Contract analysis

Section 1.1 — Defined Terms 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. "Affiliate" means, with respect to any Person, any other Person that directly or indirectly controls, is controlled by, or is under common control with such Person. For purposes of this definition, "control" means the possession, directly or in

Section 1.2 — Rules of Construction (a) The headings and captions of the sections and subsections of this Agreement are for convenience of reference only and shall not affect the construction or interpretation of any provision of this Agreement. (b) Unless the context otherwise requires, words importing the singular include the plural and vice versa, and words importing a gender include all genders. (c) The word "inc

ARTICLE II — PURCHASE AND SALE OF ASSETS; PURCHASE PRICE

Section 2.1 — Acquired Assets Upon the terms and subject to the conditions of this Agreement, at the Closing, Seller shall sell, convey, assign, transfer, and deliver to Buyer, and Buyer shall purchase and acquire from Seller, all of Seller's right, title, and interest in and to the following assets, properties, and rights, in each case solely to the extent used in or related to the Business (collectively, the "Acqui

Section 2.2 — Excluded Assets Notwithstanding anything to the contrary in Section 2.1 or elsewhere in this Agreement, the following assets of Seller are not being sold, conveyed, assigned, transferred, or delivered to Buyer and are expressly excluded from the Acquired Assets (collectively, the "Excluded Assets"): (a) All cash, cash equivalents, bank accounts, and short-term investments of Seller. (b) All accounts rec

Section 2.3 — Assumed Liabilities At the Closing, Buyer shall assume and agree to pay, perform, and discharge, when due, the following liabilities and obligations of Seller (collectively, the "Assumed Liabilities"): (a) All liabilities and obligations arising after the Closing Date under the Assumed Contracts, but only to the extent such liabilities and obligations arise out of or relate to the period from and after

Section 2.4 — Excluded Liabilities All liabilities and obligations of Seller other than the Assumed Liabilities shall remain the sole responsibility of and shall be retained, paid, performed, and discharged solely by Seller (collectively, the "Excluded Liabilities"). Without limiting the generality of the foregoing, the Excluded Liabilities shall include, without limitation: (a) Any and all liabilities or obligations

Section 2.5 — Purchase Price The aggregate consideration for the Acquired Assets (the "Purchase Price") shall consist of: (a) Closing Payment. Fourteen Million Five Hundred Thousand Dollars ($14,500,000) in cash (the "Closing Payment"), payable by wire transfer of immediately available funds to an account or accounts designated by Seller in writing not later than two (2) Business Days prior to the Closing Date, subje

Section 2.6 — Working Capital Adjustment (a) Estimated Closing Statement. Not later than three (3) Business Days prior to the Closing Date, Seller shall prepare and deliver to Buyer a statement (the "Estimated Closing Statement") setting forth Seller's good faith estimate of the Net Working Capital as of the close of business on the day immediately preceding the Closing Date (the "Estimated Closing Net Working Capita

Section 2.7 — Earnout (a) Earnout Measurement. The earnout provided for in this Section 2.7 shall be based on the total Gallons Shipped of ProShield-branded coatings by Buyer (or its Affiliates) during the Earnout Period. The Earnout Period shall commence on the day immediately following the Closing Date and shall end on the date that is twenty-four (24) months thereafter. (b) Earnout Calculation. The Earnout Amount,

Section 2.8 — Allocation of Purchase Price The Purchase Price (including the Escrow Amount and the Earnout Amount, to the extent paid) shall be allocated among the Acquired Assets in accordance with Section 1060 of the Code and the Treasury Regulations promulgated thereunder, as set forth in the Allocation Schedule attached hereto as Exhibit F. The Parties shall cooperate in good faith to finalize the Allocation Sche

Section 2.9 — Transfer Taxes All Transfer Taxes incurred in connection with the sale, conveyance, assignment, transfer, and delivery of the Acquired Assets to Buyer pursuant to this Agreement shall be borne equally (fifty percent (50%) by Buyer and fifty percent (50%) by Seller). The Parties shall cooperate in the timely filing of all Tax Returns and other documentation required in connection with such Transfer Taxes

Section 2.10 — Withholding Buyer shall be entitled to deduct and withhold from any payments to be made to Seller pursuant to this Agreement any amounts that Buyer is required to deduct and withhold under the Code or any provision of state, local, or foreign Tax law. To the extent that any such amounts are so deducted and withheld and properly remitted to the applicable Governmental Authority, such amounts shall be tr

Section 3.1 — Closing Date and Location The closing of the transactions contemplated by this Agreement (the "Closing") shall take place on or before January 16, 2023 (the "Target Closing Date"), or on such other date as Buyer and Seller may mutually agree in writing (the date on which the Closing actually occurs, the "Closing Date"), subject to the satisfaction or waiver of the conditions set forth in Article VIII. T

Section 3.2 — Closing Deliverables (a) Seller's Deliverables at Closing. At the Closing, Seller shall deliver (or cause to be delivered) to Buyer the following documents, instruments, and other deliverables: (i) Bill of Sale. The Bill of Sale, substantially in the form attached hereto as Exhibit A, duly executed by Seller, conveying to Buyer all of Seller's right, title, and interest in and to the Acquired Assets, fr