5.09       [Reserved].

 

5.10      Brokers.  The Company will not be responsible for any brokerage, finder’s or other similar fee or commission, or the reimbursement of expenses in connection therewith, to any broker, finder, investment banker or other Person in connection with the Transactions based upon arrangements made by or on behalf of Parent, Merger Sub or their respective Affiliates.

 

5.11      Stockholder and Management Arrangements.  Neither Parent nor Merger Sub, nor any of their respective Affiliates, is a party to any Contract, or has authorized, made or entered into, or committed or agreed to enter into, any arrangements or other understandings (whether or not binding) with any director, officer, employee or stockholder of the Company or any of the Company Subsidiaries, (a) relating to (i) this Agreement or the Merger (except for the Equity Commitment Letter) or (ii) the Surviving Company or any of its Subsidiaries, businesses or operations (including as to continuing employment) from and after the Effective Time, (b) pursuant to which any holder of Shares (i) would be entitled to receive consideration of a different amount or nature than the Merger Consideration in respect of such holder’s Shares, (ii) agrees to vote to approve this Agreement or the Merger or (iii) agrees to vote against any Superior Proposal or (c) pursuant to which any third Person has agreed to provide, directly or indirectly, any capital to Parent, Merger Sub or the Company to finance the Transactions in whole or in part, in each case, excluding any Contracts, arrangements or understandings solely between or among the Security Holders (collectively, the “Stockholder and Management Arrangements”).  True, accurate and complete copies of any Stockholder and Management Arrangements, including all amendments thereto, as in effect as of the date of this Agreement, have been made available to the Company, the Board and the Special Committee.  As of the date of this Agreement, neither Parent nor Merger Sub, nor any of their respective Affiliates, is a party to any Contract, or has authorized, made or entered into, or committed or agreed to enter into, any arrangements or other understandings in each case, which are binding on the parties thereto, with any officer or employee of the Company that is a Security Holder relating to employment or compensation after the Effective Time.

 

5.12       Information Supplied.  None of the information supplied or to be supplied in writing by or on behalf of Parent or Merger Sub expressly for inclusion or incorporation by reference in the Proxy Statement or the Schedule 13E-3 will, on the date the Proxy Statement and the Schedule 13E-3 are first mailed (including by electronic delivery if permitted) to stockholders of the Company or at the time of the Stockholders Meeting (as applicable), contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.  Notwithstanding the foregoing sentence, no representation or warranty is made by Parent or Merger Sub with respect to any information or statement made or incorporated by reference in the Proxy Statement or the Schedule 13E-3 that was not supplied by or on behalf of Parent or Merger Sub for use therein, including information supplied by or on behalf of the Company or any of its Representatives (in such capacity).

 

5.13      Non-Reliance on Estimates, Projections, Forecasts, Forward-Looking Statements and Business Plans.  In connection with the due diligence investigation of the Company and the Company Subsidiaries by Parent and Merger Sub, Parent and Merger Sub (and their respective Representatives) have received and may continue to receive from the Company and the Company Subsidiaries and their respective Representatives certain estimates, projections, forecasts and other forward-looking information, as well as certain business plan information, regarding the Company and the Company Subsidiaries and their respective businesses and operations.  Each of Parent and Merger Sub hereby acknowledges that (a) there are uncertainties inherent in attempting to make such estimates, projections, forecasts and other forward-looking statements, as well as in such business plans, with which Parent and Merger Sub are familiar, (b) Parent and Merger Sub have each made their own evaluation of the adequacy and accuracy of all estimates, projections, forecasts and other forward-looking information, as well as such business plans, so furnished to them, (c) neither Parent nor Merger Sub have relied, or are otherwise relying, upon any such information in connection with the Transactions (including their decision to enter into this Agreement) and (d) except for the representations and warranties set forth in Article IV or in any instrument or other document delivered pursuant to this Agreement, neither Parent nor Merger Sub will have any claim against the Company or any Company Subsidiary, or any of their respective equityholders or Representatives, or any other Person, with respect thereto.

 

5.14       No Other Representations or Warranties.

 

(a)          Except for the representations and warranties of any of the Parent Related Parties expressly set forth in this Article V, the Equity Commitment Letter, the Voting Agreements or in any instrument or other document delivered pursuant to or in connection with this Agreement, the Equity Commitment Letter or the Voting Agreements, none of the Parent Related Parties make any express or implied representation or warranty of any kind whatsoever, at Law or in equity, with respect to Parent, Merger Sub or any of their respective Affiliates or its or their respective businesses, operations, assets, liabilities or condition (financial or otherwise).

 

(b)          Notwithstanding anything to the contrary in this Agreement, each of Parent and Merger Sub hereby acknowledges and agrees (on its own behalf and on behalf of the Parent Related Parties) that, except for the representations and warranties of the Company expressly set forth in Article IV, the Voting Agreements or in any instrument or other document delivered pursuant to this Agreement, (A) none of the Company Related Parties makes, or has made, any representation or warranty and (B) none of the Parent Related Parties is relying on, or has relied on, any representation or warranty made, or information provided, by or on behalf of any Company Related Party, in each case, regarding any Company Related Party, its or their business, this Agreement, the Transactions or any other related matter.

ARTICLE VI

CONDUCT OF BUSINESS PENDING THE MERGER

 

6.01       Conduct of Business by the Company Pending the Merger.  Except as (1) set forth in Section 6.01 of the Company Disclosure Letter, (2) expressly contemplated, required or permitted by this Agreement, (3) required by Law, Order or Governmental Authority or (4) consented to in writing by Parent (which consent shall not be unreasonably withheld, conditioned or delayed), during the Pre-Closing Period, the Company shall use its commercially reasonable efforts, and shall cause each of the Company Subsidiaries to use its respective commercially reasonable efforts, to (i) conduct the businesses of the Company and the Company Subsidiaries in a commercially reasonable manner and in all material respects in the ordinary course of business, (ii) preserve substantially intact its and their current business goodwill and to preserve substantially its and their relationships with key customers, suppliers, clients, vendors, distributors, licensors, licensees, Governmental Authorities, employees or any other Person with whom it and they have material business relations in all material respects and (iii) comply with applicable Law in all material respects.  Without limiting the generality of the foregoing, except as (A) set forth in Section 6.01 of the Company Disclosure Letter, (B) expressly contemplated, required or permitted by this Agreement, (C) required by Law, Order or Governmental Authority or (D) consented to in writing by Parent (which consent shall not be unreasonably withheld, conditioned or delayed), during the Pre-Closing Period, the Company shall not, and shall cause each Company Subsidiary not to:

 

(a)          declare, authorize, establish a record date for, set aside or pay any dividends on, or make any other distributions (whether in cash, stock or other equity, property or a combination thereof) in respect of, any of its capital stock, other than (i) dividends or distributions by a Wholly Owned Subsidiary of the Company to the Company or another Wholly Owned Subsidiary of the Company, (ii) dividends payable to the holder of any shares of Company Preferred Stock in accordance with the terms of the applicable Certificate of Designations, (iii) two (2) quarterly cash dividends payable to holders of Shares made in the ordinary course of business, each in an amount not greater than $0.12 per share, provided that the Company shall not declare a dividend on or after the date of the Stockholders Meeting at which the Company Stockholder Approvals are obtained or (iv) regular dividends payable to any other Person to the extent required pursuant to its organizational or governing documents, including the Certificates of Designations;

 

(b)          split, combine, reclassify, subdivide or reduce any of its capital stock, except for any such transaction involving a Wholly Owned Subsidiary of the Company which remains a Wholly Owned Subsidiary of the Company after consummation of such transaction;

 

(c)         repurchase, redeem or otherwise acquire or offer to redeem, repurchase or otherwise acquire or amend the terms of, directly or indirectly, any shares of its capital stock or any options, warrants, rights, convertible or exchangeable securities, restricted stock units or other rights to acquire any such shares or other rights that give the holder thereof any economic interest of a nature accruing to the holders of such shares, other than (i) the withholding of Shares to satisfy Tax obligations with respect to the vesting and settlement of Company Equity Awards and (ii) in transactions solely among the Company or Wholly Owned Subsidiaries of the Company, directly or indirectly, by the Company;

 

(d)         issue, authorize the issuance of, pledge, dispose of, grant, transfer, encumber, deliver or sell any shares of its capital stock or other voting securities or equity interests, any options, warrants, rights, convertible or exchangeable securities, restricted stock units or other rights to acquire any such shares, securities, interests or other rights that give the holder thereof any economic interest of a nature accruing to the holders of such shares or securities, other than (i) upon the exercise or settlement of Company Equity Awards that are outstanding on the date of this Agreement (or granted following the date of this Agreement to the extent permitted by this Section 6.01(d) or Section 6.01(n)) in accordance with their terms, (ii) upon conversion of the Company Series A Preferred Stock, Company Series B Warrants or Company Series C Warrants, (iii) as required to comply with any Company Plan as in effect on the date of this Agreement, (iv) transactions solely among the Company or Wholly Owned Subsidiaries of the Company, (v) as required pursuant to any indebtedness in connection with any Investment Property in the ordinary course of business and (vi) pursuant to any joint venture agreement to admit a new partner in connection with any Investment Property in the ordinary course so long as such sale or issuance is in compliance with or permitted by Section 6.01(g);

 

(e)         incur, redeem, repurchase, assume, endorse, settle, guarantee, prepay or otherwise become liable for or modify in any material respects the terms of any indebtedness for borrowed money, issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company or any Company Subsidiary, guarantee any such indebtedness or debt securities of another Person or enter into any “keep well” or other agreement requiring the Company or a Company Subsidiary to maintain any financial statement condition of another Person, except for (i) intercompany indebtedness among the Company and the Company Subsidiaries, (ii) equipment financing arrangements, capital leases or other similar instruments issued, made or entered into in the ordinary course of business, (iii) letters of credit, bank guarantees, security or performance bonds or similar credit support instruments, “bad boy” or nonrecourse carveout guarantees, interest and carry guarantees, environmental indemnity agreements or guarantees, repayment guarantees, overdraft facilities or cash management programs, in each case issued, made, entered into or drawn in the ordinary course of business, (iv) indebtedness incurred under existing credit facilities, lines of credit or other existing arrangements (including in respect of letters of credit and any upsize or incremental facility under the Existing Credit Agreement), (v) indebtedness incurred in connection with the renewal, extension or refinancing of any indebtedness or revolving facility or line of credit existing on the date of this Agreement or permitted to be incurred, assumed or otherwise entered into hereunder, (vi) the redemption of the Existing Notes pursuant to the requisite provisions of the Existing Notes Indenture and (vii) indebtedness incurred in connection with any Investment Property in the ordinary course of business;

 

(f)         make any loans, capital contributions, or advances to any Person other than (i) to the Company or any Subsidiary of the Company, (ii) in connection with any acquisition permitted under Section 6.01(i), (iii) as required under the terms of any existing Contract as of the date of this Agreement or (iv) in the ordinary course of business consistent with the Company’s debt investment platform;

 

(g)          sell or lease to any Person, in a single transaction or series of related transactions, any of its material properties or assets, except (i) transfers, sales or leases between and among the Company and the Company Subsidiaries, (ii) dispositions of assets that are obsolete, worn out, surplus or no longer used or useful in the conduct of the business of the Company or any Company Subsidiary, (iii) leases, subleases or licenses of Company Owned Property, Company Leased Property and voluntary terminations or surrenders of such Company Leases, (iv) sales, leases or licenses in the ordinary course of business, (v) sales, leases, licenses or ground leases in connection with any Investment Property or (vi) sales or leases of properties or assets in which the Company’s or a Company Subsidiary’s share of the consideration received in such sale or lease does not exceed $75,000,000 individually or $150,000,000 in the aggregate;

 

(h)          create or grant any Lien (other than a Permitted Lien) on any of its undertakings, properties, shares or assets, other than (i) to secure indebtedness and other obligations permitted under Section 6.01(e) or (ii) to the Company or to a Wholly Owned Subsidiary of the Company;

 

(i)          except pursuant to any Contract, arrangement or understanding entered into on or prior to the date of this Agreement and made available to Parent, make any acquisition (including by merger) of the capital stock or a material portion of the assets of any other Person or business, or division thereof, if the aggregate amount of consideration paid by the Company and the Company Subsidiaries in connection with such transaction or series of related transactions would exceed $50,000,000, other than any acquisition (including by merger) of Investment Property in the ordinary course of business or between or among the Company and the Wholly Owned Subsidiaries of the Company or between or among the Company’s Wholly Owned Subsidiaries;

 

(j)         (i) amend, modify, waive, rescind or otherwise change the Company Charter or the Company Bylaws or (ii) amend, modify, waive, rescind or otherwise change the comparable organizational documents of any Company Subsidiary in any respect that would reasonably be expected to materially delay, materially impede or prevent the consummation of the Transactions, including the Merger, by the Company;

 

(k)       compromise, settle or otherwise satisfy or agree to dismiss any pending or threatened Action against the Company or any Company Subsidiary, other than settlements of any pending or threatened Action (i) in which the Company or any Company Subsidiary is named as a nominal defendant, (ii) reflected or reserved against in the balance sheet of the Company included in the SEC Documents as of the Reference Date for an amount not in excess of the amount so reflected or reserved (excluding any amount that may be paid under insurance policies or indemnification agreements) or (iii) if the amount of any such settlement is individually not material to the Company and the Company Subsidiaries, taken as a whole, after taking into account any amounts that may be paid under insurance policies or indemnification agreements; provided that no settlement of any pending or threatened Action may involve any material injunctive or equitable relief or impose material restrictions on the business activities of the Company and the Company Subsidiaries, taken as a whole;

 

(l)      adopt a plan of merger, consolidation, complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization of the Company or any Company Subsidiary;

 

(m)        (i) make, change or revoke any material Tax election, (ii) change an annual Tax accounting period unless such change is to align the annual Tax accounting period to the Company’s fiscal year, (iii) adopt or change any material Tax accounting method, (iv) file any amended Tax Return with respect to a material amount of Tax, (v) apply for or enter into any material Tax ruling or closing agreement, (vi) settle any Tax claim or assessment with respect to a material amount of Tax or surrender any right to claim a material Tax refund, (vii) consent to any extension or waiver of the limitations period applicable to any Tax claim or assessment with respect to a material amount of Tax or (viii) enter into or make any voluntary disclosure with respect to any material amount of Taxes;

 

(n)       make any changes to the Company’s or any Company Subsidiary’s material methods, principles or practices of financial accounting or annual accounting period, except as required by GAAP, Regulation S-X of the Exchange Act (or any interpretation thereof) or by any Governmental Authority or applicable Law;

 

(o)        except (i) in the ordinary course of business or (ii) as required pursuant to the terms of any Company Plan or Collective Bargaining Agreement in effect on the date of this Agreement, (A) grant to any executive officer any material increase in compensation, (B) grant to any executive officer any material increase in severance, retention or termination pay, (C) establish, adopt, enter into or amend in any material respect any Collective Bargaining Agreement or material Company Plan, or (D) take any action to accelerate any rights or benefits under any material Company Plan; provided, however, that the foregoing shall not restrict the Company or any Company Subsidiary from providing employees who are newly hired or promoted based on job performance or workplace requirements, in each case, in the ordinary course of business, plans, agreements, benefits and compensation arrangements (including equity-based incentive grants) that have a value that is consistent with the value of compensation and benefits provided to employees holding similar positions (and, for clarity, the Company and the Company Subsidiaries may enter into, adopt, establish or amend Company Plans and other arrangements in order to provide such compensation and benefits to such newly hired or promoted employees);

 

(p)         amend, restate, waive or otherwise modify the terms of the Existing Credit Agreement or the Existing Notes Indenture (except for in the ordinary course of business and substantially consistent with past practice); or

 

(q)          authorize any of, or commit or agree to take any of, the foregoing actions in the preceding clauses (a) - (p).

 

6.02       Control of Operations.  Nothing contained in this Agreement shall give Parent or Merger Sub, directly or indirectly, the right to control or direct the operations of the Company or any Company Subsidiary prior to the Closing.  Prior to the Closing, the Company shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over its operations.

ARTICLE VII

 

ADDITIONAL AGREEMENTS

 

7.01        Proxy Statement; Schedule 13E-3.

 

(a)          The Company and Parent shall cooperate to, concurrently with the preparation and filing of the Schedule 13E-3, prepare and file with the SEC, as promptly as reasonably practicable after the date of this Agreement (and use reasonable best efforts to do so within thirty (30) Business Days following the date hereof), a proxy statement as contemplated by Rule 14a of the Exchange Act (such proxy statement, as amended or supplemented, the “Proxy Statement”), which shall contain (i) the information specified in Schedule 14A under the Exchange Act concerning the Merger and (ii) the notice of availability of appraisal rights and related disclosure required by Section 262 of the DGCL. The Company shall (A) provide Parent with a reasonable opportunity to review and comment on drafts of the Proxy Statement prior to filing the Proxy Statement with the SEC and (B) consider in good faith all reasonable comments made with respect thereto by Parent or its Representatives.

 

(b)         The Company and Parent shall cooperate to, concurrently with the preparation and filing of the Proxy Statement, jointly prepare and file with the SEC a Rule 13e-3 Transaction Statement on Schedule 13E-3 (such transaction statement, including any amendment or supplement thereto, the “Schedule 13E-3”) relating to the Transactions.

 

(c)         Each of the Company and Parent shall provide each other and their respective outside legal counsel and other Representatives a reasonable opportunity to participate in any discussions or meetings with the SEC (or portions of any such discussions or meetings) that relate to the Proxy Statement or the Schedule 13E-3.  The Company shall promptly notify Parent, and Parent shall promptly notify the Company, as applicable, of the receipt of any comments from the SEC (or its staff) with respect to the Proxy Statement or the Schedule 13E-3 and of any request by the SEC for any amendment or supplement thereto or for additional information.  The Company shall promptly provide to Parent copies of all correspondence between the Company or any of its Representatives and the SEC with respect to the Proxy Statement and the Schedule 13E-3, and Parent shall promptly provide to the Company copies of all correspondence between Parent or any of its Representatives and the SEC with respect to the Proxy Statement and the Schedule 13E-3.  The Company, Parent and Merger Sub shall use their respective reasonable best efforts to promptly provide responses to the SEC with respect to all comments received on the Proxy Statement or the Schedule 13E-3 from the SEC (or its staff), including by preparing any additional filings required by the SEC or pursuant to applicable Law (provided that, for the avoidance of doubt, prior to responding to any comments of the SEC (or its staff) or making any additional filings required by the SEC, each party shall provide the other with a reasonable opportunity to consult and review such responses or filings and shall consider in good faith any comments on such responses or filings).  The Company, Parent and Merger Sub shall use their respective reasonable best efforts to have the Proxy Statement cleared by the SEC as promptly as reasonably practicable after such filing.  The Company shall cause the definitive Proxy Statement and the Schedule 13E-3 (and any other such additional required filings) to be mailed (including by electronic delivery if permitted) to the stockholders of the Company as of the record date established for the Stockholders Meeting as promptly as reasonably practicable after confirmation from the SEC that it will not review, or that it has completed its review of, the Proxy Statement and the Schedule 13E-3.

 

(d)         The Company agrees, as to itself and the Company Subsidiaries, that the Proxy Statement will comply in all material respects with the applicable provisions of the Exchange Act.  The Company and Parent agree, as to themselves and their Affiliates, that the Schedule 13E-3 will comply in all material respects with the applicable provisions of the Exchange Act.  Each of Parent and Merger Sub shall provide the Company with such information concerning itself and its Affiliates as is customarily included in a proxy statement or Schedule 13E-3 prepared in connection with a transaction of the type contemplated by this Agreement or as otherwise required by Law, as requested by the SEC (or its staff), or as the Company may reasonably request, in each case, as promptly as reasonably practicable after its request by the Company.  The Company, Parent and Merger Sub shall ensure that none of the information supplied by it for inclusion or incorporation by reference in the Proxy Statement or the Schedule 13E-3 will, at the date of mailing (including by electronic delivery if permitted) to stockholders of the Company and at the time of the Stockholders Meeting (as applicable), contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, that the Company assumes no responsibility with respect to information supplied in writing by or on behalf of Parent, Merger Sub or their respective Representatives, for inclusion or incorporation by reference in the Proxy Statement or the Schedule 13E-3 and Parent, Merger Sub and their respective Representatives assume no responsibility with respect to information supplied in writing by or on behalf of the Company for inclusion or incorporation by reference in the Proxy Statement or the Schedule 13E-3.

   (e)         If at any time prior to the Stockholders Meeting, any information relating to the Company or Parent, or any of their respective Affiliates, officers or directors, or any transaction any of them have entered, or are contemplating entering, into in connection with this Agreement, is discovered by Parent, Merger Sub or the Company, which information should be set forth in an amendment or supplement to the Proxy Statement or the Schedule 13E-3, so that the Proxy Statement or the Schedule 13E-3, as applicable, would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they are made, not misleading, the party hereto that discovers such information shall as promptly as practicable following such discovery notify the other parties hereto and after such notification (i) the Company shall, as and to the extent required by applicable Law, promptly prepare an amendment or supplement to the Proxy Statement, (ii) the Company, Parent and Merger Sub shall, as and to the extent required by applicable Law, promptly prepare an amendment or supplement to the Schedule 13E-3 and (iii) the Company shall cause the Proxy Statement or Parent and the Company shall cause the Schedule 13E-3, as applicable, as so amended or supplemented to be filed with the SEC and the Company shall cause such filing to be disseminated to its stockholders.

 

7.02      Stockholders Meeting.  To the extent not prohibited by any Order, the Company shall, subject to the provisions of this Agreement, (a) conduct a “broker search” in accordance with Rule 14a-13 of the Exchange Act as promptly as reasonably practicable after the date hereof and take all necessary action in accordance with applicable Law and the Company’s governing documents to duly set a record date for the Stockholders Meeting (and the Company will not change the record date without the prior written consent of Parent (such consent not to be unreasonably withheld, conditioned or delayed)), which shall not be earlier than ten (10) Business Days after the date of this Agreement without the prior written consent of Parent, and (b) take all action required under applicable Law, the Company Charter, the Company Bylaws and the applicable requirements of NYSE necessary to promptly and duly call, give notice of, convene and hold, as promptly as reasonably practicable after the SEC confirms that it will not review, or that it has completed its review of, the Proxy Statement and the Schedule 13E-3, a meeting of its stockholders for the purpose of obtaining the Company Stockholder Approvals (including any postponement, recess or adjournment thereof, the “Stockholders Meeting”); provided that the date of the Stockholders Meeting shall be set in consultation with, and be reasonably satisfactory to, Parent; provided, further, that the Company may postpone, recess or adjourn such meeting (and, if requested by Parent on no more than two occasions, taken together with any postponements, recesses or adjournments by the Company, shall for a reasonable period of time not to exceed ten (10) Business Days in the aggregate) (i) to the extent determined by the Board (acting upon the recommendation of the Special Committee) or the Special Committee in good faith after consultation with, and taking into account the advice of, its outside legal counsel, as being required by Law, fiduciary duty or a request from the SEC (or its staff), (ii) to allow reasonable additional time to solicit additional proxies to the extent the Company or Parent, as applicable, reasonably believes necessary to obtain the Company Stockholder Approvals or (iii) if as of the time for which the Stockholders Meeting is originally scheduled (as set forth in the Proxy Statement) there are insufficient Shares represented (either in person or by proxy) and voting to constitute a quorum necessary to conduct the business of the Stockholders Meeting (it being understood that the Company may not postpone, recess or adjourn the Stockholders Meeting more than two (2) times pursuant to clause (ii) or (iii) without Parent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned), and each such postponement or adjournment shall not exceed ten (10) Business Days without Parent’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned)). Subject to Section 7.04, the Proxy Statement shall include the Board Recommendation and the Special Committee Recommendation and the Company shall use its reasonable best efforts to obtain the Company Stockholder Approvals from the Company equityholders entitled to vote thereon.  Notwithstanding anything to the contrary contained in this Agreement, unless this Agreement is validly terminated in accordance with its terms, the Company will submit the approval of this Agreement to its stockholders at the Stockholders Meeting even if the Board (or the Special Committee) has effected an Adverse Recommendation Change.

 

7.03       Access to Information; Confidentiality.

 

(a)         Except (i) as otherwise prohibited by applicable Law or the terms of any Contract or (ii) as would reasonably be expected to result in the loss of any attorney-client, attorney work product or other legal privilege, during the Pre-Closing Period, the Company shall and shall cause the Company Subsidiaries and their respective Representatives to, solely for the purposes of consummating the Transactions or facilitating the post-Closing operations, financing or integration of the Surviving Company with Parent and its Affiliates, and at Parent’s sole expense: (x) provide to Parent and its Representatives reasonable access, during normal business hours and upon reasonable prior notice to the Company by Parent, to the officers, employees, properties and offices and other facilities of the Company and the Company Subsidiaries, and to the material books and records thereof, and (y) furnish promptly to Parent such information concerning the business, properties, Contracts, assets, liabilities and personnel of the Company and the Company Subsidiaries as Parent or its Representatives may reasonably request (other than any of the foregoing that relate to (A) the negotiation and execution of this Agreement, (B) except as expressly provided in Section 7.04, any Acquisition Proposal or any other transactions potentially competing with or alternative to the Transactions or any Adverse Recommendation Change, (C) any deliberations of the Special Committee, whether prior to or after execution of this Agreement or (D) any deliberations of the Board (or any other committee thereof) in connection with the evaluation of the Transactions or any of the foregoing matters, whether prior to or after execution of this Agreement).  In the event that the Company or the Company Subsidiaries are withholding access or information requested by Parent or its Representatives in accordance with clause (i) or (ii) of this Section 7.03(a), the Company shall give notice to Parent of such fact and shall use reasonable best efforts to effect reasonable substitute arrangements to permit reasonable disclosure that does not suffer from any of the foregoing impediments. Any investigation conducted pursuant to the access contemplated by this Section 7.03 shall be conducted in a manner that does not unreasonably interfere with the conduct of the business of the Company and the Company Subsidiaries.  Any access to the properties of the Company and the Company Subsidiaries will be subject to the Company’s or applicable Company Subsidiary’s reasonable security measures and insurance requirements and will not include the right to perform invasive or subsurface testing or any sampling, monitoring or analysis of soil, groundwater, building materials, indoor air or other environmental media.  All notices or requests for access pursuant to this Section 7.03 must be directed to the Representatives of the Company specified by the Special Committee or its Representatives from time to time.

 

(b)         All information obtained by Parent or its Representatives pursuant to this Article VII shall be kept confidential in accordance with the confidentiality agreement, dated January 14, 2026 (the “Confidentiality Agreement”), between Hamblin Watsa Investment Counsel Ltd., a corporation organized under the Laws of Canada (“HWIC”), and the Company.  Notwithstanding the terms of the Confidentiality Agreement, nothing therein shall prevent Parent from being permitted to disclose such information to any Financing Party or prospective Financing Party and rating agencies (and in each case, to their directors, officers, creditor representatives and professional advisors) so long as such Persons (i) agree to be bound by the Confidentiality Agreement as if parties thereto, or (ii) are otherwise subject to other confidentiality arrangements reasonably satisfactory to the Company.  For the avoidance of doubt, each such Person shall constitute a Representative (as defined in the Confidentiality Agreement) of HWIC for all purposes thereunder.

 

7.04       No Solicitation.

 

(a)          Following the execution of this Agreement, the Company shall, and shall cause the Company Subsidiaries to, and shall direct its and their Representatives to, immediately cease and cause to be terminated any solicitation, encouragement, discussions or negotiations that may be ongoing with any Person or its Representatives with respect to an Acquisition Proposal, and shall promptly request the prompt return or destruction of all confidential information previously furnished in connection therewith and promptly terminate all physical and electronic data room access previously granted to any such Person or its Representatives.  Any violation of this Section 7.04 by any of the Company’s Representatives (acting in such Person’s capacity as such) shall be deemed to be a breach of this Section 7.04 by the Company. The Company and the Company Subsidiaries shall not modify, amend, terminate, waive, release or fail to enforce any provisions of any confidentiality agreement (including any standstill provisions (or any similar provisions in any agreement)) to which the Company or any of the Company Subsidiaries is a party relating to an Acquisition Proposal; provided that, notwithstanding anything in this Agreement to the contrary, prior to the Company’s receipt of the Company Stockholder Approvals, the Company and the Company Subsidiaries shall be permitted to modify, amend, terminate, waive, release or fail to enforce any provisions of any such confidentiality agreement or standstill provisions (or similar or related provisions or agreement), if the Board (acting upon the recommendation of the Special Committee) or the Special Committee shall have determined (after consultation with its outside legal counsel) that the failure to take such action is reasonably likely to be inconsistent with the applicable directors’ fiduciary duties under applicable Law.

 

(b)         Except as permitted by this Section 7.04, during the Pre-Closing Period, the Company shall not, and shall cause the Company Subsidiaries not to, and shall direct its and their Representatives not to, (i) solicit, initiate, knowingly encourage or knowingly facilitate any inquiries, proposals or offers with respect to or which would reasonably be expected to lead to the submission of, any Acquisition Proposal, (ii) engage in, continue or otherwise participate in discussions or negotiations regarding, or furnish to any Person any non-public information in connection with, any Acquisition Proposal, or any inquiry, proposal or offer that could reasonably be expected to lead to an Acquisition Proposal, except to notify such Person of the existence of this Section 7.04(b), (iii) except for an Acceptable Confidentiality Agreement, enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or similar agreement relating to any Acquisition Proposal or that would require the Company to abandon, terminate or fail to consummate the Merger (each, an “Acquisition Agreement”), (iv) approve, endorse or recommend any inquiry, proposal or offer that constitutes, or would reasonably be expected to lead to, an Acquisition Proposal or (v) resolve or agree to do any of the foregoing; provided that, if, prior to the earlier to occur of the termination of this Agreement pursuant to Article IX and the Company’s receipt of the Company Stockholder Approvals, the Company receives an Acquisition Proposal that did not result from a material breach of this Section 7.04 by the Company or its Representatives, and the Board (acting upon the recommendation of the Special Committee) or the Special Committee determines in good faith (after consultation with its outside legal counsel and financial advisor) that such bona fide Acquisition Proposal is, or would reasonably be expected to result in, a Superior Proposal and a failure to take the actions contemplated by the following clauses (A) or (B) would be reasonably likely to be inconsistent with the applicable directors’ fiduciary duties under applicable Law, the Company and the Company Subsidiaries and their respective Representatives may, prior to the Company’s receipt of the Company Stockholder Approvals, (A) engage in discussions or negotiations regarding such Acquisition Proposal (or contact such Person to clarify the terms and conditions thereof and otherwise facilitate such Acquisition Proposal or assist such Person and such Person’s Representatives and financing sources) with and (B) furnish information to, or afford access to the business, properties, assets, books, records or personnel, of the Company or any Company Subsidiary to, in each case, the Person making or renewing such Acquisition Proposal and its Representatives, so long as the Company and such Person have executed an Acceptable Confidentiality Agreement; provided, however, that any such information or access has previously been made available to Parent or shall be made available to Parent prior to, or substantially concurrently with, the time such information is made available to such Person.

 

(c)         From and after the date of this Agreement until the earlier of the termination of this Agreement pursuant to Article IX and the Company’s receipt of the Company Stockholder Approvals, the Company shall promptly (and, in any event, within forty-eight (48) hours) after receipt of any Acquisition Proposal, notify Parent of the material terms of such Acquisition Proposal received by the Company, any Company Subsidiary or any of their respective Affiliates, and the identity of the Person or Group making such Acquisition Proposal, and shall provide Parent with unredacted copies of any proposals or offers related thereto, including proposed agreements (or where no such copies are available, a reasonably detailed written description thereof).  From and after the date of this Agreement until the earlier of the termination of this Agreement pursuant to Article IX and the Company’s receipt of the Company Stockholder Approvals, the Company shall, and shall cause the Company Subsidiaries and their respective Affiliates to, keep Parent reasonably informed of the status and terms of, and material changes in, any such Acquisition Proposal. Prior to the earlier of the termination of this Agreement pursuant to Article IX and the Company’s receipt of the Company Stockholder Approvals, the Company shall promptly (and, in any event, within forty-eight (48) hours) following a determination by the Board (acting upon the recommendation of the Special Committee) or the Special Committee that an Acquisition Proposal is a Superior Proposal, to the extent the Board or the Special Committee is permitted to do so pursuant to this Section 7.04, notify Parent of such determination in writing (and, for the avoidance of doubt, following the Company’s receipt of the Company Stockholder Approvals, the Board and the Special Committee shall have no right to make such determination).

 

(d)         Except as permitted by this Section 7.04, the Board and each committee of the Board (including the Special Committee) shall not, and shall not publicly propose to: (i) (A) withdraw or adversely qualify (or modify or amend in a manner adverse to Parent) the Board Recommendation or the Special Committee Recommendation; (B) authorize, approve, adopt or recommend, or declare the advisability of, any Acquisition Proposal; or (C) take any formal action or make any recommendation or public statement in connection with any Acquisition Proposal that is a tender offer or exchange offer other than an unequivocal recommendation against such offer or a temporary “stop, look and listen” communication by the Board or the Special Committee of the type contemplated by Rule 14d-9(f) under the Exchange Act in which the Board, the Special Committee or the Company indicates that the Board Recommendation or the Special Committee Recommendation, as applicable, has not changed (any of the foregoing actions, an “Adverse Recommendation Change”), or (ii) cause or permit the Company or any of the Company Subsidiaries to enter into any Acquisition Agreement or otherwise resolve or agree to do so.

 

(e)        Notwithstanding anything in this Agreement to the contrary, until the earlier to occur of the termination of this Agreement pursuant to Article IX and the Company’s receipt of the Company Stockholder Approvals, if in response to a bona fide Acquisition Proposal made after the date of this Agreement that has not been withdrawn and that did not result from a material breach of this Section 7.04, the Board (acting upon the recommendation of the Special Committee) or the Special Committee determines in good faith (after consultation with its outside legal counsel and financial advisor) that such Acquisition Proposal is a Superior Proposal, then (i) the Board (acting upon the recommendation of the Special Committee) or the Special Committee may make an Adverse Recommendation Change or (ii) only in the case of such determination by the Board (acting upon the recommendation of the Special Committee) or the Special Committee, the Company may terminate this Agreement pursuant to Section 9.01(f)(i) in order to enter into an Acquisition Agreement with respect to such Superior Proposal; provided, however, that the Company shall not terminate this Agreement pursuant to Section 9.01(f)(i) unless prior to, or concurrently with, such termination, the Company pays, or causes to be paid, to Parent the Company Termination Fee.

 

(f)        Prior to effecting an Adverse Recommendation Change to the extent permitted by Section 7.04(e) with respect to a Superior Proposal or terminating this Agreement pursuant to Section 9.01(f)(i) in order to enter into an Acquisition Agreement with respect to a Superior Proposal to the extent permitted by Section 7.04(e) and Section 9.01(f)(i), (i) the Company shall notify Parent in writing that the Board or the Special Committee intends to effect an Adverse Recommendation Change or terminate this Agreement pursuant to Section 9.01(f)(i), as applicable, (ii) the Company shall provide Parent a summary of the material terms and conditions of such Superior Proposal (including the consideration offered therein and the identity of the Person or Group making the Superior Proposal) and an unredacted copy of the Acquisition Agreement, (iii) if requested to do so by Parent, for a period of four (4) Business Days following delivery of such notice, the Company shall discuss and negotiate in good faith, and shall make its Representatives available to discuss and negotiate, with Parent and its Representatives, any proposed modifications to the terms and conditions of this Agreement in such a manner that would obviate the need to effect an Adverse Recommendation Change or terminate this Agreement pursuant to Section 9.01(f)(i), as applicable, and (iv) not earlier than the expiration of such four (4) Business Day period, the Board (acting upon the recommendation of the Special Committee) or the Special Committee shall determine in good faith, after considering the terms of any proposed amendment or modification to this Agreement proposed by Parent during such four (4) Business Day period and in consultation with its outside legal counsel and financial advisor, that such Superior Proposal still constitutes a Superior Proposal (it being understood and agreed that any material changes to the financial or other material terms of a proposal that was previously the subject of a notice hereunder shall require a second notice to Parent as provided above, but with respect to such second notice, references herein to a “four (4) Business Day period” shall be deemed references to a “two (2) Business Day period”; provided that such new notice shall in no event shorten the original four (4) Business Day period).

 

(g)       Notwithstanding anything in this Agreement to the contrary, until the earlier to occur of the termination of this Agreement pursuant to Article IX and the Company’s receipt of the Company Stockholder Approvals, but subject to the Company’s, the Board’s and the Special Committee’s compliance with Section 7.04(h), the Board (acting upon the recommendation of the Special Committee) or the Special Committee may make an Adverse Recommendation Change in response to an Intervening Event if the Board (acting upon the recommendation of the Special Committee) or the Special Committee determines in good faith (after consultation with its outside legal counsel) that the failure to effect an Adverse Recommendation Change in response to such Intervening Event would be reasonably likely to be inconsistent with the applicable directors’ fiduciary duties under applicable Law.

 

(h)          Prior to effecting an Adverse Recommendation Change with respect to an Intervening Event, (i) the Company shall notify Parent in writing that it intends to effect an Adverse Recommendation Change, describing in reasonable detail the reasons for such Adverse Recommendation Change and the material facts and circumstances relating to such Intervening Event, (ii) if requested to do so by Parent, for a period of four (4) Business Days following delivery of such notice, the Company shall discuss and negotiate in good faith, and shall make its Representatives available to discuss and negotiate, with Parent and its Representatives, any proposed modifications, amendments or revisions to the terms and conditions of this Agreement in such a manner that would obviate the need to effect such Adverse Recommendation Change and (iii) not earlier than the expiration of such four (4) Business Day period, the Board (acting upon the recommendation of the Special Committee) or the Special Committee shall determine, after considering the terms of any amendment or modification to this Agreement proposed by Parent during such four (4) Business Day period and in consultation with its outside legal counsel, that the failure to effect an Adverse Recommendation Change would still be reasonably likely to be inconsistent with the applicable directors’ fiduciary duties under applicable Law.

 

(i)         Nothing contained in this Agreement shall prevent the Company or the Board (acting upon the recommendation of the Special Committee) or the Special Committee from (i) issuing a “stop, look and listen” communication pursuant to Rule 14d-9(f) under the Exchange Act or (ii) making a statement contemplated by Item 1012(a) of Regulation M-A under the Exchange Act or otherwise complying with Rule 14d-9 and Rule 14e-2 under the Exchange Act with respect to an Acquisition Proposal.  For the avoidance of doubt, a factually accurate public statement that only describes the Company’s receipt of an Acquisition Proposal and the operation of this Agreement with respect thereto shall not, in and of itself, constitute an Adverse Recommendation Change.

 

(j)           For purposes of this Agreement:

 

(i)          “Acquisition Proposal” means any proposal, offer, written inquiry or indication of interest (whether or not in writing), from any Person or Group, other than Parent, Merger Sub, the Equity Investor or the Security Holders, relating to (A) any direct or indirect purchase or other acquisition, in a single transaction or a series of related transactions, of (1) assets constituting twenty percent (20%) or more of the consolidated assets of the Company and the Company Subsidiaries, taken as a whole (based on the fair market value thereof, as determined by the Board or any authorized committee thereof (including the Special Committee)), including an acquisition of twenty percent (20%) or more of such consolidated assets of the Company and the Company Subsidiaries indirectly through the acquisition of equity interests of a Company Subsidiary, or (2) twenty percent (20%) or more of the total outstanding equity securities (by vote or economic interests) of the Company; (B) any tender offer or exchange offer that, if consummated, would result in any Person beneficially owning, or having the right to acquire beneficial ownership of, twenty percent (20%) or more of the total outstanding equity securities of the Company (by vote or economic interests); (C) any direct or indirect merger, consolidation, business combination, recapitalization, share exchange, joint venture, restructuring, reorganization, liquidation, dissolution, lease, exchange, license or other similar transaction involving the Company or any of the Company Subsidiaries (other than any such transaction among the Company and the Company Subsidiaries) pursuant to which any such Person or Group would beneficially hold or control, directly or indirectly, twenty percent (20%) or more of the total outstanding equity securities (by vote or economic interests) of the Company or the surviving or resulting entity of such transaction or twenty percent (20%) or more of the consolidated assets of the Company and the Company Subsidiaries, taken as a whole (based on the fair market value thereof, as determined by the Board or any authorized committee thereof (including the Special Committee)); or (D) any combination of the foregoing.

 

(ii)        “Intervening Event” means a material event, fact, development or occurrence (other than any event, development or occurrence resulting from a breach of this Agreement by the Company) with respect to the Company and the Company Subsidiaries or the business of the Company and the Company Subsidiaries, in each case taken as a whole, that (a) is neither known, nor reasonably foreseeable (with respect to magnitude or material consequences), by the Board or the Special Committee, as applicable, as of or prior to the execution and delivery of this Agreement and (b) first occurs, arises or becomes known to the Board or the Special Committee after the execution and delivery of this Agreement and on or prior to the date of the Company Stockholder Approvals; provided that (A) any event, fact, development or occurrence that involves or relates to an Acquisition Proposal or a Superior Proposal or any inquiry or communications or matters relating thereto, (B) the fact that the Company meets or exceeds or fails to meet or exceed, any internal, analysts’ or public estimates, expectations, projections or forecasts of the Company’s revenue, earnings or other financial performance or results of operations for any period or (C) any changes or lack thereof after the date hereof in the market price or trading volume of the Shares, individually or in the aggregate, will not be deemed to constitute an Intervening Event (it being understood that, with respect to clauses (B) and (C) the underlying facts or occurrences giving rise to meeting or exceeding such estimates, expectations, projections or forecasts or such changes or lack thereof in market price or trading volume may be taken into account in determining whether there has been an Intervening Event, to the extent not otherwise excluded from this definition).

 

(iii)        “Superior Proposal” means any bona fide written Acquisition Proposal received after the date of this Agreement that did not result from a material breach of Section 7.04 that is on terms that the Board (acting upon the recommendation of the Special Committee) or the Special Committee determines in good faith (after consultation with its outside legal counsel and financial advisor) and after taking into account the legal, financial, regulatory and other aspects of such Acquisition Proposal, (x) is reasonably capable of being consummated in accordance with its terms and (y) if consummated would result in a transaction more favorable to the Public Stockholders, from a financial point of view, than the Merger and the Transactions (taking into account any legal, regulatory, financial, timing, certainty of closing, financing and all other aspects of such proposal that the Board (or the Special Committee) considers relevant and any proposed amendment, adjustment, revision or other modification proposed by Parent pursuant to Section 7.04(f)).  For purposes of the reference to “Acquisition Proposal” in this definition, all references to “twenty percent (20%)” therein shall be deemed to be references to “fifty percent (50%)”.

 

7.05       Directors’ and Officers’ Indemnification and Insurance.

 

(a)       From and after the Effective Time, the Surviving Company and its Subsidiaries shall, and Parent shall cause the Surviving Company and its Subsidiaries to, to the fullest extent permitted under the DGCL, honor and fulfill in all respects the obligations of the Company and the Company Subsidiaries under any indemnification agreements in effect as of the date hereof and made available to Parent between the Company or any Company Subsidiary, on the one hand, and any of their respective present or former directors and officers (collectively, the “Indemnified Parties”), on the other hand.  In addition, the certificate of incorporation and bylaws (or similar organizational documents) of the Surviving Company shall contain provisions no less favorable with respect to exculpation and indemnification than are set forth in the Company Charter or the Company Bylaws on the date hereof, which provisions shall not be amended, repealed or otherwise modified for a period of six (6) years from the Effective Time in any manner that would affect adversely the rights thereunder of individuals who, at or prior to the Effective Time, were directors or officers of the Company or applicable Company Subsidiary, except as required by applicable Law.

 

(b)          For a period of six (6) years after the Effective Time, Parent shall, and shall cause the Surviving Company to, to the fullest extent permitted under applicable Law, indemnify and hold harmless each Indemnified Party against all costs and expenses (including reasonable and documented attorneys’ fees), judgments, fines, losses, claims, damages, liabilities and settlement amounts paid in connection with any Action (whether arising before or after the Effective Time), whether civil, criminal, administrative or investigative, arising out of or relating to any action or omission in their capacity as an officer or director of the Company or any Company Subsidiary, whether occurring at or before the Effective Time; provided that in the event that any claim for indemnification is asserted or made within such six (6)-year period, all rights to indemnification in respect of such claim shall continue until the disposition of such claim.  To the fullest extent permitted by Law, Parent shall, and shall cause the Surviving Company to, pay all reasonable and documented expenses (including reasonable and documented attorneys’ fees) of each Indemnified Party in advance of the final disposition of any such Action, subject to receipt of an undertaking to repay such advances if it is ultimately determined in accordance with applicable Law that such Indemnified Party is not entitled to indemnification.  In the event of any such Action, Parent acknowledges, and shall cause the Surviving Company to acknowledge, that the Indemnified Parties shall be entitled to retain outside counsel selected by such Indemnified Party, and the Surviving Company, Parent and their respective Affiliates shall not settle, compromise or consent to the entry of any judgment in any pending or threatened Action to which an Indemnified Party is a party (and in respect of which indemnification could be sought by such Indemnified Party hereunder), unless such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such Action or such Indemnified Party otherwise consents thereto in writing.

 

(c)        Prior to the Effective Time, the Company shall obtain “tail” insurance policies with respect to directors’ and officers’ liability insurance for claims arising from facts or events that occurred at or prior to the Effective Time on terms with respect to coverage, deductibles and amounts no less favorable than those of such policy in effect on the date hereof for the six (6)-year period following the Effective Time. The Surviving Company shall (and Parent shall cause the Surviving Company to) maintain such “tail” policy in full force and effect for a period of no less than six (6) years after the Effective Time and continue to honor its obligations thereunder.

 

(d)         In the event Parent or the Surviving Company or any of their respective successors or assigns (i) consolidates or amalgamates with or merges into any other Person and shall not be the continuing or surviving company or entity of such consolidation, amalgamation or merger or (ii) transfers all or substantially all of its assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of Parent or the Surviving Company, as the case may be, shall succeed to the obligations set forth in this Section 7.05.

(e)          The provisions of this Section 7.05 are intended to be for the benefit of, and shall be enforceable by, each Indemnified Party, and his or her heirs and legal representatives, each of whom shall be a third-party beneficiary under this Section 7.05, effective as of the Closing.

 

(f)          The rights of the Indemnified Parties pursuant to this Section 7.05 shall be in addition to, and not in substitution for, any other rights that such Indemnified Parties may have pursuant to (i) the Company Charter and the Company Bylaws; (ii) the organizational documents of the Company Subsidiaries; (iii) any and all indemnification agreements entered into with the Company or any of the Company Subsidiaries; or (iv) applicable Law (whether at Law or in equity).

7.06       Further Action.

 

(a)        Upon the terms and subject to the conditions set forth in this Agreement, Parent, Merger Sub and the Company agree to use reasonable best efforts to take, or cause to be taken (including by directing their respective Affiliates to take), and to do, or cause to be done (including by directing their respective Affiliates to do), all actions necessary, proper or advisable to consummate, as promptly as reasonably practicable, the Transactions, including using reasonable best efforts to (i) obtain all authorizations, consents, Orders, approvals, licenses, permits, expirations or terminations of waiting periods, and waivers of, and giving all notices, reports and other filings to, all Governmental Authorities that may be or become necessary for their execution and delivery of, and the performance of their obligations pursuant to, this Agreement and the consummation of the Transactions, including the Required Regulatory Approvals and (ii) provide such other information to any Governmental Authority as such Governmental Authority may lawfully and reasonably request in connection therewith.  Each party hereto shall execute and deliver any instruments necessary or advisable to promptly obtain such authorizations, consents, Orders, approvals, licenses, permits and waivers to consummate the Transactions.  In furtherance of the foregoing, each party agrees to make, or cause to be made, as promptly as reasonably practicable following the date of this Agreement, any appropriate filings, and notifications or draft submissions, pursuant to any Antitrust Law or Foreign Investment Law with respect to the Transactions.  The parties shall supply as promptly as reasonably practicable thereafter to the appropriate Governmental Authorities any additional information and documentary material that may be requested by such Governmental Authorities related to the Transactions.  Parent shall pay all filing fees to any Governmental Authority in order to make such filings or obtain any such authorizations, consents, Orders, approvals, licenses, permits and waivers.

 

(b)          Without limiting the generality of the undertaking of Parent and Merger Sub pursuant to this Section 7.06, each of Parent and Merger Sub shall, and shall direct each of its Affiliates to, use reasonable best efforts to obtain all consents under any Antitrust Law or Foreign Investment Law and avoid or eliminate each and every impediment under any Antitrust Law or Foreign Investment Law that may be asserted by any Governmental Authority or any other Person so as to enable the parties hereto to consummate the Transactions as promptly as practicable and in any event prior to the Outside Date, including (i) agreeing to conditions imposed by any Governmental Authority on the Company or any Company Subsidiary and proposing, negotiating, committing to and effecting, by consent decree, hold separate orders, mitigation agreement or otherwise, the sale, divestiture, license or other disposition of the assets, properties or businesses of the Company or any Company Subsidiary, (ii) accepting any operational restrictions, or otherwise proposing, negotiating, taking or committing to take actions that limit the Company’s or any Company Subsidiary’s freedom of action with respect to, or Parent’s ability to retain or freely operate, any of the assets, properties, licenses, rights, operations or businesses to be acquired by Parent pursuant to this Agreement and (iii) entering into any other arrangements with respect to the Company or any Company Subsidiary, in each case, as are necessary or may be required in order to avoid the entry of, and the commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, stay, temporary restraining order or other Order that would otherwise have the effect of materially delaying, materially impeding or preventing the consummation of the Transactions; provided, however, that none of Parent, Merger Sub or their respective Affiliates shall be required to (A) propose, negotiate, commit to, effect or agree to any action, restriction, condition, limitation, requirement or remedy pursuant to this Section 7.06(b) that would, individually or in the aggregate, reasonably be expected to have a material adverse effect on the Company and the Company Subsidiaries, taken as a whole or (B) propose, negotiate, commit to, effect or agree to any action, restriction, condition, limitation, requirement or remedy pursuant to this Section 7.06(b) with respect to the assets, properties or businesses of Parent or its Affiliates.  Each of Parent and Merger Sub agrees not to, and shall direct each of its Affiliates not to, (x) extend, directly or indirectly, any waiting period under any Antitrust Law or Foreign Investment Law or enter into any agreement with a Governmental Authority to delay or not to consummate the Merger or the other Transactions or (y) pull and refile any filing made under any Antitrust Law or Foreign Investment Law, in the case of each of clauses (x) and (y) except with the prior written consent of the Company, which consent shall not be unreasonably withheld, conditioned or delayed.  In addition, each of Parent and Merger Sub shall, and shall direct each of its Affiliates to, defend any Action (including by defending through litigation) in order to avoid entry of, or to have vacated or terminated, any Order (whether temporary, preliminary or permanent) that would prevent or materially impede, interfere with, hinder or delay the consummation of the Merger or the other Transactions.  Notwithstanding the foregoing, nothing in this Section 7.06 shall require the Company or any Company Subsidiary to take or agree to take, or refrain from taking, any action with respect to its assets, properties, businesses or operations (including any action described in this Section 7.06(b)) unless such action is conditioned upon clearance under the Required Regulatory Approvals and consummation of the Merger and the other Transactions and no actions taken pursuant to this Section 7.06 shall be considered for purposes of determining whether a Material Adverse Effect has occurred or would reasonably be expected to occur.

 

(c)       Parent and Merger Sub shall not, and shall direct their respective Affiliates not to, enter into any agreement or transaction (including any acquisition, purchase, merger, consolidation or other transaction) that would reasonably be expected to make it materially more difficult, or to materially increase the time required, to: (i) consummate the Merger and the Closing; (ii) obtain the authorizations, consents, Orders, approvals, licenses permits and waivers required under any Antitrust Law or Foreign Investment Law applicable to the Transactions; (iii) avoid the entry of, avoid the commencement of litigation seeking the entry of, or effect the dissolution of, any injunction, stay, temporary restraining order or other Order that would materially delay, materially impede or prevent the consummation of the Transactions; or (iv) obtain the Required Regulatory Approvals.

 

(d)         Subject to applicable Laws, the Company and Parent shall use (and shall direct their respective Affiliates to use) reasonable best efforts to (i) promptly cooperate in all respects with each other in connection with any filing or submission with a Governmental Authority in connection with the Transactions and in connection with any investigation or other inquiry by or before a Governmental Authority relating thereto and (ii) keep each other reasonably apprised of the content and status of any communications with, and communications from, any Governmental Authority with respect to the Transactions and shall permit the other party to review in advance (and to consider in good faith any comments made by the other party in relation to) any proposed material communication by such party to any Governmental Authority relating to such matters.  None of the parties to this Agreement shall agree to participate in any meeting, telephone call or discussion with any Governmental Authority in respect of any submissions, filings, investigation (including any settlement of the investigation), litigation or other inquiry relating to the matters that are the subject of this Agreement unless it consults with the other parties a reasonable amount of time in advance and, unless prohibited by such Governmental Authority or applicable Law, gives the other parties the opportunity to attend and participate at such meeting, telephone call or discussion.  The parties will coordinate and cooperate fully with each other in exchanging such information and providing such assistance as any other party may reasonably request in connection with the foregoing and in seeking early termination of any applicable waiting periods, if available.  The parties shall provide each other with copies of all correspondence, filings or communications between them or any of their Representatives, on the one hand, and any Governmental Authority or members of its staff, on the other hand, with respect to this Agreement and the Transactions; provided, however, that each party may, as it deems advisable and necessary, reasonably designate any competitively sensitive materials provided to the other party as “Outside Counsel Only Material” and may redact the materials as necessary to (i) remove references concerning the valuation of the Company, (ii) comply with contractual arrangements and (iii) address reasonable attorney-client or other privilege or confidentiality concerns.

 

(e)          Subject to the proviso to this sentence, nothing in this Section 7.06 or any other provision of this Agreement shall require Parent, Merger Sub or any of their respective Affiliates to take or agree to take, or to refrain from taking, any action contemplated by Section 7.06(b)(i)-(iii), with respect to the Equity Investor or any Affiliates of the Equity Investor, Parent or Merger Sub, other than with respect to the Company or the Company Subsidiaries or the business, operations or ownership of any of the Company or the Company Subsidiaries; provided that nothing in this Section 7.06(e) shall qualify or limit in any respect the obligations of Parent and Merger Sub to make any necessary filings with or submissions to, or supply information or documentation to, or engage in communications with, Governmental Authorities as required by this Section 7.06. Parent shall use reasonable best efforts to cause the Equity Investor and any of its Affiliates to make any (i) necessary filings with or submissions to, or supply information or documentation to, or engage in communications with, Governmental Authorities as may be required by this Section 7.06 as if they were “Parent” hereunder and (ii) determinations required by, and in accordance with, Section 8.01(c) of the Parent Disclosure Letter, and any failure by the Equity Investor or any of its Affiliates to make such filings or submissions, supply such information or documentation, engage in such communications or make such determinations shall be deemed for all purposes of this Agreement to be a failure by Parent to comply with its obligations under this Agreement and a material breach of this Agreement by Parent.

 

7.07      Obligations of Parent and Merger Sub. Parent hereby guarantees the due, prompt and faithful payment, performance and discharge by Merger Sub of, and the compliance by Merger Sub with, all of the covenants, agreements, obligations and undertakings of Merger Sub under this Agreement in accordance with the terms of this Agreement, and covenants and agrees to take all actions necessary or advisable to cause Merger Sub to pay, perform and discharge its obligations hereunder.  During the Pre-Closing Period, Parent and Merger Sub shall not engage in any activity of any nature except any activity related to the Transactions or activities reasonably ancillary thereto.

 

7.08       Public Announcements.  The initial press release relating to this Agreement shall be a joint press release, the text of which has been agreed to by each of Parent and the Company.  Thereafter, except with respect to any release of public statement expressly permitted by and in accordance with Section 7.04 or relating to a termination pursuant to Section 9.01 or Section 9.03, each of Parent, Merger Sub and the Company shall consult (and shall cause their respective Affiliates to consult) with the other parties hereto before issuing any press release or otherwise making any public statements with respect to this Agreement or any of the Transactions, except to the extent public disclosure is required by applicable Law or the rules or regulations of NYSE or any United States national securities exchange on which the Shares are then traded, in which case the issuing party shall use reasonable best efforts to consult with the other party before issuing any press release or making any such public statements.  Notwithstanding the foregoing or the terms of the Confidentiality Agreement, each party hereto may, without such consultation, make any public statement in response to inquiries from the press, analysts, investors or those attending industry conferences, make internal announcements to employees and make disclosures in documents (including exhibits and all other information incorporated therein) required to be filed with or furnished to the SEC or the Canadian securities regulatory authorities, so long as such statements are consistent in all respects with previous press releases, public disclosures or public statements made jointly by the parties hereto (or individually in accordance with this Section 7.08).

 

7.09       Financing Cooperation.

 

(a)          During the Pre-Closing Period, the Company shall, and shall cause the Company Subsidiaries to, and each of them shall use their reasonable best efforts to cause their respective Representatives to, use their reasonable best efforts to provide customary cooperation, to the extent reasonably requested by Parent in writing and necessary for the obtaining and arranging of debt financing (if any, including the Existing Notes Offer) in connection with the Merger (any such financing, the “Debt Financing”), including:

 

(i)        using reasonable best efforts to prepare and timely file any filings or reports required to be filed by the Company under the Exchange Act;

 

(ii)      using reasonable best efforts to cause management of the Company, with appropriate seniority and expertise, to assist in preparation and participate in a reasonable number of rating agency presentations, road shows, investor meetings and due diligence sessions with Financing Parties, in each case (A) in connection with the Debt Financing and (B) at reasonable times and with reasonable advance notice;

 

(iii)        (A) using reasonable best efforts to provide assistance with the preparation of materials for rating agency presentations, high-yield roadshow presentations and offering memoranda, bank information memoranda, private placement memoranda, bridge teasers, syndication memoranda, customary offering documents, lender presentations and other customary marketing materials reasonably required in connection with the Debt Financing (collectively, the “Debt Marketing Materials”), including using reasonable best efforts to furnish (x) records, data or other information reasonably requested by the Financing Parties to support any historical statistical information or claims relating to the Company appearing in any offering memoranda constituting Debt Marketing Materials and (y) executed certificates of the chief financial officer (or other comparable officer) of the Company reasonably requested by the Financing Parties with respect to historical financial information or historical financial metrics, in each case relating to the Company and derived from the Company’s historical books and records, included in any offering memoranda constituting Debt Marketing Materials, (B) using reasonable best efforts to provide reasonable cooperation with the due diligence efforts of the Financing Parties to the extent reasonable and customary and (C) providing customary authorization letters with respect to the Company authorizing the distribution of information to prospective lenders and investors (including customary 10b-5 and material non-public information representations) (only to the extent such authorization letters contain customary disclaimers for the Company, its Affiliates and their respective Representatives with respect to responsibility for the use or misuse of the contents thereof);

 

(iv)        (A) using reasonable best efforts to obtain documents and deliver notices reasonably requested by Parent relating to the redemption, purchase or exchange (within the time periods required by the relevant governing agreement), in each case as and to the extent provided in Section 7.10, of the Existing Notes and the release of related guarantees, including the Notes Payoff Documents provided for in Section 7.10 (it being understood and agreed that any redemption, purchase or exchange or release is (and shall be) contingent upon the occurrence of the Closing and no actions shall be required which would obligate the Company or any Company Subsidiary to complete such redemption, purchase or exchange or release prior to the occurrence of the Closing) and (B) promptly, and in any event no later than four (4) Business Days prior to the Closing, providing to the Financing Parties all documentation and other information required by a Governmental Authority in connection with the Debt Financing under applicable “know-your-customer” and Anti-Money Laundering Laws, including the USA PATRIOT Act, Title III of Pub. L.107-56 (signed into law October 26, 2001) and the Customer Due Diligence Requirements for Financial Institutions issued by the U.S. Department of Treasury Financial Crimes Enforcement Network under the Bank Secrecy Act (such rule published May 11, 2016 and effective May 11, 2018), in each case, as requested at least ten (10) Business Days prior to the Closing Date;

 

(v)         using reasonable best efforts to (A) assist in the preparation, execution and delivery of definitive financing documents, including any credit agreement, indentures, supplemental indentures, notes, guarantees and collateral documents and pledge and security documents in connection with the Debt Financing (including executing and delivering a solvency certificate from the chief financial officer or treasurer (or other comparable officer) of the Surviving Company (in a customary form)), and (B) facilitate the pledging of, granting of security interests in and obtaining perfection of any liens on assets of the Company pledged as collateral in connection with the Debt Financing, but in no event shall any of the items described in the foregoing clauses (A) and (B) be effective prior to the Closing;

 

(vi)      using reasonable best efforts to take all corporate, limited liability company, partnership or other similar actions reasonably requested by Parent to permit the consummation of the Debt Financing; provided that no such actions shall be required to be effective prior to the Closing; and

 

(vii)      using reasonable best efforts to cause KPMG LLP to (A) furnish to the Financing Parties customary consents and comfort letters, together with drafts of such comfort letters (including, if applicable, “negative assurance” comfort and change period comfort) that such independent auditors of the Company are prepared to deliver upon “pricing” and “closing” of any high-yield bonds being issued as all or a portion of the Debt Financing, and deliver such comfort letters upon the “pricing” and “closing” of any such high-yield bonds, with respect to financial information relating to the Company, as reasonably requested by Parent or the Financing Parties, as necessary or customary for financings similar to the Debt Financing and (B) attend accounting due diligence sessions.

 

(b)        Notwithstanding anything to the contrary in this Agreement, none of the Company nor any Company Subsidiaries nor any of their respective Representatives shall be required to take or permit the taking of any action pursuant to this Section 7.09 or pursuant to Section 7.10 that could:  (i) require the Company or any Company Subsidiary or any of their respective Affiliates or any Persons who are officers or directors of any such entity to pass resolutions or consents to approve or authorize the Debt Financing or any certificate, document, instrument, agreement or action in connection with the Debt Financing prior to Closing or enter into, execute or deliver any certificate, document, instrument or agreement or agree to any change or modification of any existing certificate, document, instrument or agreement in connection with the Debt Financing (except (I) any certificate of the chief financial officer of the Company described in clause (a)(iii)(A)(y) above that is required to be delivered upon “pricing” and closing of any high yield bonds, (II) the authorization letters set forth in clause (a)(iii)(C) above, (III) the redemption or exchange documents and notices set forth in clause (a)(iv)(A) above, (IV) the “know-your-customer” and anti-money laundering documents contemplated by clause (a)(iv)(B) above), (V) any certificate of an officer of the Company reasonably requested by Parent’s counsel in connection with the delivery of any legal opinions such counsel may be required to deliver (including the certificates set forth in clauses (a)(iii) and (a)(v) above) and (VI) the representation letters required by the Company’s auditors in connection with the delivery of “comfort letters” set forth in clause (a)(vii) above), (ii) cause any representation, warranty, covenant or agreement in this Agreement to be breached by the Company or any of its Affiliates, or require the Company to waive or amend any terms of this Agreement, (iii) require the Company or any of its Affiliates to pay any commitment or other similar fee or incur any other expense, liability or obligation or otherwise incur any obligation under any agreement, certificate, document or instrument (except to the extent that such fees, expenses, obligations or liabilities are subject to and conditioned upon the occurrence of Closing or paid by Parent), (iv) require the Company or any Company Subsidiary to execute and deliver any pledge or security documents or certificates or documents or instruments relating to the provision of collateral, or otherwise pledge any assets as collateral, other than those that become effective as of or after the Closing, (v) reasonably be expected to cause any director, officer, employee or equityholder of the Company or any of its Affiliates to incur any personal liability, (vi) reasonably be expected to conflict with the organizational documents of the Company or any of its Affiliates or any applicable Law, (vii) reasonably be expected to result in any violation or breach of, or a default (with or without notice, lapse of time, or both) under, any Material Contract to which the Company or any of its Affiliates is a party, (viii) provide access to or disclose information that the Company or any of its Affiliates reasonably determines would jeopardize any attorney-client privilege or other applicable privilege or protection of the Company or any of its Affiliates, (ix) unreasonably interfere with the ongoing business or operations of the Company or any of its Affiliates, (x) require the Company or any Company Subsidiary to provide or prepare (A) any financial statements (including any “flash” numbers or preliminary results) other than those in the Exchange Act reports contemplated by Section 7.09(a)(i), (B) any pro forma financial statements, pro forma adjustments, projections, an as-adjusted capitalization table, information related to synergies, cost savings, ownership or other post-Closing adjustments, or other prospective information, (C) any description of all or any component of any financing undertaken by Parent in connection with the Transactions, including any such description to be included in liquidity and capital resources disclosure or any “description of notes”, (D) any risk factors relating to all or any component of any financing undertaken by Parent in connection with the Transactions, (E) any “segment reporting”, subsidiary financial statements or any information of the type required by Rule 3-09, Rule 3-10 or Rule 3-16 of Regulation S-X (other than those in the Exchange Act reports contemplated by Section 7.09(a)(i) to the extent required as a result of the Existing Notes), (F) any information required by Regulation S-K Item 402 or any other information customarily excluded from an offering memorandum for private placements of non-convertible high-yield bonds pursuant to Rule 144A (other than any information required to be included in the Exchange Act reports contemplated by Section 7.09(a)(i)) or (G) any information that is not available from the Company’s or the Company Subsidiaries’ financial records prepared in the ordinary course of business or (xi) require the Company or any Company Subsidiary to (A) register any new securities (including any guarantees thereof) under the Securities Act, (B) list any new securities on any securities exchange or (C) file a registration statement under the Securities Act or the Exchange Act.  Nothing contained in this Section 7.09, in Section 7.10 or otherwise in this Agreement shall require the Company or any of its Affiliates, prior to the Closing, to be an issuer or other obligor with respect to the Debt Financing or any other indebtedness.  In no event shall any new debt securities issued pursuant to this Section 7.09 or Section 7.10 be required to be registered under the Securities Act or listed on any securities exchange prior to Closing.  Parent shall, promptly on request by the Company, reimburse the Company and each of its Affiliates for all out-of-pocket costs incurred by them or their respective Representatives in connection with the cooperation pursuant to this Section 7.09, in connection with any amendment to the Existing Credit Agreement that is effective as of the date hereof or in connection with any transactions or other actions pursuant to Section 7.10 and shall reimburse, indemnify and hold harmless the Company and its Affiliates and their respective Representatives from and against any and all losses, damages, claims, costs or expenses suffered or incurred by them in connection with the arrangement of the Debt Financing, any action taken by any of them at the request of Parent or its Representatives pursuant to this Section 7.09 or in connection with any amendment to the Existing Credit Agreement that is effective as of the date hereof or any transaction or other action taken by any of them under any of Sections 7.10(a) through (d) and, in each case, any information used in connection therewith, except to the extent that any of the foregoing arises from (x) the bad faith, gross negligence or willful misconduct of, or material breach of this Agreement by, the Company or any of their respective Representatives, as applicable, or (y) information provided by the Company or any of their respective Representatives, as applicable, that, at the time the statements were made, were actually known by the person seeking indemnification to contain any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, in each case, as determined by a court of competent jurisdiction in a final and non-appealable decision.

 

(c)         Notwithstanding anything to the contrary in this Agreement, the Company will be deemed to be in compliance with this Section 7.09 and with Section 7.10, and the Company’s breach of any of the covenants required to be performed by it under this Section 7.09 and Section 7.10 shall not constitute a breach or failure to perform by the Company, for purposes of Section 8.02(b).

 

(d)         The Company shall notify Parent if any information in respect of the Company or any Company Subsidiary provided to Parent, to the Knowledge of the Company, when taken as a whole and in light of the circumstances under which such statements were made, contains any material misstatement of fact or omits to state any material fact necessary to make such information not materially misleading.

 

(e)         The Company hereby consents to the use of its logos, names and trademarks in a non-trademark manner in connection with the Debt Financing; provided that such logos, names and trademarks are used solely in a manner that is not intended to or reasonably likely to harm or disparage the Company or any Company Subsidiary or the reputation or goodwill of the Company or any Company Subsidiary.

 

7.10       Financing Matters.

 

(a)        During the Pre-Closing Period, if requested by Parent, the Company shall, with respect to the Existing Notes Indenture, use reasonable best efforts to (i) issue or cause to be issued one or more notices of optional redemption or similar notices (each of which shall provide that the redemption of the Existing Notes shall be contingent upon the Closing) in respect of all of any series of then-outstanding Existing Notes under the Existing Notes Indenture pursuant to the requisite provisions of the Existing Notes Indenture and (ii) take such other actions as it determines to be necessary or advisable (or that Parent reasonably requests) to facilitate redemption of such Existing Notes at and contingent upon the Closing, including the delivery, taking or making of all required documents or actions (other than the deposit of funds in accordance with this paragraph or the payment of any fees, expenses or other amounts) under the Existing Notes Indenture to effect the redemption of such Existing Notes pursuant to the requisite provisions of the Existing Notes Indenture; provided that, in no event shall this Section 7.10 require the Company or any Company Subsidiary to cause any redemption or termination of such Existing Notes or the Existing Notes Indenture prior to the occurrence of the Closing Date (or, if the redemption cannot be effected on the Closing Date in compliance with the Existing Notes Indenture, then the earliest date possible after the Closing Date in compliance with the Existing Notes Indenture) (such notice and redemption documents, the “Notes Payoff Documents”).  No later than the date of redemption, Parent shall deposit with the trustee under the Existing Notes Indenture the amount of funds required to effect such redemption.  Any notices delivered pursuant to this Section 7.10(a) and other related documents prepared by or on behalf of the Company in connection therewith shall be subject to the prior review of, and opportunity for comment by, Parent and its counsel, and the Company shall consider in good faith any comments provided by Parent or its counsel.  Notwithstanding the foregoing, neither the Company nor any Company Subsidiary shall be required pursuant to this Section 7.10(a) to execute and deliver any document or instrument (or cause any document or instrument to be executed or delivered) not conditioned on or delivered substantially concurrently with the occurrence of the Closing.

 

(b)          Prior to the Closing Date, the Company shall, with respect to the Series A Certificate of Designations, use reasonable best efforts to (i) issue or cause to be issued one or more notices of optional redemption, repurchase or similar notices (each of which shall provide that the redemption or repurchase of the Company Series A Preferred Stock shall occur immediately prior to the Closing) in respect of all of the then-outstanding Company Series A Preferred Stock under the Series A Certificate of Designations pursuant to the requisite provisions of the Series A Certificate of Designations and (ii) take such other actions as it determines to be necessary or advisable (or that Parent reasonably requests) to facilitate the redemption or repurchase of such Company Series A Preferred Stock immediately prior to the Closing, including the delivery, taking or making of all required documents or actions (other than the deposit of funds in accordance with this paragraph or the payment of any fees, expenses or other amounts) under the Series A Certificate of Designations to effect the redemption of such Company Series A Preferred Stock pursuant to the requisite provisions of the Series A Certificate of Designations; provided that, in no event shall this Section 7.10 require the Company or any Company Subsidiary to cause any redemption, repurchase or termination of such Company Series A Preferred Stock or the Series A Certificate of Designations prior to the occurrence of the Closing Date (or, if the redemption cannot be effected on the Closing Date in compliance with the Series A Certificate of Designations, then the earliest date possible after the Closing Date in compliance with the Certificate of Designations).  No later than the date of repurchase or redemption, the Company or the Surviving Company, as applicable, shall pay the holders of the Company Series A Preferred Stock the amount of funds required to effect such repurchase or redemption.  Any notices delivered pursuant to this Section 7.10(b) and other related documents prepared by or on behalf of the Company in connection therewith shall be subject to the prior review of, and opportunity for comment by, Parent and its counsel, and the Company shall consider in good faith any comments provided by Parent or its counsel.  Notwithstanding the foregoing, neither the Company nor any Company Subsidiary shall be required pursuant to this Section 7.10(b) to execute and deliver any document or instrument (or cause any document or instrument to be executed or delivered) not conditioned upon the satisfaction or, to the extent permitted by Law, waiver of the conditions to Closing set forth in Article VIII or delivered immediately prior to the Closing.

 

(c)          During the Pre-Closing Period, the Company shall with respect to the Existing Notes and the Existing Notes Indenture:

 

(i)          if requested by Parent, use reasonable best efforts to commence a consent solicitation with respect to such Existing Notes to seek to obtain the requisite consents from holders of such Existing Notes needed to amend, eliminate or waive certain sections of the Existing Notes Indenture specified by Parent (each, an “Existing Notes Consent Solicitation”) on such terms and conditions, including with respect to consent fees, that are proposed by Parent and permitted by applicable Law, the Existing Notes Indentures, the organizational documents and other contracts of the Company and the Company Subsidiaries; provided that (x) Parent shall be responsible for preparation of the necessary consent solicitation statement, supplemental indenture and other related documents in connection with such Existing Notes Consent Solicitation (the “Existing Notes Consent Solicitation Documents”) and the payment of all fees, expenses and other amounts relating to any Existing Notes Consent Solicitation; and (y) Parent shall consult with the Company and afford the Company and its counsel a reasonable opportunity to review and comment on the Existing Notes Consent Solicitation Documents and Parent will give reasonable consideration to the comments, if any, raised by the Company.  The Company shall, and shall use its reasonable best efforts to cause its Representatives to, provide all cooperation reasonably requested by Parent in connection with an Existing Notes Consent Solicitation, including appointing one or more solicitation agents selected by Parent; provided that (for the avoidance of doubt) Parent will pay all fees and expenses of such solicitation agents.  The Company shall waive any of the conditions to any Existing Notes Consent Solicitation as may be reasonably requested by Parent (other than the condition that any proposed amendments set forth therein shall not become operative until the Closing), so long as such waivers would not cause such Existing Notes Consent Solicitation to violate applicable Law, including SEC rules and regulations, or the Existing Notes Indentures, organizational documents or any material contract of the Company and the Company Subsidiaries, and to not, without the prior written consent of Parent, waive any condition to any Existing Notes Consent Solicitation or make any material change, amendment or modification to the terms and conditions of any Existing Notes Consent Solicitation other than as directed by Parent.  Promptly following the expiration of an Existing Notes Consent Solicitation, assuming the requisite consent from the holders of the applicable Existing Notes has been received and certified by the solicitation agent, the Company shall cause an appropriate supplemental indenture (each, an “Existing Notes Supplemental Indenture”) to become effective providing for the amendments of the Existing Notes Indenture contemplated in the Existing Notes Consent Solicitation Documents; provided, however, that notwithstanding the fact that an Existing Notes Supplemental Indenture may become effective earlier, the proposed amendments set forth therein shall not become operative until the Closing.  The form and substance of the Existing Notes Supplemental Indenture, if any, shall be reasonably satisfactory to Parent;

 

(ii)        if requested by Parent, use reasonable best efforts to commence a tender offer or an exchange offer as specified by Parent, with respect to all of the outstanding notes of any series of Existing Notes (which, for the avoidance of doubt, will be limited to holders of Existing Notes that are eligible to participate in a tender offer or exchange offer, as applicable, that is not registered under the Securities Act or the Exchange Act), on such terms and conditions, including pricing terms, that are proposed, from time to time, by Parent and permitted by applicable Law and the Existing Notes Indentures, the organizational documents and other material contracts of the Company and the Company Subsidiaries (the “Existing Notes Offer”); provided that (x) Parent shall be responsible for preparation of the necessary offering document, offer to purchase, related letter of transmittal, supplemental indenture, to the extent applicable, and other related documents in connection with such Existing Notes Offer (the “Existing Notes Offer Documents”) and the payment of all fees, expenses and other amounts relating to any Existing Notes Offer; and (y) Parent shall consult with the Company and afford the Company and its counsel a reasonable opportunity to review and comment on the material terms and conditions of the Existing Notes Offer and the Existing Notes Offer Documents, and Parent will give reasonable consideration to the comments, if any, raised by the Company.  The terms and conditions specified by Parent for the Existing Notes Offer shall be in compliance with the Existing Notes Indenture and any applicable Laws, including SEC rules and regulations.  The closing of any Existing Notes Offer shall be expressly conditioned on the occurrence of the Closing, and, in accordance with the terms of any Existing Notes Offer, upon or following the Closing, the Surviving Company shall accept for purchase, and purchase, all Existing Notes validly tendered and not validly withdrawn in such Existing Notes Offer (provided that the proposed amendments to the Existing Notes Indenture set forth in any Existing Notes Offer Document may not become effective unless and until the Closing has occurred).  The Company shall, and shall use its reasonable best efforts to cause its Representatives to, use reasonable best efforts to provide all cooperation reasonably requested by Parent in connection with any Existing Notes Offer, including appointing one or more dealer managers selected by Parent; provided, that (for the avoidance of doubt) Parent will pay all fees and expenses of such dealer managers.  Any Existing Notes Offer shall comply in all material respects with the applicable requirements of the Exchange Act, including Rule 14e-1, the Securities Act, the TIA and any other applicable Law, it being understood that neither the Company nor any Company Subsidiary shall be required to take any action that does not comply with such applicable Law.  As applicable, the Company shall waive any of the conditions to any Existing Notes Offer as may be reasonably requested by Parent (other than the condition that an Existing Notes Offer is conditioned on the Closing occurring), so long as such waivers would not cause such Existing Notes Offer to violate the Securities Act, the Exchange Act, the TIA or any other applicable Law, or the Existing Notes Indentures, organizational documents or any material contract of the Company and the Company Subsidiaries, and shall not, without the prior written consent of Parent, waive any condition to any Existing Notes Offer or make any material change, amendment or modification to the terms and conditions of any Existing Notes Offer (including any extension thereof) other than as directed by Parent.  If, at any time prior to the completion of an Existing Notes Offer, the Company or any Company Subsidiary, on the one hand, or Parent or any of its Subsidiaries, on the other hand, discovers any information that should be set forth in an amendment or supplement to the Existing Notes Offer Documents, so that the Existing Notes Offer Documents shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of circumstances under which they are made, not misleading, such party that discovers such information shall promptly notify all other parties, and an appropriate amendment or supplement prepared by Parent or its Subsidiaries describing such information shall be disseminated to the holders of the applicable Existing Notes.

 

(d)         During the Pre-Closing Period, the Company shall cancel, or accept the transfer and contribution of, as applicable, the outstanding Company Series B Preferred Stock or Company Series C Preferred Stock and the Company Warrants, in each case as described in Section 7.10(d) of the Parent Disclosure Letter, to the extent jointly requested in writing by Parent and the applicable holders of a majority of the outstanding Company Series B Preferred Stock or Company Series C Preferred Stock, as applicable, prior to the Closing.

7.11       [Reserved.]

 

7.12      Existing Notes.  Solely to the extent required to do so under the then applicable terms of the Existing Notes Indenture or the Existing Notes, Parent shall cause the Surviving Company to comply in all material respects with its obligations to make, conduct and consummate the Fundamental Change Offer (as defined in the Existing Notes Indenture) in accordance with the terms of the Existing Notes Indenture and the Existing Notes; provided, however, that no action shall be required under this Section 7.12 except to the extent required under the then applicable terms of the Existing Notes Indenture or the Existing Notes as a result of the consummation of the Transactions, including the Merger.

 

7.13       Stock Exchange De-Listing.  Parent shall use reasonable best efforts to cause the Company Common Stock to be de-listed from NYSE and de-registered under the Exchange Act as soon as practicable following the Effective Time and, prior to the Effective Time, the Company shall reasonably cooperate with Parent to accomplish the foregoing and shall use reasonable best efforts to take, or cause to be taken, all actions, and do or cause to be done all things, reasonably necessary, proper or advisable on its part under applicable Law and rules and policies of NYSE to enable the de-listing by the Company of the Company Common Stock from NYSE and the deregistration of the Company Common Stock under the Exchange Act promptly after the Effective Time.

 

7.14      Stockholder Litigation.  Prior to the Effective Time, the Company shall notify Parent promptly in writing of the commencement of any stockholder litigation brought or threatened in writing against the Company, any of the Company Subsidiaries or any of their respective directors or officers relating to the Transactions (“Transaction Litigation”) and shall promptly advise Parent of any material developments to keep Parent reasonably informed with respect to the status thereof.  Prior to the Effective Time, the Company, acting at the direction of the Special Committee, shall be entitled to direct and control the overall defense, negotiation and settlement of any such Transaction Litigation; provided that the Company shall (a) give Parent the opportunity to review and propose comments with respect to all material filings, pleadings and responses proposed to be filed or submitted by or on behalf of the Company prior to such filing or submission, and the Company shall consider such comments in good faith, (b) give Parent the right to participate in the defense, settlement or prosecution of any Transaction Litigation and (c) reasonably consult with Parent with respect to the defense, settlement and prosecution of any Transaction Litigation.  The Company, acting at the direction of the Special Committee, shall not, and shall cause its Representatives not to, compromise or settle, or agree to compromise or settle, any Transaction Litigation without Parent’s prior written consent (not to be unreasonably withheld, conditioned or delayed).

 

7.15      Takeover Laws; Section 16 Matters.  If any “fair price”, “moratorium”, “control share acquisition”, “interested shareholder” or other anti-takeover Law is, becomes, may become or is deemed to be applicable to this Agreement, the Transactions or the Voting Agreements, then the Board and the Special Committee shall grant such approvals and take such reasonable actions as are necessary so that the Transactions may be consummated as promptly as practicable on the terms contemplated hereby and otherwise act to render such Law or Laws inapplicable to the foregoing.  Prior to the Effective Time, the Company, including the Board or any appropriate committee thereof, shall take such further actions, if any, as may be reasonably necessary or appropriate to ensure that all transactions in equity securities of the Company (including any derivative securities) pursuant to the Merger and the other Transactions by any officer or director of the Company who is subject to Section 16(a) of the Exchange Act (or any other Persons who may be deemed subject to Section 16(a) of the Exchange Act as a “director by deputization”) are exempt under Rule 16b-3 promulgated under the Exchange Act.

 

7.16       Equity Financing.  Upon the terms and subject to the conditions of this Agreement, each of Parent and Merger Sub shall not, without the prior written consent of the Company, effect or permit any amendment or modification to be made to, or any waiver of any provision or remedy pursuant to, the Equity Commitment Letter. Upon the terms and subject to the conditions set forth herein, prior to the Effective Time, Parent and Merger Sub shall each take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper and advisable to consummate and obtain the Equity Financing on the terms and conditions described in the Equity Commitment Letter, including (i) maintaining in effect the Equity Commitment Letter, (ii) satisfying on a timely basis all conditions to funding that are applicable to Parent and Merger Sub in the Equity Commitment Letter that are within its control, (iii) consummating the Equity Financing at or prior to the Closing, (iv) complying with its obligations pursuant to the Equity Commitment Letter and (v) enforcing its rights pursuant to the Equity Commitment Letter.  Parent and Merger Sub shall give the Company prompt notice of, and keep the Company informed on a reasonably current basis and in reasonable detail of, (i) any actual or potential breach, default, termination or repudiation by any party to the Equity Commitment Letter of which Parent or Merger Sub becomes aware, including the receipt of any written notice or communication with respect thereto, and (ii) the occurrence of an event or development that would reasonably be expected to adversely impact the ability of Parent or Merger Sub to obtain all or any portion of the Equity Financing at or prior to the Closing.

 

7.17       Employee Matters.

 

(a)       For the period commencing on the Closing Date and ending on December 31, 2026 (or until an earlier termination of employment), Parent shall, and shall cause the Surviving Company and its Subsidiaries to, provide each individual who is employed by the Company or any Company Subsidiary immediately prior to the Effective Time (each, a “Continuing Employee”) with (i) a base salary or wages (as applicable) that are, in each case, no less favorable than those in effect immediately prior to the Effective Time, (ii) target annual cash incentive opportunities (as applicable) that are substantially comparable in the aggregate to those in effect for such Continuing Employee immediately prior to the Effective Time and (iii) employee benefits (excluding any equity-based compensation, retention, nonqualified deferred compensation, change in control or similar one-time or special benefits or arrangements, postretirement health and welfare benefits and defined benefit pension benefits) that are substantially comparable in the aggregate to those provided to such Continuing Employee immediately prior to the Effective Time.

 

(b)          With respect to employee benefit plans of the Surviving Company and its Subsidiaries, including any vacation, paid time-off and severance plans, for all purposes, including determining eligibility to participate, level of benefits and vesting, the service of each Continuing Employee, any Company Subsidiary or any of their respective predecessors shall be treated as service with the Surviving Company or any of its Subsidiaries; provided, however, that such service need not be recognized to the extent that such recognition would result in any duplication of benefits as to any plan to the extent that such service is not recognized thereunder as to all participants therein.

 

(c)         Parent shall, or shall cause the Surviving Company to, (i) honor in accordance with their terms all the Company Plans, as in effect at the Effective Time, (ii) waive, or cause to be waived, any pre-existing condition limitations, exclusions, actively at work requirements and waiting periods under any welfare benefit plan maintained by the Surviving Company or any of its Subsidiaries in which Continuing Employees (and their eligible dependents) will be eligible to participate from and after the Effective Time, except to the extent that such pre-existing condition limitations, exclusions, actively-at-work requirements and waiting periods would not have been satisfied or waived under the comparable Company Plan immediately prior to the Effective Time and (iii) to recognize the dollar amount of all co-payments, deductibles and similar expenses incurred by each Continuing Employee (and his or her eligible dependents) during the calendar year in which the Effective Time occurs for purposes of satisfying such year’s deductible and co-payment limitations under the relevant welfare benefit plans in which they will be eligible to participate from and after the Effective Time, except to the extent that such limits or forfeitures applied under the comparable Company Plan are in effect as of the Effective Time.

 

(d)         Notwithstanding any provision of this Agreement to the contrary, the provisions of this Section 7.17 are solely for the benefit of the parties to this Agreement, and no provision of this Section 7.17 is intended to, or shall, (i) constitute the establishment or adoption of or an amendment to any Company Plan or other employee benefit plan for purposes of ERISA or otherwise, (ii) prevent the Company, the Company Subsidiaries, Parent or the Surviving Company from amending or terminating any of their respective benefit plans (including any Company Plan in accordance with its terms), (iii) prevent Parent, after the Effective Time, from terminating the employment of any employees of the Company or any Company Subsidiary who continue to be actively employed by the Surviving Company or any of its Subsidiaries or (iv) create any third-party beneficiary rights in any Person (including any Company Associate or any collective bargaining representative thereof).

 

ARTICLE VIII

CONDITIONS TO THE MERGER

 

8.01        Conditions to the Obligations of Each Party.  The obligations of the Company, Parent and Merger Sub to consummate the Merger shall be subject to the satisfaction (or written waiver by the Company and Parent, if permissible by Law), at or prior to the Effective Time, of each of the following conditions:

 

(a)         Company Stockholder Approvals.  The Company Stockholder Approvals shall have been obtained at the Stockholders Meeting.

 

(b)        No Order.  No Governmental Authority of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any Law, whether temporary, preliminary or permanent, that is in effect that enjoins, restrains or otherwise prohibits or makes illegal the consummation of the Merger.

 

(c)          Antitrust and FDI Approvals.  All waiting periods (including any extension thereof) shall have expired or been terminated and all clearances or approvals shall have been obtained, in each case, as set forth in Section 8.01(c) of the Parent Disclosure Letter (collectively, the “Required Regulatory Approvals”).

 

8.02       Conditions to the Obligations of Parent and Merger Sub.  The obligations of Parent and Merger Sub to consummate the Merger are subject to the satisfaction or waiver by Parent (where permissible), at or prior to the Effective Time, of the following additional conditions:

 

(a)         Representations and Warranties.  (i) The representations and warranties of the Company set forth in Section 4.02(a) and Section 4.02(c) (Capitalization) shall be true and correct in all respects as of the Closing Date, as if made at such time, except to the extent any such representation or warranty expressly relates to a specific date (in which case on and as of such specific date), other than for inaccuracies that are individually or in the aggregate de minimis; (ii) the representations and warranties of the Company set forth in Section 4.08(a) (Absence of Certain Changes or Events) shall be true and correct in all respects as of the Closing Date, as if made at such time, except to the extent any such representation or warranty expressly relates to a specific date (in which case on and as of such specific date); (iii) the representations and warranties of the Company set forth in Section 4.01(a) (Organization and Qualification), Section 4.03 (Authority; Binding Nature of Agreement), Section 4.05 (Vote Required), Section 4.06 (Anti-Takeover Provisions) and Section 4.21 (Brokers) that are qualified by the term “material” or “Material Adverse Effect” shall be true and correct, and those not so qualified shall be true and correct in all material respects, in each case as of the Closing Date as if made at such time, except to the extent any such representation or warranty expressly relates to a specific date (in which case on and as of such specific date); and (iv) each of the other representations and warranties of the Company set forth in this Agreement shall be true and correct in all respects as of the Closing Date, as if made at such time, except to the extent such representation or warranty expressly relates to a specific date (in which case on and as of such specific date), other than, in the case of this clause (iv), for such failures to be true and correct that would not have a Material Adverse Effect (it being understood that for the purpose of this clause (iv) all references to the term “Material Adverse Effect” and other qualifications based on the word “material” set forth in any such representations and warranties shall be disregarded).

 

(b)        Agreements and Covenants.  The Company shall have performed or complied with the covenants, agreements and obligations required by this Agreement to be performed or complied with by it at or prior to the Effective Time in all material respects.

 

(c)          Material Adverse Effect.  Since the date of the Agreement, no Material Adverse Effect shall have occurred and be continuing.

 

(d)         Officer Certificate.  The Company shall have delivered to Parent a certificate, dated as of the Closing Date, signed by an executive officer of the Company, certifying that the conditions specified in Section 8.02(a), Section 8.02(b) and Section 8.02(c) have been satisfied.

 

8.03       Conditions to the Obligations of the Company.  The obligations of the Company to consummate the Merger are subject to the satisfaction or waiver by the Company (where permissible), at or prior to the Effective Time, of the following additional conditions:

 

(a)       Representations and Warranties.  (i) The representations and warranties of Parent and Merger Sub set forth in Section 5.01 (Organization and Qualification), Section 5.03 (Authority; Binding Nature of Agreement), Section 5.10 (Brokers) and Section 5.11 (Stockholder and Management Arrangements) that are qualified by the term “material” or “Parent Material Adverse Effect” shall be true and correct, and those not so qualified shall be true and correct in all material respects, in each case as of the Closing Date as if made at such time, except to the extent any such representation or warranty expressly relates to a specific date (in which case on and as of such specific date), (ii) the representations and warranties of Parent and Merger Sub set forth in the last sentence of Section 5.06 (Operations of Parent and Merger Sub) shall be true and correct, in each case as of the Closing Date as if made at such time, except to the extent such representation or warranty expressly relates to a specific date (in which case on and as of such specific date) and (iii) each of the other representations and warranties of Parent and Merger Sub set forth in this Agreement shall be true and correct in all respects as of the Closing Date, as if made at such time, except to the extent such representation or warranty expressly relates to a specific date (in which case on and as of such specific date), other than, in the case of this clause (iii), for such failures to be true and correct that would not, individually or in the aggregate, have a Parent Material Adverse Effect (it being understood that for the purpose of this clause (iii) all references to the term “Parent Material Adverse Effect” and other qualifications based on the word “material” set forth in any such representations and warranties shall be disregarded).

 

(b)        Agreements and Covenants.  Each of Parent and Merger Sub shall have performed or complied with the covenants, agreements and obligations required by this Agreement to be performed or complied with by it at or prior to the Effective Time in all material respects.

 

(c)         Officer Certificate.  Parent shall have delivered to the Company a certificate, dated as of the Closing Date, signed by an executive officer of Parent, certifying that the conditions specified in Section 8.03(a) and Section 8.03(b) have been satisfied.

 

ARTICLE IX

TERMINATION

 

9.01       Termination.  This Agreement may be terminated and the Transactions may be abandoned at any time prior to the Effective Time only as follows (notwithstanding any prior adoption of this Agreement by the stockholders of the Company, except that this Agreement may not be terminated pursuant to Section 9.01(c) after receipt of the Company Stockholder Approvals):

(a)          by mutual written consent of each of the Company (acting with the prior approval of the Special Committee) and Parent;

 

(b)        by either Parent or the Company (acting with the prior approval of the Special Committee) if any Governmental Authority of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any Law permanently restraining, enjoining, prohibiting or making illegal the consummation of the Merger and such Law shall have become final and nonappealable (a “Legal Prohibition”); provided that the right to terminate this Agreement under this Section 9.01(b) shall not be available to a party if the Legal Prohibition was primarily due to the material breach by such party of any provision of this Agreement;

 

(c)        by either Parent or the Company (acting with the prior approval of the Special Committee) if the Company Stockholder Approvals shall not have been obtained at the Stockholders Meeting duly convened therefor or at any adjournment or postponement thereof, in each case, at which a vote on the approval of this Agreement was taken; provided that Parent shall not have the right to terminate this Agreement pursuant to this Section 9.01(c) if any Security Holder has breached Article I of the Voting Agreements;

 

(d)         by either the Company (acting with the prior approval of the Special Committee) or Parent if the Effective Time shall not have occurred on or before November 16, 2026 (as such date may be extended by the mutual written consent of the Company (acting with the prior approval of the Special Committee) and Parent, the “Outside Date”); provided that the right to terminate this Agreement under this Section 9.01(d) shall not be available to a party if such party’s or its Affiliate’s breach of any provisions in this Agreement primarily caused or resulted in the failure of the Effective Time to occur on or before such date;

 

(e)          by Parent if:

 

(i)        the Board (acting upon the recommendation of the Special Committee) or the Special Committee shall have effected an Adverse Recommendation Change; provided, however, that Parent’s right to terminate this Agreement pursuant to this Section 9.01(e)(i) will expire at 5:00 p.m., New York City time, on the fifth (5^th) Business Day following the date on which such right to terminate first arose or, if sooner, receipt of the Company Stockholder Approvals; or

 

(ii)         any breach or inaccuracy of any representation or warranty or failure to perform any covenant or agreement on the part of the Company set forth in this Agreement shall have occurred that would cause any of the conditions set forth in Section 8.02(a) or Section 8.02(b) not to be satisfied and such breach or inaccuracy is not capable of being cured or, if curable, is not cured by the earlier of (A) the date that is thirty (30) days after written notice thereof is given by Parent to the Company and (B) five (5) Business Days prior to the Outside Date; provided that Parent may not terminate this Agreement pursuant to this Section 9.01(e)(ii) if at the time of such termination the Company would be entitled to terminate this Agreement pursuant to Section 9.01(f)(ii); or

 

(f)           by the Company (acting with the prior approval of the Special Committee) if:

 

(i)          prior to the delivery of the Company Stockholder Approvals, the Board (acting upon the recommendation of the Special Committee) or the Special Committee determines to enter into an Acquisition Agreement with respect to a Superior Proposal; provided, however, that (A) prior to, or concurrently with, such termination the Company pays the Company Termination Fee due under Section 9.03(a) and (B) the Company substantially contemporaneously enters into such Acquisition Agreement; provided that the Company shall not have the right to terminate this Agreement pursuant to this Section 9.01(f)(i) if (x) the Company Stockholder Approvals have been obtained or (y) the Company has materially breached Section 7.04 with respect to such Superior Proposal; or

 

(ii)         any breach or inaccuracy of any representation or warranty or failure to perform any covenant or agreement on the part of Parent or Merger Sub set forth in this Agreement shall have occurred that would cause any of the conditions set forth in Section 8.03(a) or Section 8.03(b) not to be satisfied and such breach or inaccuracy is not capable of being cured or, if curable, is not cured by the earlier of (A) the date that is thirty (30) days after written notice thereof is given by the Company to Parent and (B) five (5) Business Days prior to the Outside Date; provided that the Company may not terminate this Agreement pursuant to this Section 9.01(f)(ii) if at the time of such termination Parent would be entitled to terminate this Agreement pursuant to Section 9.01(e)(ii).

 

9.02       Notice of Termination; Effect of Termination.  (a) A terminating party shall provide written notice of termination to the other parties hereto specifying with reasonable particularity the reason for such termination, and any such termination in accordance with Section 9.01 shall be effective immediately upon delivery of such written notice to the other parties hereto.

 

(b)         In the event of termination of this Agreement by any party as provided in Section 9.01, this Agreement shall forthwith become void and of no further force or effect and there shall be no liability or obligation on the part of any party, except that (i) this Section 9.02, Section 7.03(b), Section 9.03 and Article X shall remain in full force and effect in accordance with their respective terms and to the extent provided thereunder, (ii) nothing herein shall relieve any party from liability for any fraud or Willful and Material Breach of this Agreement prior to such termination (which liability the parties hereto acknowledge and agree shall not be limited to reimbursement of out-of-pocket fees, costs or expenses incurred in connection with the Transactions, and may include damages based on loss of the economic benefit of the Transactions to the parties hereto and the stockholders of the Company (in each case, taking into consideration all relevant matters, including other business opportunities or combination opportunities and the time value of money)) and (iii) the Confidentiality Agreement shall remain in full force and effect in accordance with its terms and to the extent provided thereunder.

 

9.03      Fees and Expenses.  Unless specified otherwise herein, all expenses incurred in connection with this Agreement, the Transactions, the solicitation of the Company Stockholder Approvals and all other matters related to the Transactions shall be paid by the party incurring such expenses, whether or not the Merger or any other Transaction is consummated.

 

(a)        If this Agreement shall be validly terminated (i) by Parent pursuant to Section 9.01(e)(i) or (ii) by the Company pursuant to Section 9.01(f)(i), then the Company shall pay to Parent in immediately available funds an amount equal to $42,700,000 (the “Company Termination Fee”) to an account or accounts designated in writing by Parent (x) with respect to the preceding clause (i), within two (2) Business Days after the date of the termination of this Agreement by Parent or (y) with respect to the preceding clause (ii), prior to, or concurrently with, the termination of this Agreement by the Company.

 

(b)        If (A) this Agreement is validly terminated by the Company or Parent pursuant to Section 9.01(c) or Section 9.01(d); (B) following the execution and delivery of this Agreement and prior to the Stockholders Meeting, any Person shall have publicly announced a bona fide Acquisition Proposal and not withdrawn or otherwise abandoned such Acquisition Proposal prior to the earlier of (x) the Stockholders Meeting and (y) the termination of this Agreement; and (C) within twelve (12) months following such termination of this Agreement, the Company enters into a definitive agreement with respect to such Acquisition Proposal and the transaction contemplated by such Acquisition Proposal is subsequently consummated (provided that, for purposes of clauses (B) and (C), all references to “twenty percent (20%)” in the definition of “Acquisition Proposal” will be deemed to be references to “fifty percent (50%)”), then the Company shall promptly (and in any event within three (3) Business Days) after such consummation pay, or cause to be paid, to Parent the Company Termination Fee by wire transfer of immediately available funds to an account or accounts designated in writing by Parent.

 

(c)      The parties hereto acknowledge and agree that the agreements contained in this Section 9.03 are an integral part of the Transactions, and that, without these agreements, the parties hereto would not enter into this Agreement.  Each of the parties hereto further acknowledges that the payment of the Company Termination Fee if and when due in accordance with this Section 9.03 is not a penalty but is liquidated damages in a reasonable amount that will compensate Parent in the circumstances in which the Company Termination Fee is payable for the efforts and resources expended and the opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the Transactions, which amount would otherwise be impossible to calculate with precision.  In no event shall the Company be required to pay the Company Termination Fee more than once (even though such payment may be payable under one or more provisions).  Parent’s receipt of the Company Termination Fee, to the extent payable, and paid, in accordance with Section 9.03(a) or Section 9.03(b), as applicable, shall be the sole and exclusive remedy of the Parent Related Parties against any of the Company Related Parties for any breach, loss or damage under this Agreement, or otherwise relating to or arising out of this Agreement or the Transactions (and the termination of this Agreement or any matter forming the basis for such termination), and neither the Company nor any other Company Related Party will have any other liability or obligation to Parent or any other Parent Related Party relating to or arising out of this Agreement or the Transactions (including in respect of any written or oral representation made or alleged to be made in connection herewith). If the Company fails to promptly pay the Company Termination Fee pursuant to this Section 9.03, the Company shall pay to Parent all reasonable and documented out-of-pocket fees, costs and expenses of enforcement (including attorneys’ fees as well as expenses incurred in connection with any action initiated by such party), together with interest on the amount of the Company Termination Fee, at a rate per annum equal to the prime lending rate as published in The Wall Street Journal, in effect on the date such payment is required to be made, plus two percent (2%) (or such lesser rate as is the maximum permitted by applicable Law).

ARTICLE X

 

GENERAL PROVISIONS

 

10.01     Non-Survival of Representations, Warranties and Agreements.  The representations, warranties and agreements in this Agreement and in any certificate delivered pursuant hereto shall terminate at the Effective Time; provided, however, that this Section 10.01 shall not limit any covenant or agreement of the parties which by its terms contemplates performance after the Effective Time.

 

10.02     Notices.  All notices, requests, claims, demands and other communications under this Agreement shall be in writing and shall be given or made (and shall be deemed to have been duly given or made upon receipt) by delivery in person, by an internationally recognized overnight courier service (with proof of delivery), or by email (so long as no notice of failure of delivery is received by the sender) to the respective parties hereto at the following coordinates (or at such other coordinates for a party as shall be specified in a notice given in accordance with this Section 10.02):

 

(a)            if to Parent or Merger Sub or the Surviving Company:

 

Kona Merger Subsidiary, Inc.

151 S. El Camino Drive

Beverly Hills, CA 90212

Attention:    In Ku Lee

Email:          [***]

with a copy (which shall not constitute notice) to:

 

Debevoise & Plimpton LLP

66 Hudson Boulevard

New York, NY 10001

Attention:  Jeffrey J. Rosen

Gordon Moodie

Emily F. Huang

gsmoodie@debevoise.com

efhuang@debevoise.com

 

(b)            if to the Company prior to the Effective Time:

 

Kennedy-Wilson Holdings, Inc.

151 South El Camino Drive

Attention:    Bailey Wilson Benzie

Email:          [***]

with a copy (which shall not constitute notice) to:

 

Latham & Watkins LLP

355 South Grand Avenue, Suite 400

Los Angeles, CA 90071

Attention:    Julian Kleindorfer

Email:          julian.kleindorfer@lw.com

 

with a copy (which shall not constitute notice) to:

 

Cravath, Swaine and Moore LLP

Two Manhattan West

375 Ninth Avenue

New York, NY 10001

Attention:  Faiza J. Saeed

George F. Schoen

Cole DuMond

Alexander E. Greenberg

Email:

fsaeed@cravath.com

gschoen@cravath.com

cdumond@cravath.com

agreenberg@cravath.com

10.03       Interpretation and Rules of Construction.  When a reference is made in this Agreement to an Exhibit, an Article or a Section, such reference shall be to an Annex, an Exhibit, an Article or a Section of this Agreement unless otherwise indicated.  The table of contents, index of defined terms and headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement.  Whenever the words “include”, “includes” or “including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation”. The words “hereof”, “hereto”, “hereby”, “herein” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement.  Documents, materials and information are deemed to have been “made available” to the Company, Parent or Merger Sub, as applicable, if such documents, materials or information were, at least one (1) Business Day prior to the date hereof, (a) available for review by such Person and its Representatives through the electronic data room entitled “Project Key West”, which is hosted by Intralinks in connection with the Transactions, (b) disclosed in an SEC Document filed and publicly available or (c) otherwise provided by or on behalf of the applicable party in writing to such Person or any of its Representatives.  The term “or” is not exclusive.  The word “extent” in the phrase “to the extent” shall mean the degree to which a subject or other thing extends, and such phrase shall not mean simply “if”. The definitions contained in this Agreement are applicable to the singular as well as the plural forms of such terms and to the masculine as well as to the feminine and neuter genders of such term.  Any Contract or Law defined or referred to herein means such Contract or Law as from time to time amended, modified or supplemented, unless otherwise specifically indicated, and any Law referred to herein shall be deemed to also refer to all rules and regulations promulgated thereunder.  All accounting terms used and not defined herein have the respective meanings given to them under GAAP, except to the extent otherwise specifically indicated or that the context otherwise requires.  References to a Person are also to its successors and permitted assigns.  If the last day of a period of time before which, within which or following which any act is to be done or step taken pursuant to this Agreement is not a Business Day, the period shall end on the immediately following Business Day.  Unless otherwise specifically indicated, all references to “dollars” and “$” will be deemed references to the lawful money of the United States of America.  Each of the parties has participated in the drafting and negotiation of this Agreement; if an ambiguity or question of intent or interpretation arises, this Agreement must be construed as if it is drafted by all the parties hereto, and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of authorship of any of the provisions of this Agreement.  References to “days” shall mean “calendar days” unless expressly stated otherwise.  All references herein to “parties” shall be to the parties hereto unless the context shall otherwise require.  Decisions made in a party’s “sole discretion” may be taken for any reason or no reason.

 

10.04     Severability.  If any term or other provision of this Agreement is invalid, illegal or incapable of being enforced by any Law or public policy, all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the Transactions is not affected in any manner materially adverse to any party; provided that the parties intend that the remedies and limitations thereon (including limitations on remedies in Section 10.08 and the other limitations on the liabilities of the Parent Related Parties and Company Related Parties) contained in Article IX and Article X be construed as an integral provision of this Agreement and that such remedies and limitations shall not be severable or subject to modification pursuant to the following sentence in any manner that increases any Parent Related Party’s or any Company Related Party’s liability or obligations hereunder.  Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced (except those referenced in the immediately preceding proviso), 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 be consummated as originally contemplated to the fullest extent possible.

10.06    Assignment.  Neither this Agreement nor any of the parties’ respective rights, interests or obligations under this Agreement shall be assigned, in whole or in part, by operation of Law or otherwise by any of the parties hereto without the prior written consent of the other parties hereto. No assignment by any party shall relieve such party of any of its obligations hereunder.  Subject to the immediately preceding sentence, any purported assignment without such consent shall be void. Subject to the preceding sentences, this Agreement will be binding upon, inure to the benefit of, and be enforceable by, the parties and their respective successors and assigns.

 

10.07    Parties in Interest.  This Agreement shall be binding upon and inure solely to the benefit of each party hereto and its successors and permitted assigns, and nothing in this Agreement, express or implied, is intended to or shall confer upon any other Person any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement, except for (a) the provisions of Section 7.05 (which are for the benefit of the Indemnified Parties and may be enforced by such Persons after the Effective Time), (b) after the Effective Time occurs, the rights of the Holders to receive the Merger Consideration to which they are entitled in accordance with the terms and conditions of this Agreement, (c) the third-party beneficiary rights specified in the Equity Commitment Letter and the Rollover Agreements and (d) the provisions of Section 7.09(b) relating to the indemnification and reimbursement of the Company’s Representatives, the Company’s Affiliates and such Affiliates’ respective Representatives (which are intended for the benefit of, and may be enforced by, such Persons).

 

10.08     Specific Performance.

 

(a)          The parties acknowledge and agree that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached.  Each party agrees that, in the event of any breach or threatened breach by any other party of any covenant or obligation contained in this Agreement or the Equity Commitment Letter, the non-breaching party shall be entitled (in addition to any other remedy that may be available to it whether in Law, equity or otherwise, including monetary damages) to (i) an Order of specific performance to enforce the observance and performance of such covenant or obligation and (ii) an injunction restraining such breach or threatened breach.  The parties hereto agree not to assert that a remedy of specific performance against a party hereto is unenforceable, invalid, contrary to Law or inequitable on the basis that a remedy of monetary damages would provide an adequate remedy or that the parties otherwise have an adequate remedy at Law.

 

(b)          Each party further agrees that no other party or any other Person shall be required to obtain, furnish or post any bond or similar instrument in connection with or as a condition to obtaining any remedy referred to in this Section 10.08, and each party irrevocably waives any right it may have to require the obtaining, furnishing or posting of any such bond or similar instrument.  The parties acknowledge and agree that the right of specific performance contemplated by this Section 10.08 is an integral part of the Transactions, including the Merger, and without that right, none of the Company, Parent or Merger Sub would have entered into this Agreement.

 

(c)        Notwithstanding anything herein or otherwise to the contrary, it is hereby acknowledged and agreed that the Company shall be entitled to specific performance to cause Parent and Merger Sub to consummate the Transactions and cause the Equity Investor to provide the Equity Financing if (i) all of the conditions set forth in Section 8.01 and Section 8.02 have been and then are satisfied or, to the extent permitted by Law, waived by Parent (other than those conditions that by their nature cannot be satisfied other than at the Closing, provided that such conditions to be satisfied at the Closing would be capable of satisfaction) and (ii) the Company has irrevocably confirmed in a written notice that (x) all conditions set forth in Section 8.03 have been satisfied (other than those conditions that by their nature cannot be satisfied other than at the Closing) or that it would be willing to waive any unsatisfied conditions in Section 8.03 and (y) it is ready, willing and able to consummate the Closing if specific performance is granted.

 

(d)        Notwithstanding anything to the contrary to this Agreement, in the event that the Company initiates a proceeding seeking an injunction, specific performance or other equitable relief pursuant to this Section 10.08, no party shall object to any application to the court setting forth an expedited timeline to hear and determine such action.  If, prior to the Outside Date, any party brings any Action, in each case in accordance with Section 10.09(b), to enforce specifically the performance of the terms and provisions hereof by any other party, the Outside Date shall automatically be extended by (i) the amount of time during which such Action is pending, plus twenty (20) Business Days or (ii) such other time period established by the court presiding over such Action, as the case may be.

 

10.09     Governing Law.

 

(a)         This Agreement shall be governed by and construed in accordance with the Laws of the State of Delaware without regard to the principles of conflicts of law that would cause the application of law of any jurisdiction other than those of the State of Delaware.

 

(b)        The parties hereto agree that any Action seeking to enforce any provision of, or based on any matter arising out of or in connection with, this Agreement or the Transactions (whether brought by any party or any of its Affiliates or against any party or any of its Affiliates) shall be heard and determined exclusively in the Court of Chancery of the State of Delaware; provided, however, that, if such court does not have jurisdiction over such Action, such Action shall be heard and determined exclusively in any federal or state court located in the State of Delaware.  Consistent with the preceding sentence, each of the parties hereto hereby (i) submits to the exclusive jurisdiction of any federal or state court sitting in the State of Delaware for the purpose of any Action arising out of or relating to this Agreement brought by either party hereto; (ii) agrees that service of process will be validly effected by sending notice in accordance with Section 10.02; and (iii) irrevocably waives, and agrees not to assert by way of motion, defense, or otherwise, in any such Action, any claim that it is not subject personally to the jurisdiction of the above-named courts, that its property is exempt or immune from attachment or execution, that the Action is brought in an inconvenient forum, that the venue of the Action is improper, or that this Agreement or the Transactions may not be enforced in or by any of the above named courts.

 

10.10    Waiver of Jury Trial.  EACH OF THE PARTIES HERETO HEREBY WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT, THE DEBT FINANCING OR THE TRANSACTIONS RELATED THERETO (INCLUDING ANY ACTION, CAUSE OF ACTION, CLAIM, CROSS-CLAIM OR THIRD PARTY CLAIM AGAINST ANY FINANCING PARTY).  EACH OF THE PARTIES HERETO HEREBY (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF THE OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE TRANSACTIONS, AS APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 10.10.

 

10.11     Amendment.  This Agreement may be amended, by written agreement of the parties hereto, at any time prior to the Effective Time; provided that, with respect to the Company, the Special Committee has approved such amendment; provided further, that prior to the Effective Time, no amendment may be made that would reduce the amount or change the form of the Merger Consideration or that would otherwise require the approval of the stockholders of the Company under applicable Law without the requisite consent of the stockholders of the Company.

 

10.12     Waiver.  At any time prior to the Effective Time, Parent, on the one hand, and the Company (subject to Section 10.16, only if such action has been recommended by the Special Committee), on the other hand, may (a) extend the time for the performance of any obligation or other act of any other party hereto, (b) waive any inaccuracy in the representations and warranties of any other party contained herein or in any document delivered pursuant hereto and (c) waive compliance with any agreement of any other party or any condition to its own obligations contained herein.  Any such extension or waiver shall be valid if set forth in an instrument in writing signed by the party or parties to be bound thereby.  The failure of any party to assert any of its rights under this Agreement or otherwise shall not constitute a waiver of those rights.

 

10.13     Disclosure Letters.  The parties hereto agree that any reference in a particular Section of the Company Disclosure Letter or the Parent Disclosure Letter shall be deemed to be disclosed and incorporated by reference in each other Section of the Company Disclosure Letter or the Parent Disclosure Letter, respectively, to which the relevance of such information to such other Section is reasonably apparent on its face.  Certain items and matters may be listed in the Company Disclosure Letter or the Parent Disclosure Letter for informational purposes only and may not be required to be listed therein by the terms of this Agreement.  In no event shall the listing of items or matters in the Company Disclosure Letter or the Parent Disclosure Letter be deemed or interpreted to broaden, or otherwise expand the scope of, the representations and warranties or covenants contained in this Agreement.  The mere inclusion of an item in the Company Disclosure Letter or the Parent Disclosure Letter as an exception to a representation or warranty (a) shall not be deemed an admission that such item represents a material exception or material event, circumstance, change, effect, development or condition or that such item would have a Material Adverse Effect or a Parent Material Adverse Effect, respectively, and (b) shall not be construed as an admission or indication by the Company of any non-compliance with, or breach or violation of, any third-party rights, any Contract or any Law or Order of any Governmental Authority, such disclosures having been made solely for the purposes of creating exceptions to the representations made herein or of disclosing any information required to be disclosed under this Agreement.

10.14   Counterparts.  This Agreement may be executed and delivered (including by facsimile transmission or other means of electronic transmission, such as by electronic mail in “pdf” form) in counterparts, and by the different parties hereto in separate counterparts, each of which when executed shall be deemed to be an original but all of which taken together shall constitute one and the same agreement.

 

10.15     Effect of Breach by Designated Individuals.  Notwithstanding anything to the contrary set forth in this Agreement, any action or omission by (or at the direction or with the consent of) any individual set forth in Section 10.15 of the Company Disclosure Letter (each, a “Designated Individual”) in his or her capacity as an officer of the Company on or after the date hereof that would, or would reasonably be expected to, constitute or result, directly or indirectly, in a breach by the Company of any covenant or agreement, in this Agreement shall be deemed not to constitute or result in such a breach and the consequences of such action or omission shall be disregarded for all purposes under this Agreement.  In furtherance of the foregoing, no such action or omission shall cause the failure of a condition set forth in Section 8.02(a), Section 8.02(b) or Section 8.02(c) to be satisfied (and no right on the part of Parent to terminate this Agreement shall arise therefrom nor any claim by Parent or Merger Sub for any loss or damage or other remedy (whether at law, in equity or otherwise)).

 

10.16     Non-Recourse.  This Agreement may only be enforced against, and any claim, action, suit or other legal proceeding based upon, arising out of, or related to this Agreement, or the negotiation, execution or performance of this Agreement, may only be brought against, the entities that are expressly named as parties hereto and then only with respect to the specific obligations set forth herein with respect to such party, except for claims that the Company may assert in accordance with the Confidentiality Agreement, the Voting Agreements, the Rollover Agreements or the Equity Commitment Letter (and solely against the Person(s) who are expressly party to the Confidentiality Agreement, the Voting Agreements, the Rollover Agreements or the Equity Commitment Letter, as applicable).  Except as set forth in this Agreement, the Confidentiality Agreement, the Voting Agreements, the Rollover Agreements or the Equity Commitment Letter (and then solely to the extent set forth herein or therein), no former, current or future officers, employees, directors, partners, equity holders, managers, members, attorneys, agents, advisors or other Representatives of any party hereto (each, a “Non-Recourse Party”) shall have any liability for any obligations or liabilities of any party hereto under this Agreement or for any claim or proceeding (whether in tort, contract or otherwise) based on, in respect of or by reason of the Transactions or in respect of any written or oral representations made or alleged to be made in connection herewith.  In furtherance and not in limitation of the foregoing, each party covenants, agrees and acknowledges that no recourse under this Agreement or any other agreement referenced herein or in connection with any Transactions shall be sought or had against any Non-Recourse Party, except for claims that any party may assert (A) against another party solely in accordance with, and pursuant to the terms and conditions of, this Agreement or (B) pursuant to the Confidentiality Agreement, the Voting Agreements, the Rollover Agreements or the Equity Commitment Letter against the Person(s) who are expressly party to the Confidentiality Agreement, the Voting Agreements, the Rollover Agreements or the Equity Commitment Letter, as applicable.

 

10.17    Certain Special Committee Matters.  Any determination as to whether any condition to the obligations of the Company set forth in Sections 8.01 or 8.03 has been satisfied (and any disputes relating thereto or arising therefrom), and any enforcement or any defense of any enforcement of any rights under this Agreement by the Company, including pursuant to Sections 9.01, 9.03 or 10.08, will be controlled by the Special Committee; provided that following receipt of the Company Stockholder Approvals the Board may (without any action taken by the Special Committee) waive on behalf of the Company any conditions set forth in Sections 8.01 or 8.03 or otherwise determine to consummate the Closing in accordance with the terms hereof.

 

10.18    Financing Provisions.  Notwithstanding anything in this Agreement to the contrary, the Company, on behalf of itself, the Company Subsidiaries and each of its controlled Affiliates, hereby: (a) agrees that any legal action, whether in law or in equity, whether in contract or in tort or otherwise, involving the Financing Parties, arising out of or relating to this Agreement or the Debt Financing or any of the transactions contemplated hereby or thereby or the performance of any services thereunder, as applicable, shall be subject to the exclusive jurisdiction of any federal or state court in the Borough of Manhattan, New York, New York, so long as such forum is and remains available, and any appellate court thereof and each party hereto irrevocably submits itself and its property with respect to any such legal action to the exclusive jurisdiction of such court, (b) agrees that any such legal action shall be governed by the laws of the State of New York (without giving effect to any conflicts of law principles that would result in the application of the laws of another state), except as otherwise provided in any agreement relating to the Debt Financing and except to the extent relating to the interpretation of any provisions in this Agreement (including any provision in any debt commitment letter or in any definitive documentation related to the Debt Financing that expressly specifies that the interpretation of such provisions shall be governed by and construed in accordance with the law of the State of Delaware), (c) knowingly, intentionally and voluntarily waives to the fullest extent permitted by applicable Law trial by jury in any such legal action brought against the Financing Parties in any way arising out of or relating to this Agreement or the Debt Financing, (d) agrees that none of the Financing Parties shall have any liability to the Company or any Company Subsidiary or any of their respective controlled Affiliates or representatives relating to or arising out of this Agreement or the Debt Financing (subject to the last sentence of this Section 10.18), and (e) agrees that the Financing Parties are express third party beneficiaries of, and may enforce, any of the provisions of Section 10.10, Section 10.11 and this Section 10.18 and that Section 10.10, Section 10.11 and this Section 10.18 may not be amended, altered, waived or modified in a manner materially adverse to the Financing Parties without the written consent of the Financing Entities (such consent not to be unreasonably withheld, conditioned or delayed).  Notwithstanding the foregoing, nothing in this Section 10.18 shall in any way limit or modify the rights and obligations of Parent under this Agreement or any commitment letter, or any Financing Party’s obligations under any commitment letter, or the rights of the Company and the Company Subsidiaries against the Financing Parties with respect to the Debt Financing or any of the transactions contemplated thereby or any services thereunder following the Closing Date.

 

[Signature Page Follows]

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

 

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

 

[Signature Page to the Agreement and Plan of Merger]