses, whether or not the Closing shall have occurred ; provided, however,
Buyer and Seller shall be equally responsible for all filing and other similar fees payable in connection with any filings or submissions
under the HSR Act.


 






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Section
10.02 Notices. All notices, requests, consents, claims, demands, waivers and other communications hereunder shall be in
writing and shall be deemed to have been given (a) when delivered by hand (with written confirmation of receipt); (b) when received by
the addressee if sent by a nationally recognized overnight courier (receipt requested); (c) on the date sent by e-mail of a PDF document
(with confirmation of transmission) if sent during normal business hours of the recipient, and on the next Business Day if sent after
normal business hours of the recipient or (d) on the third day after the date mailed, by certified or registered mail, return receipt
requested, postage prepaid. Such communications must be sent to the respective parties at the following addresses (or at such other address
for a party as shall be specified in a notice given in accordance with this Section 10.02):


 


	If to Seller:	Amerigen7 LLC
	 	3826 Harrison Ave. #4
	 	El Paso, TX 79930
	 	E-mail: Lperez@Amerigen7.com
	 	Attention: President
	 	 
	If to Buyer:	Crown Electrokinetics
	 	11601 Wilshire Blvd Suite 2240
	 	Los Angeles, CA 90049
	 	E-mail: doug@crownek.com
	 	Attention: Chief Executive Officer



 


Section
10.03 Interpretation. For purposes of this Agreement, (a) the words “include,” “includes” and “including”
shall be deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; and (c)
the words “herein,” “hereof,” “hereby,” “hereto” and “hereunder” refer to
this Agreement as a whole. Unless the context otherwise requires, references herein: (x) to Articles, Sections, Disclosure Schedules and
Exhibits mean the Articles and Sections of, and Disclosure Schedules and Exhibits attached to, this Agreement; (y) to an agreement, instrument
or other document means such agreement, instrument or other document as amended, supplemented and modified from time to time to the extent
permitted by the provisions thereof and (z) to a statute means such statute as amended from time to time and includes any successor legislation
thereto and any regulations promulgated thereunder. This Agreement shall be construed without regard to any presumption or rule requiring
construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. The Disclosure Schedules
and Exhibits referred to herein shall be construed with, and as an integral part of, this Agreement to the same extent as if they were
set forth verbatim herein.


 


Section
10.04 Headings. The headings in this Agreement are for reference only and shall not affect the interpretation of this Agreement.


 


Section
10.05 Severability. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction,
such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render
unenforceable such term or provision in any other jurisdiction. Except as provided in Section
6.07(d), upon such determination that any term or other provision is invalid, illegal or unenforceable, the parties hereto shall
negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually
acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent
possible.


 






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Section
10.06 Entire Agreement. This Agreement and the Ancillary Documents constitute the sole and entire agreement of the parties
to this Agreement with respect to the subject matter contained herein and therein, and supersede all prior and contemporaneous understandings
and agreements, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements in
the body of this Agreement and those in the Ancillary Documents, the Exhibits and Disclosure Schedules (other than an exception expressly
set forth as such in the Disclosure Schedules), the statements in the body of this Agreement will control.


 


Section
10.07 Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto
and their respective successors and permitted assigns. Neither party may assign its rights or obligations hereunder without the prior
written consent of the other party, which consent shall not be unreasonably withheld, conditioned or delayed; provided, however,
that prior to the Closing Date, Buyer may, without the prior written consent of Seller, assign all or any portion of its rights under
this Agreement to one or more of its direct or indirect wholly-owned subsidiaries. No assignment shall relieve the assigning party of
any of its obligations hereunder.


 


Section
10.08 No Third-Party Beneficiaries. Except as provided in ARTICLE VIII,
this Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein,
express or implied, is intended to or shall confer upon any other Person or entity any legal or equitable right, benefit or remedy of
any nature whatsoever under or by reason of this Agreement.


 


Section
10.09 Amendment and Modification; Waiver. This Agreement may only be amended, modified or supplemented by an agreement in
writing signed by each party hereto. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth
in writing and signed by the party so waiving. No waiver by any party shall operate or be construed as a waiver in respect of any failure,
breach or default not expressly identified by such written waiver, whether of a similar or different character, and whether occurring
before or after that waiver. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement
shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder
preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.


 


Section
10.10 Governing Law; Submission to Jurisdiction; Waiver of Jury Trial. 


 


(a) This
Agreement shall be governed by and construed in accordance with the internal laws of the State of New York without giving effect to any
choice or conflict of law provision or rule (whether of the State of New York or any other jurisdiction).


 


(b) ANY
LEGAL SUIT, ACTION OR PROCEEDING ARISING OUT OF OR BASED UPON THIS AGREEMENT, THE ANCILLARY DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED
HEREBY OR THEREBY MAY BE INSTITUTED IN THE FEDERAL COURTS OF THE UNITED STATES OF AMERICA OR THE COURTS OF THE STATE OF NEW YORK IN EACH
CASE LOCATED IN THE CITY OF NEW YORK AND COUNTY OF NEW YORK, AND EACH PARTY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF SUCH
COURTS IN ANY SUCH SUIT, ACTION OR PROCEEDING. SERVICE OF PROCESS, SUMMONS, NOTICE OR OTHER DOCUMENT BY MAIL TO SUCH PARTY’S ADDRESS
SET FORTH HEREIN SHALL BE EFFECTIVE SERVICE OF PROCESS FOR ANY SUIT, ACTION OR OTHER PROCEEDING BROUGHT IN ANY SUCH COURT. THE PARTIES
IRREVOCABLY AND UNCONDITIONALLY WAIVE ANY OBJECTION TO THE LAYING OF VENUE OF ANY SUIT, ACTION OR ANY PROCEEDING IN SUCH COURTS AND IRREVOCABLY
WAIVE AND AGREE NOT TO PLEAD OR CLAIM IN ANY SUCH COURT THAT ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT
IN AN INCONVENIENT FORUM.


 






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(c) EACH
PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT OR THE ANCILLARY DOCUMENTS IS LIKELY TO INVOLVE
COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH SUCH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL
BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE ANCILLARY DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED
HEREBY OR THEREBY. EACH PARTY TO THIS AGREEMENT CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE OF ANY OTHER PARTY HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT SEEK TO ENFORCE THE FOREGOING WAIVER IN THE EVENT OF A LEGAL ACTION, (B) SUCH
PARTY HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (C) SUCH PARTY MAKES THIS WAIVER VOLUNTARILY, AND (D) SUCH PARTY HAS BEEN INDUCED
TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 10.10(c).


 


Section
10.11 Specific Performance. The parties agree that irreparable damage would occur if any provision of this Agreement were
not performed in accordance with the terms hereof and that the parties shall be entitled to specific performance of the terms hereof,
in addition to any other remedy to which they are entitled at law or in equity.


 


Section
10.12 Counterparts. This
Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall be deemed to be
one and the same agreement. A signed copy of this Agreement delivered by facsimile, e-mail or other means of electronic transmission shall
be deemed to have the same legal effect as delivery of an original signed copy of this Agreement.


 


[signature page follows]


 




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IN WITNESS WHEREOF, the parties hereto have caused
this Agreement to be executed as of the date first written above by their duly authorized representatives.


 


	 	AMERIGEN 7 LLC
	 	 	 
	 	By	 
	 	Name:	Leonardo Perez
	 	Title:	Chief Executive Officer
	 	 	 
	 	CROWN ELECTROKINETICS CORP.
	 	 	 
	 	By	                               
	 	Name: 	Douglas Croxall
	 	Title:	Chief Executive Officer



 


 


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