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. "Action" means any claim, action, suit, arbitration, inquiry, audit, examination, investigation, or proceeding by or before any Governmental Authority or any arbitrator or arbitration panel. "Adjustment Amount" means the dollar amount by which

Section 1.2 — Rules of Construction 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," "Exhibit," and "Sc

ARTICLE II — PURCHASE AND SALE

Section 2.1 — Acquired Assets Subject to the terms and conditions of this Agreement, at the Closing, Seller shall sell, assign, transfer, convey, and deliver to Buyer, and Buyer shall purchase and acquire from Seller, free and clear of all Encumbrances (other than Permitted Encumbrances), all of Seller's right, title, and interest in and to the following assets, properties, and rights, in each case used or held for u

Section 2.2 — Excluded Assets Notwithstanding anything in Section 2.1 to the contrary, the Acquired Assets shall not include any of the following assets, properties, or rights of Seller (collectively, the "Excluded Assets"): (a) All cash, cash equivalents, bank deposits, and bank accounts of Seller, including all checking accounts, savings accounts, money market accounts, certificates of deposit, and short-term inves

Section 2.3 — Assumed Liabilities At the Closing, Buyer shall assume and agree to pay, perform, and discharge when due only the following liabilities and obligations of Seller (collectively, the "Assumed Liabilities"): (a) All obligations and liabilities arising under the Customer Contracts, the Assigned Contracts, and the Dayton Lease, in each case solely to the extent such obligations and liabilities arise from or

Section 2.4 — Excluded Liabilities Notwithstanding anything in this Agreement to the contrary, Buyer shall not assume and shall not be responsible for, and Seller shall retain and pay, perform, and discharge when due, all liabilities and obligations of Seller other than the Assumed Liabilities (collectively, the "Excluded Liabilities"), including the following: (a) All liabilities and obligations arising out of, rela

Section 2.5 — Purchase Price (a) The aggregate purchase price for the Acquired Assets shall be Forty Million Dollars ($40,000,000) (the "Purchase Price"), subject to adjustment as set forth in Section 2.7. (b) At the Closing: (i) Buyer shall pay to Seller an amount equal to Thirty-Six Million Dollars ($36,000,000) (the Purchase Price, as adjusted pursuant to Section 2.7(a), minus the Escrow Amount) (the "Closing Cash

Section 2.6 — Escrow At the Closing, the Escrow Amount of Four Million Dollars ($4,000,000) shall be deposited with Pinnacle Trust Company, N.A. in accordance with the terms and conditions of the Escrow Agreement. The Escrow Amount shall be held by the Escrow Agent for a period of eighteen (18) months following the Closing Date (through the Escrow Release Date) to secure Seller's indemnification obligations to the Bu

Section 2.7 — Net Working Capital Adjustment

Section 2.7(a) — Estimated Closing Statement No later than three (3) Business Days prior to the Closing Date, Seller shall prepare and deliver to Buyer a written statement (the "Estimated Closing Statement") setting forth Seller's good faith estimate of Closing Net Working Capital as of the close of business on the day immediately preceding the Closing Date, prepared in accordance with the NWC Methodology set forth o

Section 2.7(b) — Post-Closing Determination Within ninety (90) calendar days after the Closing Date, Buyer shall prepare and deliver to Seller a written statement (the "Proposed Closing Statement") setting forth Buyer's calculation of the actual Closing Net Working Capital as of the close of business on the day immediately preceding the Closing Date, prepared in accordance with the NWC Methodology set forth on Exhibi

Section 2.7(c) — Review and Dispute Resolution Seller shall have a period of thirty (30) calendar days after receipt of the Proposed Closing Statement (the "Review Period") to review the Proposed Closing Statement and either (i) accept the Proposed Closing Statement in writing, in which case the Proposed Closing Statement shall become the final and binding determination of Closing NWC (the "Final Closing Statement"),

Section 2.7(d) — Final Adjustment Payment Within five (5) Business Days after the Final Closing Statement becomes final and binding in accordance with Section 2.7(c): (i) If the Closing NWC as set forth in the Final Closing Statement exceeds the NWC Target by more than the NWC Collar (i.e., exceeds Six Million Six Hundred Thousand Dollars ($6,600,000)), Buyer shall pay to Seller the amount of such excess over the upp

Section 2.8 — Purchase Price Allocation (a) The Purchase Price (together with the Assumed Liabilities, to the extent treated as additional consideration for federal income Tax purposes) shall be allocated among the Acquired Assets in accordance with Section 1060 of the Code and the Treasury Regulations promulgated thereunder, as set forth on Schedule 2.8. The Purchase Price Allocation shall be as follows: (b) Buyer a

Section 2.9 — Withholding Buyer shall be entitled to deduct and withhold from any amounts payable pursuant to this Agreement any amounts that Buyer is required to deduct and withhold under any provision of applicable Tax Law. To the extent that any such amounts are so deducted or withheld and timely remitted to the applicable Governmental Authority, such deducted or withheld amounts shall be treated for all purposes

Section 2.10 — Nonassignable Contracts and Consents (a) Notwithstanding anything in this Agreement to the contrary, this Agreement shall not constitute an agreement to assign or transfer any Acquired Asset or any claim, right, or benefit arising thereunder if an attempted assignment or transfer thereof, without the consent, approval, or waiver of a third party (including any Governmental Authority), would constitute

Section 3.1 — Closing Date and Location The closing of the purchase and sale of the Acquired Assets and the assumption of the Assumed Liabilities contemplated by this Agreement (the "Closing") shall take place at 10:00 a.m. Eastern Time on the date that is thirty-one (31) days following the date of this Agreement, or on such other date as the Parties may mutually agree in writing (the "Closing Date"); provided, that

Section 3.2 — Seller's Closing Deliverables At the Closing, Seller shall deliver (or cause to be delivered) to Buyer each of the following: (a) The Bill of Sale, duly executed by Seller, in substantially the form attached hereto as Exhibit A, conveying to Buyer all of Seller's right, title, and interest in and to the Acquired Assets (other than the PureGlow IP and the Dayton Lease, which shall be conveyed by separate

Section 3.3 — Buyer's Closing Deliverables At the Closing, Buyer shall deliver (or cause to be delivered) to Seller each of the following: (a) The Closing Cash Amount of Thirty-Six Million Dollars ($36,000,000) (subject to adjustment as provided in Section 2.7(a)) by wire transfer of immediately available funds in United States dollars to the account or accounts designated by Seller in writing not less than two (2) B

ARTICLE IV — REPRESENTATIONS AND WARRANTIES OF SELLER Except as set forth in the Disclosure Schedules (subject to the provisions of Section 1.2 with respect to the interpretation of the Disclosure Schedules), Seller hereby represents and warrants to Buyer as follows:

Section 4.1 — Organization and Good Standing Seller is a limited liability company duly organized, validly existing, and in good standing under the laws of the State of Delaware. Seller has the requisite limited liability company power and authority to own, lease, and operate the Acquired Assets and to carry on the Business as presently conducted and as proposed to be conducted. Seller is duly qualified or licensed t

Section 4.2 — Authority; Binding Effect Seller has all necessary limited liability company power and authority to execute and deliver this Agreement and each of the Ancillary Agreements to which it is a party, to perform its obligations hereunder and thereunder, and to consummate the transactions contemplated hereby and thereby. The execution, delivery, and performance of this Agreement and each of the Ancillary Agre

Section 4.3 — No Conflict; Required Consents The execution, delivery, and performance by Seller of this Agreement and the Ancillary Agreements to which it is a party, and the consummation of the transactions contemplated hereby and thereby, do not and will not (a) conflict with, result in a violation or breach of, or constitute a default under, the Certificate of Formation or Limited Liability Company Agreement of Se