Contract analysis

Section 1.1 — Definitions As used in this Agreement, the following terms shall have the meanings set forth below: "Acquired Assets" has the meaning set forth in Section 2.1. "Adjusted EBITDA" means, for any period, the net income of the Acquired Business for such period, determined in accordance with GAAP applied consistently with the NWC Methodology and Seller's historical practices, before deduction for (a) interes

Section 1.2 — Interpretation Unless the context of this Agreement otherwise requires: (a) words of any gender include each other gender; (b) words using the singular or plural number also include the plural or singular number, respectively; (c) the terms "hereof," "herein," "hereby," "hereto," and derivative or similar words refer to this entire Agreement; (d) the terms "Article," "Section," "Schedule," "Exhibit," an

ARTICLE II — PURCHASE AND SALE

Section 2.1 — Purchase and Sale of Acquired Assets Upon the terms and subject to the conditions set forth in this Agreement, at the Closing, Seller shall sell, transfer, assign, convey, and deliver to Purchaser, and Purchaser shall purchase and acquire from Seller, all of Seller's right, title, and interest in and to substantially all of the assets, properties, and rights of every kind and nature, whether real, perso

Section 2.2 — Excluded Assets Notwithstanding anything in Section 2.1 to the contrary, the following assets of Seller shall be excluded from the Acquired Assets and shall be retained by Seller (collectively, the "Excluded Assets"): (a) All cash and cash equivalents of Seller, including all bank accounts, certificates of deposit, money market accounts, and short-term investments, wherever located; (b) All Tax refunds,

Section 2.3 — Assumed Liabilities Upon the terms and subject to the conditions set forth in this Agreement, at the Closing, Purchaser shall assume and agree to pay, perform, and discharge when due only the following liabilities and obligations of Seller (collectively, the "Assumed Liabilities"): (a) Trade Payables. All trade accounts payable and accrued expenses of the Business arising in the Ordinary Course of Busin

Section 2.4 — Excluded Liabilities Except for the Assumed Liabilities, Purchaser shall not assume and shall not be responsible for any liabilities, obligations, or commitments of Seller of any kind or nature whatsoever, whether known or unknown, absolute or contingent, accrued or unaccrued, matured or unmatured, determined or determinable, and whether or not arising out of or relating to acts, events, or conditions o

Section 2.5 — Purchase Price The aggregate consideration for the Acquired Assets (the "Purchase Price") shall consist of the following: (a) Base Purchase Price. Six Hundred Twenty Million Dollars ($620,000,000) (the "Base Purchase Price"), payable as follows: (i) Five Hundred Fifty-Eight Million Dollars ($558,000,000) in cash (the "Closing Cash Payment"), payable at the Closing by wire transfer of immediately availab

Section 2.6 — Working Capital Adjustment

Section 2.6(a) — Estimated Closing Net Working Capital Not less than three (3) Business Days prior to the Closing Date, Seller shall prepare and deliver to Purchaser a written statement (the "Estimated Closing Statement") setting forth Seller's good faith estimate of the Net Working Capital of the Business as of 11:59 p.m. Eastern Time on the day immediately prior to the Closing Date (the "Estimated Closing Net Worki

Section 2.6(b) — Closing Adjustment The Closing Cash Payment shall be adjusted at the Closing as follows: (i) If the Estimated Closing Net Working Capital exceeds the NWC Target by more than the NWC Collar (i.e., by more than $500,000), then the Closing Cash Payment shall be increased on a dollar-for-dollar basis by the amount of such excess over the NWC Target (not the NWC Collar); (ii) If the NWC Target exceeds the

Section 2.6(c) — Post-Closing Final Determination Within ninety (90) days following the Closing Date (i.e., no later than September 28, 2024), Purchaser shall prepare and deliver to Seller a written statement (the "Final Closing Statement") setting forth Purchaser's calculation of the Net Working Capital of the Business as of 11:59 p.m. Eastern Time on the day immediately prior to the Closing Date (the "Final Net Wor

Section 2.6(d) — Final Adjustment Payment Within five (5) Business Days following the final determination of the Final Net Working Capital (whether by agreement of the parties, deemed acceptance, or determination by the Independent Accountant), a final adjustment payment shall be made as follows: (i) If the Final Net Working Capital exceeds the Estimated Closing Net Working Capital (after giving effect to any Closing

Section 2.7 — Escrow At the Closing, Purchaser shall deposit (or cause to be deposited) the Escrow Amount of Sixty-Two Million Dollars ($62,000,000) with Commonwealth Trust & Escrow Company, as Escrow Agent, by wire transfer of immediately available funds, to be held, invested, and disbursed in accordance with the terms and conditions of the Escrow Agreement. The Escrow Amount shall be released to Seller in accordanc

Section 2.8(a) — Earnout Payments In addition to the Base Purchase Price, Seller (and its shareholders) shall be entitled to receive contingent earnout payments (the "Earnout Payments") based on the financial performance of the Acquired Business following the Closing, as follows: Tranche 1 Earnout Payment. Seller shall be entitled to receive a payment of up to Twenty-Two Million Five Hundred Thousand Dollars ($22,500

Section 2.8(b) — Earnout Calculation and Payment Within ninety (90) days after the end of each Earnout Period, Purchaser shall prepare and deliver to Seller a written statement (each, an "Earnout Statement") setting forth Purchaser's calculation of the Adjusted EBITDA for such Earnout Period, together with reasonable supporting documentation. Seller shall have thirty (30) days following its receipt of each Earnout St

Section 2.8(c) — Conduct of Business During Earnout Period During each Earnout Period, Purchaser shall, and shall cause its Affiliates to: (i) operate the Acquired Business in good faith and in the Ordinary Course of Business consistent with past practices of Seller; (ii) not take any action, or omit to take any action, with the primary purpose of reducing, avoiding, or delaying any Earnout Payment; (iii) maintain se

Section 2.8(d) — Change of Control Acceleration In the event that a Change of Control of the Acquired Business or of Purchaser occurs prior to the expiration of the later of the two Earnout Periods (i.e., prior to June 30, 2026), then one hundred percent (100%) of the maximum remaining unpaid Earnout Payments (calculated as the Earnout Cap of $45,000,000 less all Earnout Payments previously paid to Seller) shall beco

Section 2.9 — Allocation of Purchase Price The Base Purchase Price (and all Assumed Liabilities, to the extent treated as additional consideration under applicable Tax Law) and any adjustments thereto (including the Working Capital Adjustment and any Earnout Payments when and as paid) shall be allocated among the Acquired Assets in accordance with Section 1060 of the Code and the Treasury Regulations promulgated ther

Section 2.10 — Withholding Purchaser shall be entitled to deduct and withhold from any amounts otherwise payable to Seller pursuant to this Agreement such amounts as Purchaser is required to deduct and withhold under the Code or any provision of applicable state, local, or foreign Tax Law. To the extent that any amounts are so withheld and paid over to the appropriate Governmental Authority, such withheld amounts sha

Section 3.1 — Closing Date The closing of the transactions contemplated by this Agreement (the "Closing") shall take place on the date that is three (3) Business Days after the satisfaction or waiver (to the extent permitted by applicable Law) of all conditions set forth in Article VII (other than conditions that by their nature are to be satisfied at the Closing, but subject to the satisfaction or waiver of such con

Section 3.2 — Closing Deliverables of Seller At the Closing, Seller shall deliver (or cause to be delivered) to Purchaser each of the following: (a) The Bill of Sale, in substantially the form attached hereto as Exhibit A, duly executed by Seller; (b) The Assignment and Assumption Agreement, in substantially the form attached hereto as Exhibit B, duly executed by Seller; (c) The intellectual Property Assignment Agree