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ARTICLE I DEFINITIONS		2
Section 1.1	Definitions	2
Section 1.2	Interpretation	19
ARTICLE II THE MERGER		19
Section 2.1	The Merger	19
Section 2.2	Effective Time	19
Section 2.3	Effect of the Merger	20
Section 2.4	Certificate of Incorporation; Bylaws	20
Section 2.5	Directors and Officers	20
Section 2.6	Contribution and Issuance	20
Section 2.7	Withholding	21
ARTICLE III MERGER CONSIDERATION; CONVERSION OF SECURITIES; EXCHANGE OF CERTIFICATES		21
Section 3.1	Calculation of the Closing Date Merger Consideration	21
Section 3.2	Conversion of Shares	22
Section 3.3	Treatment of Company Options	22
Section 3.4	Pre-Closing Deliveries	22
Section 3.5	Closing Payments	23
Section 3.6	Post-Closing Merger Consideration Adjustment and Payments	24
Section 3.7	Final Adjustment Payment	27
Section 3.8	Post-Closing Matters	29
Section 3.9	Appraisal Rights	30
Section 3.10	Delivery of Notices and Information Statement	30
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF THE COMPANY		30
Section 4.1	Organization and Qualification	31
Section 4.2	Capitalization of the Company	31
Section 4.3	Subsidiaries	32
Section 4.4	Binding Obligation	32
Section 4.5	No Defaults or Conflicts	33

 

 

 

 

Section 4.6	No Governmental Authorization Required	33
Section 4.7	SEC Filings; Financial Statements and Internal Controls	33
Section 4.8	Intellectual Property	35
Section 4.9	Legal Compliance	36
Section 4.10	Material Contracts	36
Section 4.11	Litigation	38
Section 4.12	Taxes	38
Section 4.13	Employee Benefit Plans	40
Section 4.14	Environmental Compliance	42
Section 4.15	Insurance	42
Section 4.16	Title to Assets; Liens; Real Property	42
Section 4.17	Transactions with Affiliates	43
Section 4.18	Absence of Certain Changes or Events	43
Section 4.19	Brokers	43
Section 4.20	Collective Bargaining; Labor Disputes; Compliance	44
Section 4.21	Customers and Suppliers	44
Section 4.22	Export Control Laws and Customs Laws	44
Section 4.23	Corrupt Payments	45
Section 4.24	No Implied Representations and Warranties	45
ARTICLE V REPRESENTATIONS AND WARRANTIES OF PARENT, INTERMEDIATE HOLDCO AND MERGER SUB		46
Section 5.1	Organization of Parent, Intermediate Holdco and Merger Sub	46
Section 5.2	Ownership of Merger Sub; No Prior Activities	46
Section 5.3	Binding Obligation	46
Section 5.4	No Defaults or Conflicts	46
Section 5.5	No Government Authorization Required	47
Section 5.6	Brokers	47
Section 5.7	Litigation	47
Section 5.8	Financial Ability	47
Section 5.9	Solvency	49

 

 

 

Section 5.10	Guarantee	49
Section 5.11	Investment Representation	49
Section 5.12	Acknowledgements by Parent, Intermediate Holdco and Merger Sub	49
ARTICLE VI PRE-CLOSING COVENANTS		51
Section 6.1	Conduct of Business	51
Section 6.2	Efforts to Consummate; Regulatory Matters and Approvals	53
Section 6.3	Publicity	56
Section 6.4	Access	56
Section 6.5	Termination of Certain Agreements	57
Section 6.6	Financing and Financing Cooperation	57
Section 6.7	Section 280G Approval	60
Section 6.8	FIRPTA Certificate	61
Section 6.9	Stockholder Consent	61
Section 6.10	Exclusivity	61
Section 6.11	Hedging Agreements	62
Section 6.12	Resignation Letters	62
Section 6.13	Deferred Stock Units	62
Section 6.14	Reporting Subsidiary Senior Notes Tender Offer	62
Section 6.15	Title to Company Intellectual Property	64
ARTICLE VII CONDITIONS PRECEDENT TO THE CLOSING		64
Section 7.1	Conditions Precedent to Each Party’s Obligations	64
Section 7.2	Conditions Precedent to Obligations of Parent, Intermediate Holdco and Merger Sub	64
Section 7.3	Conditions Precedent to Obligations of the Company	65
Section 7.4	Frustration of Closing Conditions	66
ARTICLE VIII OTHER COVENANTS		66
Section 8.1	Transfer Taxes	66
Section 8.2	Access to Information	66
Section 8.3	Director and Officer Liability and Indemnification	66

 

 

 

Section 8.4	Employee Matters	68
Section 8.5	Mutual Release	69
ARTICLE IX TERMINATION		70
Section 9.1	Termination of Agreement	70
Section 9.2	Effect of Termination	71
Section 9.3	Termination Fee	71
ARTICLE X MISCELLANEOUS		73
Section 10.1	Nonsurvival of Representations, Warranties and Covenants	73
Section 10.2	Expenses	73
Section 10.3	No Third-Party Beneficiaries	74
Section 10.4	Entire Agreement	74
Section 10.5	Succession and Assignment	74
Section 10.6	Rights Cumulative	74
Section 10.7	Headings	74
Section 10.8	Notices	74
Section 10.9	Governing Law; Submission of Jurisdiction; Waiver of Jury Trial; Selection of Forum	76
Section 10.10	Amendments and Waivers	78
Section 10.11	Severability	78
Section 10.12	Construction	78
Section 10.13	Incorporation of Exhibits, Schedules and Disclosure Letter	78
Section 10.14	Specific Performance	78
Section 10.15	Representative	80
Section 10.16	Non-Recourse	82
Section 10.17	Provision With Respect to Legal Representation	83
Section 10.18	Counterparts	84

 

 

 

 

EXHIBITS
Exhibit A	Balance Sheet Rules
Exhibit B	Form of Letter of Transmittal
Exhibit C	Form of Escrow Agreeme

 

 

 

 

 

 

 

Section 6.1      Conduct of Business. Except as set forth on Schedule 6.1 of the Disclosure Letter or as otherwise consented to in writing by Parent (which such consent may not be unreasonably withheld, conditioned or delayed), from the date hereof through the Closing, the Company covenants and agrees that:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Section 6.2      Efforts to Consummate; Regulatory Matters and Approvals.

 

 

 

 

 

 

Section 6.3      Publicity. Prior to Closing, neither the Company nor Parent shall, and shall not permit any of their representatives to, issue any press release or make any public announcement relating to the subject matter of this Agreement without the prior written consent of the other Party (which consent shall not be unreasonably withheld); provided, however, that the foregoing shall not restrict or prohibit (i) (A) the Company, after reasonable consultation with Parent, from making any announcement to its employees, customers and suppliers to the extent the Company reasonably determines in good faith that such announcement is necessary or advisable, (B) disclosures made to direct and indirect investors (or potential investors) of Oak Hill Capital Partners III, L.P. (or its affiliated investment funds) or CCMP Capital Investors III, L.P. (or its affiliated investment funds) in connection with normal fund raising and related marketing or informational or reporting activities of Oak Hill Capital Partners III, L.P. or its Affiliates, or CCMP Capital Investors III, L.P. or its Affiliates, as applicable, or (C) the Company, after reasonable consultation with Parent, scheduling any conference call or press conference with bondholders or bond analysts with respect to this Agreement or the transactions contemplated hereby, or (ii) either Party from making any other announcement as may be required by applicable Law or any listing agreement with or rule of any national securities exchange or association (including the announcement of the Merger on Form 8-K with the SEC), provided that the other Party shall have a reasonable opportunity to first review any such announcement.

 

Section 6.4      Access.

 

 

 

Section 6.5      Termination of Certain Agreements. On or prior to the Closing, (a) Stockholders Agreement, (b) the Equity Incentive Plan and (c) the Expense Reimbursement Agreement shall each have been terminated without any continuing obligation of any Acquired Company, except for any obligation of the Acquired Companies to indemnify, exculpate or advance expenses (it being understood, for the avoidance of doubt, that advancement of expenses shall be solely with respect to indemnification and exculpation matters), in each case as set forth therein, which shall survive such termination.  Subject to the immediately preceding sentence, the applicable Acquired Companies shall provide the counterparties to the Expense Reimbursement Agreement a release of all liability arising under or relating to the Expense Reimbursement Agreement.

 

Section 6.6      Financing and Financing Cooperation.

 

Closing Date) have been satisfied or waived and the Marketing Period has ended, consummate the Debt Financing at Closing, (vi) enforce their rights under the Debt Financing Commitments, and (vii) cause as promptly as reasonably practicable the Debt Financing Sources to provide to Hillman Companies’ independent accountants, with respect to the preparation of the comfort letters contemplated by the definition of Required Financial Information, a “circle-up” of a customary draft offering memorandum, which Parent shall use reasonable best efforts to prepare as promptly as reasonably practicable, upon which such comfort letters can be delivered. Without limiting the generality of the foregoing, Parent, Intermediate Holdco and Merger Sub shall give the Company prompt notice:  (A) of any material breach or default by any party to any Financing Commitment; (B) of the receipt of any written notice or other written communication from any person with respect to any:  (x) breach, default, termination or repudiation by any party to any Financing Commitment or (y) material dispute between or among any parties to any Financing Commitment; (C) if for any reason Parent, Intermediate Holdco or Merger Sub believes in good faith that (I) there is a material dispute between or among any parties to any Financing Commitment or any definitive document related to the Financing or (II) there is a material possibility that it will not be able to obtain all or any portion of the Financing on the terms, in the manner or from the sources contemplated by the Financing Commitment; and (D) if for any reason any portion of the Financing becomes unavailable on the terms and conditions contemplated in the Financing Commitments. As soon as reasonably practicable, but in any event within three (3) Business Days, after the date the Company delivers to Parent, Intermediate Holdco or Merger Sub a written request, Parent, Intermediate Holdco and Merger Sub shall provide any information reasonably requested by the Company relating to any circumstance referred to in clause (A), (B), (C) or (D) of the immediately preceding sentence. If any portion of the Debt Financing becomes unavailable on the terms and conditions (including the flex provisions) contemplated in the Debt Financing Commitments, Parent shall use its reasonable best efforts to obtain alternative financing from alternative sources in an amount sufficient to consummate the transactions contemplated by this Agreement as promptly as practicable following the occurrence of such event; it being understood that Parent shall have no obligation to accept terms that are materially less favorable, taken as a whole (after taking into account any flex provisions), to Parent than those included in the Debt Financing Commitments as of the date hereof. Parent shall keep the Company informed on a reasonably current basis in reasonable detail of the status of its efforts to arrange the Debt Financing (subject to any applicable restrictions in the Debt Financing Commitments). For purposes of this Agreement, the definitions of “Debt Financing Commitments,” “Debt Financing” and related definitions shall include the Debt Financing Commitments and any document related thereto as the same may be amended, waived, modified or replaced pursuant to this Section 6.6(a).

 

 

(c)     Parent, Intermediate Holdco and Merger Sub acknowledge and agree that the obtaining of the Financing, or any alternative financing, is not a condition to the Closing and reaffirm their obligation to consummate the transactions contemplated by this Agreement irrespective and independently of the availability of the Financing or any alternative financing, subject to fulfillment or waiver of the conditions set forth in Article VII (Conditions Precedent to the Closing). Nothing contained in this Section 6.6 or otherwise shall require the Acquired Companies to be an issuer or other obligor with respect to the Debt Financing prior to the Closing.

 

Section 6.7      Section 280G Approval. To the extent applicable, the Company shall use its reasonable best efforts to (i) no later than five (5) Business Days prior to the Closing, solicit waivers from each Person who has a right to any payments and/or benefits as a result of or in connection with the transactions contemplated herein that would be deemed to constitute “excess parachute payments” (within the meaning of Section 280G of the Code (“Section 280G”)) (the “Waived 280G Benefits”), and (ii) no later than three (3) Business Days prior to the Closing submit the Waived 280G Benefits to the stockholders of the Company for

 

 

 

 

approval, in a manner complying with Sections 280G(b)(5)(A)(ii) and 280G(b)(5)(B) of the Code.  Prior to soliciting such waivers and approval, the Company shall provide drafts of such waivers and approval materials to Parent for its reasonable review and approval (which approval will not be unreasonably withheld, conditioned or delayed) no later than two (2) Business Days prior to soliciting such waivers and soliciting such approval.  Prior to the Effective Time, the Company shall deliver to Parent evidence reasonably acceptable to Parent that a vote of the stockholders of the Company was solicited in accordance with the foregoing provisions of this Section 6.7 and that either (i) the requisite number of votes of the stockholders of the Company was obtained with respect to the Waived 280G Benefits (the “280G Approval”) or (ii) the 280G Approval was not obtained, and, as a consequence, the Waived 280G Benefits shall not be made or provided.

 

Section 6.8      FIRPTA Certificate. Subject to Section 7.2(b), on or prior to the Closing Date, the Company shall furnish to Parent (i) a certificate of the Company dated as of the Closing Date and signed by a responsible corporate officer of the Company, stating that interests in the Company are not United States real property interests because the Company is not, and has not been at any time during the five (5) years preceding the date of such certification, a United States real property holding corporation as defined in Section 897(c)(2) of the Code, and (ii) proof reasonably satisfactory to the Parent that the Company has provided notice of such certification to the Internal Revenue Service in accordance with the provisions of Treasury Regulations Section 1.897-2(h)(2).

 

Section 6.9      Stockholder Consent. No later than forty-eight (48) hours following the execution and delivery of this Agreement by all Parties, the Company shall deliver to Parent evidence of the Written Consent.

 

 

 

Section 6.11    Hedging Agreements. Unless otherwise agreed between Parent and the Company, the Company shall (a) cause all interest rate swaps, caps, collars or similar agreements designed to protect the Acquired Companies against interest rate fluctuations, to be terminated on or prior to the Closing, and (b) maintain in effect all hedging or similar arrangements of the Acquired Companies designed to protect the Acquired Companies against foreign currency exchange rate fluctuations.

 

Section 6.12    Resignation Letters.   On the Closing Date, the Company shall deliver to Parent written resignations, effective as of or prior to the Closing and in form and substance reasonably acceptable to Parent, from the directors, managers and officers of the Acquired Companies affiliated with the Oak Hill Entities as may be requested by Parent at least three (3) Business Days prior to the Closing Date.

 

Section 6.13    Deferred Stock Units.   The Company shall use its reasonable best efforts to cause (a) all outstanding deferred stock units issued under the Deferred Stock Unit Plan that have been reflected on the books and records of the Company in respect of calendar year 2013 (the “2013 DSUs”) to be cancelled in exchange for cash payments that shall be paid out of the Cash on Hand prior to 11:59 p.m. (Cincinnati, Ohio) on the day preceding the Closing Date (and in a manner that would result in there being no further liabilities or obligations to Parent in respect of the 2013 DSUs following the Effective Time) or otherwise fully reflected in the Estimated Closing Statement as a Company Transaction Expense, pursuant to written agreements in a form reasonably acceptable to Parent, and (b) all rights that any employees may have to receive deferred stock units or any other payments under the Deferred Stock Unit Plan (including any rights to receive deferred stock units under such employee’s employment agreement) in respect of calendar year 2014 (the “2014 DSUs”) to be amended to provide that such employee shall only be entitled to receive cash in lieu of receiving deferred stock units in an amount equal to the value of the deferred stock units, if any (the “2014 Cash Payment”), to which such employee may be entitled in respect of the 2014 DSUs pursuant to a written agreement in a form reasonably acceptable to Parent and in a manner that would result in the termination of the Deferred Stock Unit Plan and there being no further liabilities or obligations thereunder to Parent following the Effective Time other than payment of the 2014 Cash Payment.   Prior to the Closing, the Company shall not issue any deferred stock units under the Deferred Stock Unit Plan.

 

Section 6.14    Reporting Subsidiary Senior Notes Tender Offer.

 

 

 

 

 

 

Section 6.15    Title to Company Intellectual Property. The Company shall, and shall cause the Acquired Companies to, use commercially reasonable efforts to, within a reasonable period of time prior to the Closing Date, take all reasonable actions as may be reasonably required to reflect an Acquired Company as the owner of good and valid title to its material registrations and pending applications, free and clear of any security interest or Lien other than Permitted Liens, and to eliminate or correct any gaps or defects in the chain of title, ownership or lien status thereof.

 

 

 

Section 7.1      Conditions Precedent to Each Party’s Obligations. The respective obligations of each Party to consummate the transactions contemplated hereby will be subject to the satisfaction, at or prior to the Closing, of all of the following conditions, any one or more of which may be waived in writing at the option of the affected Party:

 

 

 

Section 7.2      Conditions Precedent to Obligations of Parent, Intermediate Holdco and Merger Sub. The obligations of Parent, Intermediate Holdco and Merger Sub under this Agreement to consummate the transactions contemplated hereby will be subject to the satisfaction, at or prior to the Closing, of all of the following conditions, any one or more of which may be waived in writing at the option of Parent:

 

 

 

 

Section 7.3      Conditions Precedent to Obligations of the Company. The obligations of the Company under this Agreement to consummate the transactions contemplated hereby will be subject to the satisfaction, at or prior to the Closing, of all of the following conditions, any one or more of which may be waived in writing at the option of the Company:

 

 

 

 

 

 

 

Section 7.4      Frustration of Closing Conditions. None of Parent, Intermediate Holdco or Merger Sub may rely on the failure of any condition set forth in Sections 7.1 (Conditions Precedent to Each Party’s Obligations) or Section 7.2 (Conditions Precedent to Obligations of Parent and Merger Sub) to be satisfied if such failure was caused by the failure of Parent, Intermediate Holdco or Merger Sub to perform any of its obligations under this Agreement. The Company may not rely on the failure of any condition set forth in Sections 7.1 (Conditions Precedent to Each Party’s Obligations) and 7.3 (Conditions Precedent to Obligations of the Company) to be satisfied if such failure was caused by its failure to perform any of its obligations under this Agreement.

 

 

 

Section 8.1      Transfer Taxes. All federal, state, local, foreign and other Transfer Taxes applicable to, imposed upon or arising out of the Merger shall be borne 100% by Parent. Parent shall file all necessary Tax Returns and other documentation with respect to all such Taxes, fees and charges, and, if required by applicable Law, the Parties will, and will cause their Affiliates to, join in the execution of any such Tax Returns and other documentation.

 

Section 8.2      Access to Information. For a period of six (6) years after the Closing, Parent and the Surviving Corporation shall afford (and shall cause their respective Subsidiaries to afford) the  Representative and its representatives reasonable access during normal business hours, to the books and records of Parent and the Acquired Companies for a reasonable purpose (and shall permit such Persons to examine and copy such books and records to the extent reasonably requested by such party) and shall cause their Affiliates to furnish all information reasonably requested by the Representative and its representatives relating to the ownership or operations of the Acquired Companies prior to the Effective Time, provided, however, that subject to Section 10.17 (Provision with Respect to Legal Representation), nothing in this Section 8.2 shall require Parent or the Surviving Corporation to furnish to the Representative and its representatives any materials prepared by the Surviving Corporation’s financial or legal advisors which is subject to an attorney/client privilege or an attorney work product privilege or which may not be disclosed pursuant to applicable Law or unless the Representative and its representatives enter into a confidentiality agreement that is satisfactory to the Parent. For a period of six (6) years following the Closing, or such longer period as may be required by applicable Law or necessitated by applicable statutes of limitations, Parent shall, and shall cause the Acquired Companies to, maintain all such books and records in the jurisdiction in which such books and records were located prior to the Closing Date and shall not destroy or dispose of any such books and records.

 

Section 8.3      Director and Officer Liability and Indemnification.

 

 

 

 

 

 

Section 8.4      Employee Matters.

 

 

 

 

 

 

 

 

 

Section 9.1      Termination of Agreement. Certain of the Parties may terminate this Agreement as provided below:

 

 

 

 

 

 

 

 

Section 9.2      Effect of Termination. In the event of any termination of this Agreement as provided in Section 9.1 (Termination of Agreement), this Agreement shall forthwith become wholly void and of no further force and effect and there shall be no liability on the part of any Party to any other Party, except that (i) the provisions of this Section 9.2 (Effect of Termination), Section 6.6(b) (Financing Cooperation) with respect to Parent’s Financing Cooperation Obligations, Section 9.3 (Termination Fee) and Article X (Miscellaneous) shall remain in full force and effect, and (ii) except as provided in, and subject to, Section 9.3 (Termination Fee), termination shall not preclude any Party from suing any other Party for any Willful Breach of this Agreement that occurred prior to such termination. The Confidentiality Agreement and the Guarantee shall survive any termination of this Agreement, subject to and in accordance with its terms and nothing in this Section 9.2 shall be construed to discharge or relieve any party to the Confidentiality Agreement or the Guarantee of its obligations thereunder.

 

Section 9.3      Termination Fee.

 

 

 

 

 

 

 

 

Section 10.1    Nonsurvival of Representations, Warranties and Covenants. None of the representations, warranties, covenants and other agreements, in each case, contained in this Agreement, or in any instrument or certificate delivered by any Party at Closing, will survive the Closing, and none of the Parties or the Company Securityholders shall have any liability to each other after the Closing for any breach thereof, except for covenants and agreements which contemplate performance after the Closing or otherwise expressly by their terms survive the Closing, each of which will survive in accordance with its terms; provided that nothing in this Agreement shall prevent Purchaser or the Surviving Corporation from bringing a cause of action hereunder with respect to actual fraud under this Agreement.

 

Section 10.2    Expenses. Except as otherwise provided in this Agreement, each of Parent, Intermediate Holdco, Merger Sub, and the Company will bear its own costs and expenses (including legal fees and expenses) incurred in connection with this Agreement and the transactions contemplated hereby. Without limiting the foregoing or any other provision in the Agreement, Parent will be responsible for, and pay, 100% of (i) any filing fees in connection with the notification and report form under the HSR Act and any foreign anti-competition or antitrust filing(s), (ii) the fees and expenses of the Escrow Agent relating to the Escrow Agreement, (iii) all Transfer Taxes as contemplated by Section 8.1 (Transfer Taxes), and (iv) the run-off policy of directors’ and officers’ liability insurance and other expenses contemplated to be paid by Parent pursuant to Section 8.3 (Director and Officer Liability and Indemnification).

 

 

 

Section 10.3    No Third-Party Beneficiaries.    Except (i) as set forth in Sections 6.6 (with respect to the Financing Cooperation Indemnity), 8.3 (Director and Officer Liability and Indemnification), 8.5 (Mutual Release), 10.16 (Non-Recourse), 10.17 (for the benefit of Paul, Weiss, Rifkind, Wharton & Garrison LLP), and this Section 10.3, and (ii) following the Effective Time, the rights of the Company Securityholders to receive the Final Merger Consideration in accordance with Article III (Merger Consideration; Conversion of Securities; Exchange of Certificates, this Agreement shall not confer any rights or remedies upon any Person other than the Parties and their respective successors and permitted assigns. Notwithstanding the foregoing, each Debt Financing Source is an express third party beneficiary of Section 9.3 (Termination Fee), Section 10.9 (Governing Law; Submission of Jurisdiction; Waiver of Jury Trial; Selection of Forum), Section 10.10 (Amendments and Waivers), Section 10.16 (Non-Recourse) and this Section 10.3.

 

 

Section 10.5    Succession and Assignment. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors and permitted assigns. No Party may assign either this Agreement or any of its rights, interests or obligations hereunder without the prior written approval of Parent and the Company (and following the Closing, the Representative); provided, that Parent may, at or following the Closing, without the consent of the Company or the Representative, assign or otherwise transfer is rights, interests or obligations hereunder to any of its Debt Financing Sources for purposes of creating a security interest herein or otherwise assigning such rights, interests or obligations as collateral in respect of the Debt Financing.

 

Section 10.6    Rights Cumulative. Except as otherwise expressly limited by this Agreement, all rights and remedies of each of the Parties will be cumulative, and the exercise of one or more rights or remedies will not preclude the exercise of any other right or remedy available under this Agreement or applicable Law.

 

Section 10.7    Headings. The section headings contained in this Agreement are inserted for convenience only and shall not affect in any way the meaning or interpretation of this Agreement.

 

Section 10.8    Notices. All notices, requests, demands, claims and other communications hereunder will be in writing. Any notice, request, demand, claim or other communication hereunder shall be deemed duly given (i) when delivered personally to the recipient, (ii) one (1) Business Day after being sent to the recipient by reputable overnight courier service (charges prepaid), (iii) one (1) Business Day after being sent to the recipient by facsimile transmission, by PDF file (portable document format file) or electronic mail, or (iv)

 

 

 

four (4) Business Days after being mailed to the recipient by certified or registered mail, return receipt requested and postage prepaid, and addressed to the intended recipient as set forth below:

 

 

 

 

 

Section 10.9    Governing Law; Submission of Jurisdiction; Waiver of Jury Trial; Selection of Forum.

 

 

 

 

 

 

 

 

 

Section 10.10  Amendments and Waivers. No amendment of any provision of this Agreement shall be valid unless the same shall be in writing and signed by all of the Parties. No waiver by any Party of any provision of this Agreement or any default, misrepresentation or breach of warranty or covenant hereunder, whether intentional or not, shall be valid unless the same shall be in writing and signed by the Party making such waiver, nor shall such waiver be deemed to extend to any prior or subsequent default, misrepresentation or breach of warranty or covenant hereunder or affect in any way any rights arising by virtue of any prior or subsequent such occurrence. In the event that any party seeks an amendment to or waiver of Section 9.3 (Termination Fee), Section 10.3 (No Third-Party Beneficiaries), Section 10.9 (Governing Law; Submission of Jurisdiction; Waiver of Jury Trial; Selection of Forum), Section 10.16 (Non-Recourse) and this Section 10.10 (Amendments and Waivers) that is adverse to the Debt Financing Sources, the prior written consent of the Debt Financing Sources shall be required before any such amendment or waiver may become effective.

 

Section 10.11  Severability. Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the validity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other situation or in any other jurisdiction.

 

Section 10.12  Construction. The Parties have participated jointly in the negotiation and drafting of this Agreement. In the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the Parties, and no presumption or burden of proof shall arise favoring or disfavoring any Party by virtue of the authorship of any of the provisions of this Agreement.

 

Section 10.13  Incorporation of Exhibits, Schedules and Disclosure Letter. The exhibits, schedules and Disclosure Letter identified in this Agreement are incorporated herein by reference and made a part hereof.

 

Section 10.14  Specific Performance.

 

 

 

 

 

 

 

 

Section 10.15  Representative.

 

 

 

 

 

 

 

Section 10.16        Non-Recourse. Except as set forth in the Confidentiality Agreement, Equity Financing Commitments and Guarantee (i) this Agreement may be enforced only against, and any Proceeding based upon, arising out of, or related to this Agreement or the transactions contemplated hereby may be brought only against, the entities that are expressly named as Parties and then only with respect to the specific obligations set forth herein with respect to such Party and (ii) with respect to each Party, no past, present or future director, officer, employee, incorporator, member, partner, shareholder, agent, attorney, advisor, lender or representative or Affiliate of such named Party, and none of the other Company Related Parties or the other Parent Related Parties (other than the Equity Financing Source and the Guarantor), shall have any liability (whether in contract or tort, at law or in equity or otherwise, or based upon any theory that seeks to impose liability of an entity party against its owners or Affiliates) for any one or more of the representations, warranties, covenants, agreements or other obligations or liabilities of such named Party or for any claim based on, arising out of, or related to this Agreement or the transactions contemplated hereby. The provisions of this Section 10.16 are intended to be for the benefit of, and enforceable by the directors, officers, employees, incorporators, members, partners, stockholders, agents, attorneys, advisors, lenders and other representatives and Affiliates and the other Company Related Parties and the other Parent Related Parties (other than the Equity Financing Source and the Guarantor) referenced in this Section 10.16 and each such Person shall be a third-party beneficiary of this Section 10.16. This Section 10.16 is intended to benefit and may be enforced by the Debt Financing Sources and shall be binding on all successors and assigns of the Company.

 

 

 

 

Section 10.17         Provision With Respect to Legal Representation. Each of the Parties hereby agrees, on its own behalf and on behalf of its directors, members, partners, officers, employees and Affiliates, that (i) Paul, Weiss, Rifkind, Wharton & Garrison LLP may serve as counsel to the Representative and its Affiliates, on the one hand, and the Acquired Companies, on the other hand, in connection with the negotiation, preparation, execution and delivery of this Agreement, the other documents referred to herein and the consummation of the transactions contemplated by this Agreement and the other documents referred to herein, and (ii) following consummation of the transactions contemplated hereby, Paul, Weiss, Rifkind, Wharton & Garrison LLP may serve as counsel to the Representative and any manager, director, member, partner, officer, employee or affiliate of the Representative, in connection with any litigation, claim or obligation arising out of or relating to this Agreement or the transactions contemplated by this Agreement (any such representation, the “Post-Closing Representation”), notwithstanding such representation. Each of the Parties hereby does, and shall cause each of its Affiliates to, consent to the foregoing arrangements and irrevocably waive (and will not assert) any actual or potential conflict of interest or any objection that may arise from any representation by Paul, Weiss, Rifkind, Wharton & Garrison LLP expressly permitted hereunder (notwithstanding the fact that Paul, Weiss, Rifkind, Wharton & Garrison LLP may have represented, and may currently or in the future represent, Parent and/or any of its Affiliates (including any portfolio companies) or representatives with respect to matters unrelated to this Agreement, the other documents referred to herein and the transactions contemplated in this Agreement and the other documents referred to herein). Parent and the Company acknowledge that the foregoing provision applies whether or not Paul, Weiss, Rifkind, Wharton & Garrison LLP provides legal services to the Surviving Corporation or any of its subsidiaries after the Closing Date. Each of Parent and the Company, on their own behalf and on behalf of their directors, members, officers employees and Affiliates, and each of their successors and assigns, hereby irrevocably acknowledges and agrees that all communications between the Representative and its counsel and the Acquired Companies and its counsel, including Paul, Weiss, Rifkind, Wharton & Garrison LLP, made in connection with the negotiation, preparation, execution, delivery and performance under, or any dispute or proceeding arising out of or relating to, this Agreement, any agreements contemplated by this Agreement or the transactions contemplated by any of the foregoing, or any matter relating to any of the foregoing, are privileged communications between such Party and such counsel and from and after the Closing do not pass to Parent or the Surviving Corporation notwithstanding the Merger and instead survive, remain with and are controlled by the Representative (the “Privileged Communications”), without any waiver thereof. Neither the Surviving Corporation nor any Person purporting to act on behalf of or through Parent or the Surviving Corporation or any of their Affiliates, will seek to obtain the same by any process. Parent and the Surviving Corporation, together with any of their respective affiliates, subsidiaries, successors or assigns, agree that no Person may use or rely on any of the Privileged Communications, whether located in the records or email accounts of the Company or the Surviving Corporation, or otherwise (including in the knowledge of their officers and employees), in any action against or involving any of the Parties after the Closing. Parent and Surviving Corporation agree not to assert that the privilege has been waived as to the Privileged Communications that may be located in the records or email server (or in the knowledge of the officers and employees) of the Company or the Surviving Corporation. From and after the Closing, each of Parent and the Surviving Corporation, on behalf of itself and its Affiliates, waives and will not assert any attorney-client privilege with respect to any communication

 

 

 

between Paul, Weiss, Rifkind, Wharton & Garrison LLP and the Acquired Companies occurring prior to the Closing in connection with any Post-Closing Representation. Parent acknowledges that the Company and Paul, Weiss, Rifkind, Wharton & Garrison LLP will be relying on the waiver provided hereby and that this Section 10.17 is intended for the benefit of, and to grant third party rights to Paul, Weiss, Rifkind, Wharton & Garrison LLP to enforce this Section 10.17. Parent further acknowledges that its consent and waiver under this Section 10.17 is voluntary and informed, and that it has obtained independent legal advice with respect to this consent and waiver. This Section 10.17 shall amend, restate and supersede any other conflict waiver entered by Parent or one of its Affiliates in favor of Paul, Weiss, Rifkind, Wharton & Garrison LLP in connection with the transactions contemplated by this Agreement, including without limitation any such conflict waiver in the Confidentiality Agreement.

 

Section 10.18        Counterparts. This Agreement may be executed in one or more counterparts (including by means of facsimile or by PDF file (portable document format file)), each of which shall be deemed an original but all of which together will constitute one and the same instrument.