Section 5.02 Pre-Closing Access. Subject to applicable Law and any
other confidentiality obligations or similar restrictions that may be applicable to information furnished to Seller or any of its Subsidiaries by third parties that may be in Seller’s or any of its Subsidiaries’ possession from time to time,
from the date hereof until the Closing, Seller shall, and shall cause its Subsidiaries to, (a) give Buyer and its Representatives reasonable access to the properties, books, contracts, personnel, assets, Tax Returns and records of the Group
Companies to the extent reasonably necessary for purposes of Buyer’s transition planning for the Business, (b) furnish to Buyer and its Representatives such financial and operating data and other information relating exclusively to the Group
Companies or the Business as such Persons may reasonably request, (c) cause the appropriate executive officers of Seller and its Subsidiaries to cooperate with Buyer in its investigation of the Group Companies, and (d) permit Buyer and its
Representatives to make copies and inspections of any such information as Buyer may reasonably request; provided, that, in each case, such access may be limited to the extent Seller reasonably determines that such access would
jeopardize the health and safety of any of its or its Subsidiaries’ employees; provided, however, that Seller shall use its commercially reasonable efforts to allow for such access or as much of such access as is possible in a manner
that does not jeopardize the health and safety of such employees. Any investigation pursuant to this Section 5.02 shall be conducted (i) in accordance with applicable Laws, (ii) during normal business hours, (iii) in such manner as not
to interfere unreasonably with the normal conduct of the Business or any of the Retained Businesses, (iv) subject to restrictions under the Leases, if any, and (v) at Buyer’s sole cost and expense. Notwithstanding the foregoing, (A) Buyer shall
not have access to (x) personnel records of the Business Employees relating to individual performance or evaluation records, medical histories or other information that in Seller’s opinion (in its sole discretion) is sensitive or the disclosure
of which could subject Seller or any of its Subsidiaries to risk of Liability, (y) any real property owned or leased by Seller or its Subsidiaries for purposes of conducting any invasive or subsurface environmental sampling or testing without
the prior written consent of Seller at Seller’s sole discretion, or (z) any information to the extent relating to any Combined Taxes or Combined Tax Returns and (B) Seller and its Subsidiaries may withhold (y) any information relating to the
sale process for the Business and information and analysis (including financial analysis) relating thereto and (z) any document or information, as and to the extent necessary to avoid violation or waiver, if the disclosure of such document or
information could reasonably be expected to violate any Law or would result in the waiver of any legal privilege or work-product privilege; provided that, to the extent practicable and in
accordance with such Law, and in a manner that does not result in the waiver of any such privilege, Seller and its Subsidiaries shall make reasonable and appropriate substitute disclosure arrangements under circumstances in which the
restrictions of this subclause (z) apply. Seller shall have the right to have a Representative present at all times during any such inspections, interviews and examinations. Buyer shall hold in confidence all such information on the terms and
subject to the conditions contained in the Confidentiality Agreement.
Section 5.03 Regulatory Filings.
(a) Subject to the terms and conditions of this Agreement, Buyer
and Seller shall each use their reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary or desirable under Law to consummate the transactions contemplated by this Agreement, including (i) preparing and filing as promptly as practicable with any Governmental Authority all documentation to effect
all necessary filings, notices, petitions, statements, registrations, submissions of information, applications and other documents and (ii) obtaining and maintaining all approvals, consents,
clearances, registrations, permits, authorizations and other confirmations required to be obtained from any Governmental Authority that are necessary,
proper or advisable to consummate the transactions contemplated by this Agreement (collectively, the “Regulatory Approvals”).
(b) In furtherance and not in limitation of the foregoing, each of Buyer and, where applicable, Seller shall, and shall cause their respective Affiliates to, (i) make or cause
to be made all filings required of each of them or any of their respective Affiliates under the HSR Act and applicable Regulatory Laws with respect to the transactions contemplated hereby as promptly as practicable and, in any event, within ten (10) Business Days after the date hereof, (ii) use reasonable best efforts to provide an appropriate response to any request under any Regulatory Law for additional information, documents or other materials received by each of them or any of their respective Affiliates from any
Governmental Authority in respect of such filings or such transactions and (iii) cooperate with each other in connection with any such filing and in connection with resolving any investigation or
other inquiry of any Governmental Authority under any Regulatory Law with respect to any such filing or any such
transaction. Each Party shall use its reasonable best efforts to furnish to the other Party all information required
for any application or other filing to be made pursuant to any Regulatory Law in connection with the transactions contemplated by this Agreement. Notwithstanding the foregoing, any Party may, as it deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other Parties
under this Section 5.03 as “outside counsel only.” Such materials and the information contained therein shall be given only to the outside counsel of the recipient Party, and the recipient Party shall cause such outside
counsel not to disclose such materials or information to any employees, officers, directors or other Representatives of the recipient Party, unless express written permission is obtained in advance from the source of the materials. Each Party shall promptly inform the other Party hereto of any substantive oral communication with, and provide copies of written communications
with, any Governmental Authority regarding any such filing or any such transaction. No Party shall
independently participate in any meeting with any Governmental Authority in respect of any such filing or any investigation or other inquiry with respect to the transactions contemplated by this Agreement without giving the other Party prior notice of
the meeting and, to the extent permitted by such Governmental Authority, the opportunity to attend or participate.
Subject to applicable Law, the Parties will consult and cooperate with one another in connection with any analyses, appearances, presentations, memoranda,
briefs, arguments, opinions and proposals made or submitted by or on behalf of any Party relating to any
Regulatory Approval. Whether or not the Closing occurs, filing fees in connection with obtaining the Regulatory Approvals with respect to the transactions contemplated hereby shall be borne equally by Buyer and Seller.
(c) In furtherance and not in limitation of the actions and obligations described in Section 5.03(b),
Buyer shall use reasonable best efforts to promptly resolve such objections, if any, as may be asserted by any Governmental Authority with respect to the
transactions contemplated by this Agreement in connection with any Regulatory Approval.
(d) Buyer agrees, on behalf of itself and its Affiliates, that, between the date of this Agreement and the
Closing, Buyer shall not, and shall cause its Affiliates not to, directly or indirectly, acquire, purchase, lease or license (or agree to acquire, purchase, lease or license), by merging with or into or consolidating with, or by purchasing a
substantial portion of the assets of or equity in, or by any other manner, any business or any corporation, partnership, association or other business organization or division or part thereof, or any securities or collection of assets, or
take any other action or refrain from taking any action, if doing so would reasonably be expected to (i) materially delay obtaining, or materially increase the risk of not obtaining, any consent, clearance, waiting period expiration or
termination, approval, authorization or permit of any Governmental Authority in connection with the transactions contemplated by this Agreement or (ii) otherwise materially restrict, prevent, prohibit, impede or delay the consummation of the
transactions contemplated by this Agreement.
Section 5.04 Shared Contracts. To the extent Seller or any Seller Group Entity
identifies or enters into any additional Shared Contracts following the date hereof, Seller shall promptly provide Buyer with an updated version of the Shared Contracts Schedule and a copy of such Shared Contract. With respect to any Shared
Contract, including the Shared Contracts set forth on Section 5.04 of the Disclosure Schedule, that is not contemplated by the Transition Services Agreement, Buyer and Seller shall, following the date hereof, cooperate and determine,
acting reasonably and in good faith, the appropriate manner (if any) to divide, amend, modify, replicate, assign or novate (in whole or in part) the rights and obligations under and in respect of such Shared Contract in a manner necessary or
appropriate to permit the Group Companies to operate in the Business in the manner in which it was conducted during the twelve (12) months prior to the Closing Date. Neither party shall be required to make any payments to any third parties,
provide any accommodation (financial or otherwise) or incur any Liability or commence any litigation in connection with such cooperation.
Section 5.05 Post-Closing Transfers.
(a) In the event that at any time or from time to time after the Closing Date, the Seller or any of its
Subsidiaries receives or otherwise possesses any Business Asset (other than Permits to the extent non-transferable) or other property, asset, funds, notice or other document (including cash and cash equivalents) that is intended for or should
belong to Buyer or any Group Company pursuant to this Agreement, Seller shall, or shall cause such Subsidiaries to promptly transfer, or cause to be transferred, such property, asset, funds, notices, or other documents to Buyer or its
designee, for no additional consideration, and to the extent such asset is cash or cash equivalents, Seller shall provide a general explanation or description of such transfer. Prior to any such transfer, Seller shall hold such asset in trust
for the benefit of Buyer. Until such time that Seller or one of its Subsidiaries transfers such Business Asset to the Buyer in accordance with this Section 5.05, Seller, on behalf of itself and its current or future Affiliates, hereby
grants to Buyer and its Affiliates (x) a non-exclusive, royalty-free, fully paid-up, worldwide, irrevocable, sub-licensable and transferable right and license (or sub-license, as the case may be) to fully use, practice and otherwise exploit
such Business Asset and (y) a covenant not to sue with respect to Buyer’s use, practice and exploitation of any Intellectual Property Rights associated with such Business Asset, in each case under clauses (x) and (y), effective as of the
Closing Date.
(b) In the event that at any time or from time to time after the Closing Date, Buyer or any of its
Subsidiaries, including the Group Companies, receives or otherwise possesses any property, asset, funds, notice or other document (including cash and cash equivalents) that is intended for or should belong to the Retained Businesses pursuant
to this Agreement (in each case, other than any Business Asset), Buyer shall promptly transfer, or cause to be transferred, such property, asset, funds, notice or other document to the appropriate Retained Company, designated by Seller, for
no consideration and net of Buyer’s out-of-pocket costs to effectuate such transfer, and to the extent such asset is Cash and Cash Equivalents, Buyer shall provide a general explanation or description of such transfer. Prior to any such
transfer, Buyer shall hold such asset in trust for the benefit of Seller.
(c) In the event that at any time or from time to time after the Closing Date, the Retained Companies incur
or otherwise have retained any Business Liability, Seller shall promptly transfer, or cause to be transferred, such Liability to Buyer, and Buyer shall accept and assume such Liability and indemnify Seller for any Liabilities paid or incurred
by the Retained Companies with respect to such Liability. In the event that at any time or from time to time after the Closing Date, Buyer or any of its Affiliates, including the Group Companies, incur or otherwise have been transferred any
Retained Business Liability, Buyer shall promptly transfer, or cause to be transferred, such Liability to the appropriate Retained Company, designated by Seller, and such designated Retained Company shall accept and assume such Liability and
indemnify Buyer for any Liabilities paid or incurred by Buyer or any of its Affiliates, including the Group Companies, with respect to such Liability.
Section 5.06 Intercompany Balances; Affiliate Transactions.
(a) All intercompany balances between any of the Group Companies, on the one hand, and any of the Retained
Companies, on the other hand, shall be eliminated by discharge or otherwise in their entirety effective at or prior to the Adjustment Time.
(b) Except for the Transaction Documents or the Shared Contracts, at or prior to the Adjustment Time, Seller
shall take all actions necessary to cause any and all Contracts between any Retained Company, on the one hand, and any Group Company, on the other hand, to have been terminated without any continuing Liability or obligation of any Group
Company.
Section 5.07 Group Company Guarantees.
(a) From the date hereof until the earlier of (i) the date that is eighteen (18) months following the Closing Date and (ii) the date on which the Group Companies, as Subsidiaries of Buyer, have had audited financial statements prepared in respect of one full fiscal year (such earlier date, the “Audited Financials Date”), Buyer
and Seller shall each use its commercially reasonable efforts to obtain from the respective beneficiary of each Group Company Guarantee, valid and binding written unconditional
releases of the Retained Companies, as applicable, from any Liability, whether arising before, on or after the Closing Date, under any Group Company Guarantees, which shall be effective as of the Closing; provided that the foregoing shall not require Buyer
nor any of its Affiliates to make any payments, provide any accommodation (financial or otherwise), incur any Liability, furnish letters of credit, institute escrow arrangements, post surety or
performance bonds or make other arrangements as the counterparty may request prior to the Audited Financials Date.
(b) From and after the Audited Financials Date, Buyer and Seller shall each use its commercially reasonable efforts to obtain from the respective beneficiary of a Group Company Guarantee, on or before the Closing Date, valid and binding written unconditional releases of the Retained Companies, as applicable, from any Liability, whether arising before, on or
after the Closing Date, under any Group Company Guarantees, including, in the case of Buyer, furnishing letters of
credit, instituting escrow arrangements, posting surety or performance bonds or making other arrangements as the counterparty may request.
(c) If any Group Company Guarantee has not been fully and
unconditionally released as of the Closing, (i) Buyer shall indemnify and hold harmless the Retained Companies for
any Damages arising from or relating to claims made by the beneficiary of such Group Company Guarantee against the Retained Companies, including any claim or demand for payment made on any Retained Company under, and any fees in connection with the maintenance of, any such Group Company Guarantee (in
each case, if applicable, in proportion to the amount relating to the Business relative to any amount not relating to the Business) and (ii) Buyer shall not permit any of the Group Companies
to (A) renew or extend the terms of, (B) increase its obligations under, (C) transfer to another third-party or (D) amend in any manner that would increase the
Liabilities of the Retained Companies in respect of the Group Company Guarantee, any Contract for which any Retained Company is, or would reasonably be expected to be, liable under such Group Company Guarantee.
(d) In the event that any Group Company Guarantee has not been fully and unconditionally released as of the
date that is eighteen (18) months following the Closing Date, thereafter, the Parties acknowledge and agree that (i) each Retained Company may, in its sole discretion, take any action to terminate, obtain release of or otherwise limit its
Liability under any and all outstanding Group Company Guarantees and (ii) none of the Retained Companies will have any obligation to renew any letters of credit or surety or performance bonds issued on behalf of any Group Company or the
Business.
Section 5.08 R&W Insurance Policy. Promptly following the
execution of this Agreement, Buyer will pay the required deposit fee and all other payments or fees and take all necessary actions to bind Buyer’s coverage under the R&W Insurance Policy. Buyer will comply in all material respects with all
of its obligations under the R&W Insurance Policy necessary to the binding of the R&W Insurance Policy. The R&W Insurance Policy shall provide that the insurers named therein (the “R&W Insurer”) shall have no right of
subrogation against the Retained Companies, and the R&W Insurer has waived any such right of subrogation, except in the case of Fraud. For the avoidance of doubt, Buyer acknowledges and agrees that the obtaining of the R&W Insurance
Policy is not a condition to the Closing and Buyer shall remain obligated, subject only to the satisfaction or waiver of the conditions set forth in Article VIII of this Agreement, to consummate the transactions contemplated by this
Agreement. In addition, Buyer acknowledges and agrees that the obtaining of the R&W Insurance Policy shall not impede or delay the Closing. Buyer will promptly pay all premiums required for the full term of the R&W Insurance Policy, and
will otherwise comply in all material respects with all of its obligations under the R&W Insurance Policy. Buyer shall not agree to any amendment, variation or waiver of the R&W Insurance Policy (or do anything which has a similar
effect) which would limit the effect of the insurer’s waiver of subrogation rights against Seller without Seller’s prior written consent.
Section 5.09 Insurance. Notwithstanding the acquisition of the
Purchased Interests by Buyer or the assignment, transfer and conveyance of the Assigned Business Insurance Claims pursuant to the Pre-Closing Transfers, Seller shall not assign, transfer or convey to Buyer, any insurance policies of Seller or
its Affiliates (excluding any insurance policies of and solely with respect to the Group Companies or their respective predecessors) which relate to, cover or insure Seller or its Affiliates for loss of or Liability arising from the Business or
the use, ownership or operation of the Business Assets. Buyer shall not, and shall cause its Affiliates (including, after the Closing, the Group Companies) not to, assert any right, claim or interest to or under any insurance policies of Seller
or its Affiliates (excluding any insurance policies of and solely with respect to the Group Companies or their respective predecessors) or rights to proceeds thereof in effect on or prior to the Closing Date relating to the Business or the
Group Companies; provided, that with respect to events or circumstances relating to the Business that occurred or existed prior to the Closing Date and that are covered by any occurrence-based third party insurance policies of Seller or
its Affiliates, Seller shall, and shall cause its Affiliates to, and Seller shall and shall cause its Affiliates to reasonably cooperate with Buyer to, make claims under such policies and to remit to Buyer the net proceeds of any recoveries in
respect of such claims, except to the extent that such claims are covered by insurance policies of Buyer or its Affiliates; provided that Buyer shall bear a proportional amount of any additional premiums, deductibles, self-insured
retentions or other out-of-pocket costs and expenses incurred in connection therewith associated with claims requested by Buyer under such occurrence based third party insurance policies, and shall be liable for all uninsured and uncollectible
amounts of such claims.
Section 5.10 Legal Proceedings; Production of Witnesses.
(a) Following the Closing Date, Seller shall have the exclusive right to conduct the defense (and determine the settlement) of any Action with respect to any Retained Business and Buyer (or any of its Affiliates, including any Group Company) shall
have the exclusive right to conduct the defense (and determine the settlement) of any Action with respect to the Business.
(b) From and after the Closing, Seller, on the one hand, and Buyer, on the other hand, shall use their commercially reasonable efforts to make available to each other, upon reasonable written request,
their (and their Affiliates’) respective officers, directors, employees and agents for fact finding, consultation and interviews and as witnesses to the extent that any such individual may reasonably be required in connection with any Actions in which the requesting Party may from time to time be involved
relating to the conduct of the Business or the Retained Businesses prior to or after the Closing. Reasonable access to such Persons shall be granted during normal business hours at a location and in a manner reasonably
calculated to minimize disruption to such individuals, the Business and the Retained Businesses, as applicable. Seller and Buyer agree to reimburse each other for reasonable and documented out-of-pocket expenses, including attorneys’ fees, but excluding officers’ or
employees’ salaries or other wages, incurred by any other Party in connection with providing individuals and witnesses
pursuant to this Section 5.10(b).
(c) Notwithstanding the foregoing, the provisions in Article VI shall govern with respect to Tax-related matters to the extent any provision in Article VI is in conflict with Section 5.10(a)
or Section 5.10(b). For the avoidance of doubt, no Party shall have an obligation to cooperate, make available personnel or disclose any documents or other information pursuant to Section 5.10(a), Section 5.10(b), Section 5.11(b) or Article VI, if Seller or any of their Affiliates, on the one hand,
and Buyer or any of its Affiliates, on the other hand, are adverse parties in any Action and such assistance, testimony, documents or other information is reasonably pertinent thereto; provided that,
nothing in this Section 5.10(c) shall limit in any respect any rights a Party may have with respect to discovery or the production of documents or other information in connection with any such Action.
Section 5.11 Retention of Books and Records and Post-Closing Access.
(a) The Retained Companies may retain a copy of any or all of
the Business Records and any other materials that are otherwise in the possession or under the control of any
Retained Company relating to the conduct of the Business on or before
the Closing Date. Buyer agrees to hold at least one (1) copy of all Business Records that constitute all Business
Records of the Group Companies that exist as of the Closing and not to destroy or dispose of such copy for a period of seven (7) years from the Closing Date or such longer time as may be required by Law, and if thereafter Buyer
proposes to destroy or dispose of such copy, Buyer shall offer first in writing at least ninety (90) days prior to such proposed destruction or disposition to surrender such copy to Seller upon Seller’s request and at Seller’s expense.
(b) From and after the Closing, Buyer shall, and shall cause its Affiliates (including the Group Companies) to, (i) give Seller and its Representatives reasonable access to the Business Records of Buyer and its Affiliates, including the Group Companies, relating to the Business or operations of the Group
Companies on or before the Closing Date, (ii) furnish to Seller and its Representatives
such financial and operating data and other information relating to the Business or the operations of the Group
Companies on or before the Closing Date and (iii) use commercially reasonable efforts to cause the employees of Buyer and its Affiliates (including the Group Companies) to reasonably
cooperate during normal business hours with Seller and its Representatives, in each case, solely to the extent reasonably
requested by Seller in connection with accounting, Tax, or SEC reporting needs to the extent relating to the Business on or before the Closing Date. From and
after the Closing, the Retained Companies shall (A) give Buyer and its Representatives reasonable access to the
records of the Retained Companies to the extent relating to the Business on or before the Closing Date, (B) furnish to Buyer and its Representatives such financial and operating data
and other information to the extent relating to the Business on or before the Closing Date and (C) use commercially reasonable efforts to cause the employees of the Retained Companies to reasonably cooperate during
normal business hours with Buyer and its Representatives, in each case, solely to the extent reasonably
requested by Buyer in connection with accounting, Tax, or SEC reporting. Any such access shall be granted in a manner as not to interfere unreasonably with
the conduct of the business of the Party granting such access. Notwithstanding the foregoing, any Party may
withhold such access, as and to the extent necessary to avoid violation or waiver, to any document or information the disclosure of which could reasonably be expected to violate any Law or would result in the waiver of any legal privilege or work-product
privilege; provided that, to the extent practicable and in accordance with such Law, and in a manner that does not result in the waiver of any such
privilege, such Party shall make reasonable and appropriate substitute disclosure arrangements under circumstances in which these restrictions apply; provided, further, that nothing
in this Section 5.11(b) shall limit in any respect any rights any Party may have with respect to discovery or the production of documents or other information in connection with any litigation.
(c) Notwithstanding the foregoing, the provisions of Article VI shall govern with respect to Tax-related matters to the extent any provision in Article VI is in conflict with Section 5.11(a)
or Section 5.11(b).
Section 5.12 Confidentiality.
(a) Subject to Section 5.13, the Retained Companies shall not and shall instruct their Representatives
not to, directly or indirectly, from and after the Closing Date, without the prior written consent of Buyer, disclose to any third-party (other than each other and their respective Representatives) any confidential information to the extent relating to the Business; provided, that, the foregoing restriction shall not (i) apply to any
information (w) to the extent relating to the Retained Businesses, (x) generally available to, or known by, the public (other than as a result of disclosure
in violation of this Section 5.12(a)), (y) that was independently developed by any Retained Company (other than by the Business prior to the Closing)
without use of any confidential information with respect to the Business, or (z) that was made available to Seller by a third-party with the right to disclose such information, or (ii) prohibit any disclosure (x) required
by Law or any listing agreement with any national securities exchange, so long as, to the extent legally permissible, Seller provides Buyer with prior
notice of such disclosure, (y) necessary to be made in connection with the enforcement of any right or remedy relating to any of the Transaction
Documents or the transactions contemplated thereby or (z) to any financing source or underwriter of any of the Retained Companies in connection with such Person’s financial, accounting, Tax or similar due diligence of any of the Retained
Companies in connection with the refinancing of the Retained Companies’ credit facilities in connection with the transactions contemplated hereby.
(b) Buyer shall not, and shall cause its Subsidiaries (including, after the Closing, the Group Companies) not to, and shall instruct its Representatives not to, directly or indirectly, from and after the Closing Date, without the prior written consent of
Seller, disclose to any third-party (other than each other and their respective Representatives) any confidential information to the extent relating
to the Retained Businesses; provided that, the foregoing restriction shall not (i) apply to any information (w) to the extent relating to the
Business, (x) generally available to, or known by, the public (other than as a result of disclosure in violation of this Section 5.12(b)), (y) that was independently developed by Buyer or any of its Subsidiaries (other than the Group Companies) without use of any
confidential information with respect to the Retained Businesses, or (z) that was made available to Buyer by a
third-party with the right to disclose such information, or (ii) prohibit any disclosure, so long as, to the
extent legally permissible, Buyer provides Seller with prior notice of such disclosure, (A) required by Law or any listing agreement with any national
securities exchange, or (B) necessary to be made in connection with the enforcement of any right or remedy relating to any of the Transaction
Documents or the transactions contemplated thereby.
Section 5.13 Public
Announcements. . Seller and Buyer agree that no public release or announcement concerning the transactions contemplated hereby shall be issued or made by or on behalf of any Party without the prior consent of the other Party, except
that (i) Seller and its Subsidiaries may make announcements from time to time to their respective employees, customers, suppliers and other business relations
and (ii) each of Seller and Buyer may make announcements as is necessary to comply with applicable Law or the requirements of any listing agreement with any
national securities exchange (provided that any Party making such an announcement shall provide the other Party with a reasonable opportunity to review and provide comments to such announcement in
advance of the making such announcement, and such Party shall consider in good faith any reasonable comments made by the other party and, to the extent such Party, acting in good faith, agrees with any such comments, incorporate the same).
Notwithstanding the foregoing, Buyer and Seller shall cooperate to prepare a joint press release to be issued on or promptly after the date of this Agreement and a joint press release to be issued on the Closing Date. Seller and Buyer agree
to keep the terms of this Agreement confidential, except to the extent and to the Persons to whom disclosure is required by applicable Law or for purposes of compliance with SEC, financial or Tax reporting obligations; provided that, the Parties may disclose this Agreement or its terms (x) to their respective employees, accountants, advisors and other Representatives as necessary in connection with the
ordinary conduct of their respective businesses (so long as such Persons agree to, or are bound by contractual, professional or fiduciary obligations to, keep
the terms of this Agreement confidential and so long as each Party shall be responsible to the other Parties hereto for breach of this Section 5.13 or such confidentiality
obligations by the recipients of its disclosure) or (y) to any purchaser or prospective purchaser or financing source or underwriter of such Party (and such purchasers’, financing sources’ and underwriters’ respective legal counsel) in
connection with such Person’s due diligence of such Party, including any disclosure required under the Credit Facility. For the avoidance of doubt, nothing in this Agreement shall limit any right of Buyer or its Affiliates (including funds
and investment vehicles managed by such Affiliates) from disclosing the terms and provisions of this Agreement or making any such announcements related thereto on a confidential basis to their respective existing and prospective investors and
financing sources or in connection with fundraising activities.
Section 5.14 Director and Officer Matters.
(a) From and after the Closing until the sixth (6th) anniversary of the Closing Date, to the extent
required under any Organizational Document of any Group Company, Buyer agrees to cause such Group Company to unconditionally and forever, acquit, remise, release and discharge to the maximum extent provided by Law, all current and former
officers and directors of such Group Company (the “Indemnified Parties”), solely in their capacities as such, from any and all Actions and Liabilities of any character or nature whatsoever, and of every kind and description, choate and
inchoate, at Law or in equity, which Buyer, its Affiliates (including, after the Closing, the Group Companies), now has or ever had against any or all of such Persons, whether or not currently asserted or known, and whether absolute or
contingent, accrued or unaccrued, disputed or undisputed, liquidated or unliquidated, secured or unsecured, joint or several, due or to become due, vested or unvested, determined, determinable or otherwise, in each case, arising from or
relating to any event, dispute or occurrence in connection with their acts and omissions in their capacities as such during the period ending at the Closing, which arose on or prior to the date hereof, and Buyer agrees not to, and to cause its
Affiliates not to, bring any Action against such Indemnified Parties in respect of the foregoing.
(b) From and after the Closing until the sixth (6th) anniversary of the Closing Date, Buyer shall cause
the Group Companies to maintain in effect any and all exculpation, indemnification and advancement of expenses provisions of the Organizational Documents of the Group Companies, in each case in effect as of the Closing Date, for acts or
omissions of directors the Indemnified Parties occurring on or prior to the Closing.
(c) Prior to or on the Closing Date, the Group Companies may purchase a non-cancelable directors and officers tail insurance policy (a “Tail Policy”), for a period of six (6)
years after the Closing Date (i) to provide insurance coverage of not less than the existing coverage for events, acts or omissions occurring on or prior to the closing Date for all persons who were directors, managers or officers of any Group
Company on or prior to the Closing Date, and (ii) which policy shall contain terms and conditions no less favorable to the insured persons than the directors’, managers’ or officers’ liability coverage presently maintained by any Group Company;
provided, that the premiums thereof shall not exceed 300% of the annual premiums paid as of the date hereof by the Group Companies for directors’, managers’ and officers’ liability insurance.
(d) The covenants contained in this Section 5.14 are intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties and their respective heirs and
legal representatives and shall not be deemed exclusive of any other rights to which an Indemnified Party is entitled, whether pursuant to Law, Contract or otherwise. Buyer shall pay all expenses, including reasonable attorneys’ fees, that may
be incurred by any Indemnified Party in enforcing the indemnity and other obligations provided in this Section 5.14, except to the extent that it is ultimately determined by a Governmental Authority with valid jurisdiction that such
Indemnified Party is not entitled to be indemnified pursuant to this Agreement.
(e) In the event Buyer or any Group Company or any of its successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving
corporation or entity in such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any Person, then, and in either such case, Buyer shall use commercially reasonable efforts to ensure that proper
provision shall be made so that the successors and assigns of such Group Company shall assume all of the obligations set forth in this Section 5.14.
Section 5.15 Further Assurances. Seller
and Buyer agree that, from and after the Closing Date, each of them shall, and shall cause their respective Affiliates to, execute and deliver such further instruments of conveyance and transfer and take such other action as may reasonably be
requested by such Party to carry out the purposes and intents hereof.
Section 5.16 Contact with Employees, Customers and Suppliers.
Until the Closing Date, Buyer shall not, and shall cause its Representatives not to, contact or communicate with the employees (other than the executive officers and personnel of Seller and its Subsidiaries pursuant to Section 5.02, in
connection with any discussions initiated by Seller and its Representatives with respect to transition planning and the Continuing Employees pursuant to Section 7.01), customers, suppliers or licensors of Seller or any of its
Subsidiaries, or any other Persons having a material business relationship with Seller or any of its Subsidiaries, concerning the transactions contemplated hereby without the prior written consent of Seller.
Section 5.17 Cooperation with Financing.
(a) Seller shall use commercially reasonable efforts, to cooperate, and shall use commercially reasonable efforts to cause the Group Companies (and, solely with respect to the Business,
their other Subsidiaries) to cooperate, in each case, at Buyer’s sole expense, with Buyer and its Affiliates in connection with the arrangement and/or obtainment of the Debt Financing on the terms and conditions (including the flex provisions)
described in the Debt Commitment Letter as may be customary (including for transactions of this type) and reasonably requested by Buyer, including using commercially reasonable efforts to (i) cause the senior management of the Business to
participate at reasonable times in a reasonable number of meetings (including lender market meetings), drafting sessions, presentations, road shows, calls and rating agency and other due diligence sessions (including with ratings agencies, Debt
Financing Sources and/or prospective lenders), in each case, upon reasonable advance notice, (ii) furnish Buyer and the Debt Financing Sources with financial and other pertinent information regarding Seller, the Group Companies and the Business
as shall exist and be reasonably requested by Buyer (provided, that, for the avoidance of doubt, Seller shall not be required to provide, and Buyer shall be solely responsible for, (A) the preparation of any pro forma financial
information, including pro forma cost savings, synergies, capitalization or other pro forma adjustments desired to be incorporated into any pro forma financial information, (B) any description of all or any component of the Financing, including
any such description to be included in any liquidity or capital resources disclosure or any “description of notes,” or (C) projections, risk factors or other forward-looking statements relating to all or any component of the Financing), (iii)
assist Buyer and the Debt Financing Sources (including by providing reasonable information and materials with respect to the Group Companies and the Business) in the preparation of offering documents, private placement memoranda, bank
information memoranda, prospectuses, lender and investor presentations, rating agency presentations and similar documents or customary marketing material for the Debt Financing, including customary authorization letters (including customary
representations with respect to accuracy of information) authorizing the distribution of information to prospective lenders or investors, (iv) cooperate with the marketing efforts of Buyer and the Debt Financing Sources for the Debt Financing
as reasonably requested by Buyer, (v) cooperate with Buyer’s legal counsel in connection with any legal opinions that such legal counsel may be required to deliver in connection with the Debt Financing as reasonably requested by Buyer, (vi)
assist Buyer in obtaining surveys and title insurance as reasonably requested by Buyer, (vii) deliver, at least three (3) Business Days prior to the Closing Date, all documentation and other information regarding the Group Companies and the
Business as is reasonably requested in writing by Buyer (including on behalf of the Debt Financing Sources) at least ten (10) Business Days prior to the Closing Date and required to be delivered pursuant to applicable “beneficial ownership,”
“know-your-customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act and the Beneficial Ownership Regulation (31 C.F.R. § 1010.230), (viii) cause the Group Companies to facilitate the taking of all reasonable and
customary corporate action, limited liability company action or other organizational action, as applicable, subject to the occurrence of the Closing, necessary to permit and/or authorize the consummation of the Debt Financing, (ix) assist Buyer
with the (A) pledging and perfection of collateral, including delivery of all stock and other certificates representing equity interests in each of the Group Companies, as applicable, to the extent required in connection with the Debt
Financing, and (B) provision of guarantees, in each case, supporting the Debt Financing; provided, that no pledge or guarantee shall be effective until the Closing, (x) request any customary payoff letters, lien terminations and/or
other release documentation, as applicable, to be delivered pursuant to Section 2.04(c)(vii), (xi) furnishing due diligence information (including, subject to the receipt of customary non-reliance letters, reports prepared by third
parties) requested by the Debt Financing Sources and (xii) otherwise cooperate in Buyer’s efforts to obtain the Debt Financing (including assisting with the preparation of, and executing and/or delivering, as applicable, on or prior to the
Closing Date any definitive documentation for the Debt Financing (including, but not limited to, any credit agreements, guarantees, collateral agreements, hedging agreements, customary officer’s certificates, incumbencies, organizational
documents, solvency certificates and other customary closing certificates and corporate resolutions, as applicable) and any customary consents of accountants for use of their reports in any materials relating to the Debt Financing); provided,
in each case, that (A) none of Seller nor any of their Subsidiaries shall be required to incur any Liability (including the payment of any fees) in connection with the Financing prior to the Closing Date, (B) the pre-Closing Board of Directors
or similar governing body of Seller and the directors and managers, as applicable, of Seller or any of their Subsidiaries shall not be required to adopt resolutions approving the agreements, documents and instruments pursuant to which the
Financing is obtained, in each case, that would be effective prior to the Closing, (C) none of Seller nor any of their Subsidiaries shall be required to execute prior to the Closing Date any definitive financing documents, including any credit
or other agreements, pledge or security documents, or other certificates, legal opinions or documents in connection with the Financing, in each case, that would be effective prior to the Closing, (D) except as expressly provided above, none of
Seller nor any of their Subsidiaries shall be required to take any corporate actions that would be effective prior to the Closing Date to permit the consummation of the Financing, (E) none of Seller nor any of their Subsidiaries shall be
required to take any action that would reasonably be expected to conflict with, or result in a violation or breach of, or default (with or without notice or lapse of time) under any Seller’s or any of its Subsidiaries’ organizational and
governing documents, any applicable Law or any material Contract to which such Seller or any of its Subsidiaries is a party and (F) none of Seller nor any of their Subsidiaries shall be required to provide any assistance or cooperation that
would (1) unreasonably interfere with its business operations, (2) cause any representation or warranty in this Agreement made by Seller to be breached, or (3) cause any conditions to Closing set forth in Article VIII to fail to be
satisfied. None of Seller nor any of their Subsidiaries shall have any liability to Buyer in respect of any financial statements, other financial information, or data or other information provided pursuant to this Section 5.17, except
to the extent any such liability arises out of or results from (x) the gross negligence or willful misconduct of Seller or any of its Subsidiaries, as determined by a final, non-appealable judgment of a court of competent jurisdiction.
Notwithstanding anything in this Agreement to the contrary, (i) Buyer acknowledges and agrees that the obligations of Buyer pursuant to this Agreement are not subject to any conditions regarding the ability of Buyer or any Affiliate thereof to
obtain any financing for the consummation of the transactions contemplated by this Agreement and (ii) the availability or the unavailability of any Debt Financing for any reason whatsoever, including without limitation due to a breach or
failure to fund by any lender to Buyer or any of its Affiliates, is not, and shall not be, deemed a condition precedent to the consummations of the transactions contemplated hereunder. It is understood and agreed by the parties that the
conditions set forth in Section 8.02(a) as applied to the obligations under this Section 5.17 shall be deemed to be satisfied unless the Debt Financing contemplated by the Debt Commitment Letter has not been obtained as a direct
result of the Seller's willful and material breach of its obligation under this Section 5.17. To the extent Buyer reasonably believes Seller has committed a willful and material breach of this Section 5.17, Buyer shall provide
Seller reasonably prompt written notice thereof and Seller shall have three (3) Business Days (or such longer period as may be agreed to by Buyer in its reasonable discretion) to cure or otherwise address such breach in a manner reasonably
satisfactory to Buyer prior to any termination pursuant to Article IX.
(b) Seller and its Subsidiaries hereby consent to the use of their logos in connection with the Debt Financing prior to the Closing Date; provided that such logos are used
solely in a manner that is not intended or reasonably likely to (i) harm or disparage Seller or its Subsidiaries or their reputation, goodwill or marks, (ii) otherwise materially adversely affect Seller or any of its Subsidiaries or (iii) in
any manner, violate any contractual obligations of Seller or any of its Subsidiaries existing as of the date hereof.
(c) Notwithstanding any other provision set forth herein or in the Confidentiality Agreement, Seller agrees that Buyer and its Affiliates may share any confidential information with
respect to Seller, its Subsidiaries, the Group Companies and the Business with any Debt Financing Source, potential lender and/or ratings agencies in connection with the Debt Financing; provided that Buyer and its Affiliates shall
instruct such recipients to keep such information confidential.
Section 5.18 Financing.
(a) Buyer shall use its commercially reasonable efforts to take, or cause to be taken, all actions and do, or
cause to be done, as promptly as possible, all things necessary, proper or advisable (in its reasonable judgment) to arrange and obtain the Financing on the terms and conditions described in (or more favorable than) the Commitment Letters,
including using its commercially reasonable efforts to, as promptly as possible, (i) maintain in effect the Debt Commitment Letter until the consummation of the Closing (provided that, the Debt Commitment Letter may be amended,
restated, amended and restated, supplemented, modified and/or replaced from time to time (x) as contemplated by the Debt Commitment Letter as of the date hereof and (y) to the extent not prohibited below), (ii) satisfy, or cause to be
satisfied, on a timely basis, or obtain a waiver of, all conditions to Buyer obtaining the Debt Financing set forth in the Debt Commitment Letter (including the payment of any fees required as a condition to the Debt Financing) that are
applicable to Buyer and within its control, (iii) negotiate and enter into definitive agreements with respect to the Debt Financing on the terms and conditions contemplated by the Debt Commitment Letter (including any related flex provisions)
or on such other customary terms, (iv) upon the satisfaction (or waiver) of the conditions set forth in the applicable Commitment Letters and all conditions herein (including, for the avoidance of doubt, the conditions set forth in Sections
8.01 and 8.02) to Buyer’s obligation to effect the Closing and (v) enforce its rights under the Debt Commitment Letter (in each case, other than those that can only be satisfied at the Closing), consummate the Financing at or
prior to Closing. Buyer shall give Seller reasonably prompt written notice (A) of any breach or default (or any event or circumstance that, with or without notice, lapse of time or both, would reasonably be expected to result in a breach or
default) by any party to any Commitment Letter of which Buyer becomes aware which, in any case, would reasonably be expected to delay, prevent or make less likely the availability of the Financing on the Closing Date, (B) if and when Buyer
becomes aware that any portion of the Financing contemplated by any Commitment Letter that is necessary for the Financing Purposes may not be available on the Closing Date, (C) of the receipt by Buyer of any written notice or other written
communication from a Debt Financing Source or the Guarantors with respect to any (1) actual or potential material breach, default, termination or repudiation by any party to any Commitment Letter or (2) material dispute or disagreement
between or among any parties to any Commitment Letter that would reasonably be expected to prevent the Financing or delay the Financing on the Closing Date and (D) of any expiration or termination of any Commitment Letter (in each case, other
than the termination of any Commitment Letter upon the consummation of the Closing); provided that, in no event will Buyer be under any obligation to disclose any information pursuant to the foregoing clauses (A), (B), (C) and (D)
that is subject to attorney-client or similar privilege. As soon as reasonably practicable, Buyer shall provide any information available to Buyer and reasonably requested by Seller in writing relating to any circumstance referred to in
clause (A), (B), (C) or (D) of the immediately preceding sentence; provided that, in no event will Buyer be under any obligation to disclose any information that is subject to attorney-client or similar privilege. Without limiting the
foregoing, upon the reasonable written request of Seller, Buyer shall keep Seller informed on a reasonably current basis and in reasonable detail of the status of its efforts to arrange the Financing and provide to Seller executed copies of
any material amendments, modifications or replacements of the Commitment Letters, including in connection with the Alternative Financing (as described below) (provided that any fees, pricing, interest rates, original issue discount, “flex”
terms and other economic or commercially sensitive numbers and provisions set forth in any fee letters, engagement letters or other agreements that (x) in accordance with customary practice, are confidential by their terms or (y) are
customarily redacted (including in connection with transactions of this type), and that do not add any conditions to the Financing or reduce the total amount of the Financing to an amount that, when taken together with the amount of all other
sources then available to be funded on the Closing Date, would be less than the amount necessary to fund the Financing Purposes, may be redacted so as not to disclose such terms) and, solely to the extent such written notices or
communications are not subject to attorney-client or similar privilege, copies of any of the written notices or communications described in the sentence immediately preceding the sentence immediately preceding this sentence. If any portion of
the Financing becomes, or would reasonably be expected to become, unavailable (whether through expiration, termination or otherwise) on the terms and conditions contemplated in the applicable Commitment Letter (after taking into account flex
terms) and such portion is reasonably required to satisfy all of Buyer’s obligations in respect of the Financing Purposes, Buyer shall use its commercially reasonable efforts to arrange and obtain alternative financing, including from
alternative sources, on terms that in the aggregate are not materially less favorable to Buyer (including with respect to any conditions to the Financing) than the Financing contemplated by the applicable Commitment Letter (in each case, as
determined by Buyer in good faith) and in an amount that is sufficient to replace any unavailable portion of the Financing that is necessary to fund the Financing Purposes (“Alternative Financing”) as promptly as practicable following
the occurrence of such event, and the provisions of this Section 5.18 shall be applicable to the Alternative Financing, and for purposes of this Agreement all references to the Financing shall be deemed to include such
Alternative Financing and all references to the applicable Commitment Letter shall include the commitment letter (or similar agreement) for the Alternative Financing; provided that, nothing in this Section 5.18 shall: (i)
require Buyer or its Affiliates to take, or cause to be taken, any action that would cause any representation, warranty, covenant or agreement in this Agreement or any ancillary document to be breached in a manner that would result in the
conditions set forth in Section 8.03(a) or 8.03(b), as applicable, not being satisfied or capable of being satisfied (unless such condition is waived by Seller) or (ii) require, and in no event shall the commercially
reasonable efforts of Buyer be deemed or construed to require, Buyer (or any of its Affiliates) (A) to pay any fees (including original issue discount) or expenses or agree to pricing in excess (in the aggregate) of those contemplated by the
Debt Commitment Letter, in each case, as in effect on the date of this Agreement or as may have been amended, modified or replaced in accordance with the terms of this Agreement, other than a de minimis increase (in the reasonable judgment of
Buyer) to such fees, expenses and/or pricing in the aggregate, (B) to agree to conditionality or terms of the Debt Financing that are less favorable or more onerous (in the reasonable judgment of Buyer) in the aggregate, than those set forth
in the Debt Commitment Letter (including the “flex” provisions), in each case, as in effect on the date of this Agreement, (C) to provide access to or disclose any information to Seller or its Representatives to the extent such access or
disclosure would violate the attorney-client privilege, attorney work product protections or similar protections or (D) to seek Equity Financing from any source other than those counterparty to, and on the terms set forth in, the Equity
Commitment Letter as in effect on the date of this Agreement. Buyer shall (1) comply with each Commitment Letter and (2) not permit, without the prior written consent of Seller (such consent not to be unreasonably withheld, delayed or
conditioned), any material amendment or modification to be made to, or any termination (other than in connection with the consummation of the Closing), rescission or withdrawal of, or any material waiver of any provision or remedy under, any
Commitment Letter if any such amendment, modification or waiver (individually or in the aggregate with any other amendments, modifications or waivers) would reasonably be expected to (x) reduce the aggregate amount of the Financing thereunder
to be funded at Closing to an amount that, when taken together with all other sources then available to be funded on the Closing Date, would be less than the amount necessary to fund the Financing Purposes, or (y) impose any new or additional
condition, or otherwise materially amend, modify or expand any condition, to the receipt of any portion of the Financing that is necessary to fund the Financing Purposes in a manner that would reasonably be expected to (I) delay or prevent
the Closing Date, (II) make the funding of any portion of the Financing necessary to fund the Financing Purposes (or satisfaction of any condition to obtaining any portion of the Financing necessary to fund the Financing Purposes) less likely
to occur or (III) materially and adversely impact (a) the ability of Buyer to enforce its rights against any other party to any Commitment Letter, (b) the ability of Buyer to consummate the transactions contemplated hereby or (c) the
likelihood of the consummation of the transactions contemplated hereby; provided that, no consent of Seller shall be required (w) to add lenders, lead arrangers, bookrunners, syndication agents or similar creditworthy entities that
have not executed the Debt Commitment Letter as of the date hereof or to replace any lenders, lead arrangers, bookrunners, syndication agents or similar creditworthy entities that have executed the Debt Commitment Letter and to assign or
reassign or reallocate commitments or roles to such additional or replacement lenders, lead arrangers, bookrunners, syndication agents or similar entities in accordance with the terms of the Debt Commitment Letter (as in effect on the date
hereof) and to grant customary rights (including customary approval rights) in connection therewith, and to make technical or ministerial changes related thereto, (x) to amend the Debt Commitment Letter to implement any “flex” provisions
applicable thereto, (y) to increase the aggregate amount of the Debt Financing or (z) for any replacement of the Debt Financing contemplated above. Buyer shall provide notice to Seller promptly upon receiving the Financing. Notwithstanding
anything to the contrary in this Agreement, compliance by Buyer with this Section 5.18 shall not relieve Buyer of its obligation to consummate the transactions contemplated by this Agreement, whether or not the Financing or
Alternative Financing is available.
(b) Buyer shall indemnify, defend and hold harmless Seller and its Subsidiaries, and their respective
pre-Closing directors, officers, employees and representatives (collectively, the “Indemnitees”), from and against any and all Damages incurred, directly or indirectly, in connection with the Financing or any information provided in
connection therewith; provided that, notwithstanding the foregoing, such indemnity shall not, as to any Indemnitee, be available to the extent that such Damages resulted from (w) the gross negligence or willful misconduct of such
Indemnitee, as determined by a final non-appealable judgment of a court of competent jurisdiction, (x) a material breach of any obligations under this Agreement by such Indemnitee, as determined by a final non-appealable judgment of a court
of competent jurisdiction or (y) any dispute solely among Indemnitees. Buyer shall promptly, upon written request by Seller, reimburse Seller and its Subsidiaries for all reasonable and documented out-of-pocket costs (including reasonable and
documented attorneys’ fees and ratings agencies’ fees) incurred by Seller or their Subsidiaries in connection with the cooperation described in Section 5.17 or otherwise in connection with the Financing.
Section 5.19 Restrictive Covenants.
(a) For a period of three (3) years following the Closing Date (the “Restricted Period”), Seller shall not, and Seller shall cause its direct and indirect Subsidiaries not to,
directly or indirectly, (i) engage in, or own any interest in, acquire, manage or control any Person that is in any manner engaged in, the Business anywhere in the Restricted Territory or (ii) develop, create, deliver, engage in, provide,
market, license, execute or sell any live event services or experiential marketing services, or any other services conducted by the Business as of the date hereof, to any Person in the Restricted Territory; provided, that nothing herein
shall prohibit Seller from being a passive owner of not more than 2% of the outstanding stock of any class of a corporation which is publicly traded; provided, further, that nothing in this Section 5.19 shall be deemed
to limit or restrict any business activities of the Retained Business that are conducted by the Retained Business as of the date hereof and as of the Closing.
(b) During the Restricted Period, Seller shall not, and Seller shall cause its direct and indirect Subsidiaries not to, directly or indirectly, (i) solicit or attempt to solicit for
employment, or induce or attempt to induce to leave the employ of Buyer or the Group Companies or their respective Affiliates or (ii) hire or attempt to hire, any Business Employee; provided, however, that (x) general
solicitations to the public or general advertising not directly targeted at such employee shall not constitute a breach of Section 5.19(b)(i) and (y) Section 5.19(b)(ii) shall not restrict Seller or any of its direct or indirect
Subsidiaries from hiring or attempting to hire any individual whose employment was terminated at least six (6) months prior to such time.
(c) During the Restricted Period, Buyer shall not, and shall cause its direct and indirect Subsidiaries not to, directly or indirectly, (i) solicit or attempt to solicit for employment,
or induce or attempt to induce to leave the employ of the Retained Companies or (ii) hire or attempt to hire, any individual set forth on Section 5.19(c) of the Disclosure Schedule that was, within the six (6) months prior thereto was,
an employee of the Retained Companies; provided, however, that (x) general solicitations to the public or general advertising not directly targeted at such employee shall not constitute a breach of Section 5.19(c)(i) and
(y) Section 5.19(c)(ii) shall not restrict Buyer or any of its direct or indirect Subsidiaries from hiring or attempting to hire any individual whose employment was terminated at least six (6) months prior to such time.
(d) From and after the Closing, Seller shall not, and shall cause its Subsidiaries and direct its Representatives not to, directly or indirectly, make, publish, or communicate, or cause
to be made, published or communicated, any statement or communication, whether written or oral, in any form or medium, that disparages, is defamatory against or is otherwise materially harmful to the reputation, business, or operations of the
Group Companies or their respective Representatives. Notwithstanding the foregoing, nothing in this Agreement shall prohibit truthful testimony under oath in connection with a legal proceeding before an arbitrator or a court of competent
jurisdiction.
(e) Seller and Buyer each acknowledge and agree that the time, scope, and other provisions of this Section 5.19 have been specifically negotiated by sophisticated, commercial
parties and specifically hereby agree that such time, scope and other provisions are reasonable under the circumstances for the purpose of protecting the value of the Business and the Group Companies, including goodwill. Seller and Buyer
acknowledge and agree that if, at any time, despite the express agreement set forth in this Section 5.19, a court holds that any portion of this Section 5.19 is unenforceable because any of the restrictions therein are
unreasonable, or for any other reason, such decision shall not affect the validity or enforceability of any of the other provisions of this Agreement, and the maximum restrictions of time or scope reasonable under the circumstances, as
determined by such court, will be substituted for any such restrictions which are held unenforceable. If following the Closing, Seller sells, transfers or otherwise disposes all or substantially all of its assets to any Person, then proper
provisions shall be made so that such transferee shall agree to be subject to all of the obligations set forth in this Section 5.19, which obligations may be enforced by Buyer and its Subsidiaries.
Section 5.20 Third-Party Consents. Prior to the Closing, Seller
and Buyer shall use their respective commercially reasonable efforts to make any required notices and obtain third-party consents required by the Contracts set forth in Section 5.20 of the Disclosure Schedule as a result of the
execution and delivery of this Agreement or the consummation of the transactions contemplated hereby, and by the other Transaction Documents. Notwithstanding the foregoing, neither Seller nor any of its Affiliates shall be required to make any
payments to such third parties, provide any accommodation (financial or otherwise) or incur any Liability or commence any litigation in order to obtain any such consent.
Section 5.21 Transitional Trademark License. As of the Closing,
except as expressly set forth in this Section 5.21, the Group Companies shall have no right, title, interest, license or any other right whatsoever in the Retained Marks, and neither Buyer nor any of the Group Companies have, pursuant
to the Transaction Documents, obtained any such right, title, interest, license or other right in the Retained Marks. As promptly as practicable after Closing, but in no event later than six (6) months following the Closing, Buyer shall, and
shall cause the Group Companies to, cease and discontinue any use of the Retained Marks and, at Buyer’s sole cost and expense, remove all Retained Marks from all marketing and promotional materials, invoices, business cards, schedules,
displays, signs, stationery, packing materials and other supplies and similar materials, that were previously created and included in the inventory of the Group Companies and that incorporate the Retained Marks. During such period, Buyer and
the Group Companies shall have the right to continue to use such materials solely in the manner such materials and solely to the extent such Retained Marks were used in the operation of the Business prior to the Closing, and solely for purposes
of transitioning the operation of the Business from the control of Seller to the control of Buyer. In connection with any use of the Retained Marks during such period, Buyer and the Group Companies agree to maintain the quality and goodwill of
the Retained Marks. The parties hereto acknowledge and agree that the Retained Marks, together with any goodwill associated therewith, are solely owned by the Retained Companies. Notwithstanding the foregoing, nothing herein shall (a) require
Buyer or the Group Companies to remove or cease use of any Retained Marks with respect to any materials or use that are viewed, consumed, and used solely internally, provided that Buyer and the Group Companies use commercially reasonable
efforts to remove and cease use of the Retained Marks with respect to such materials and use in the ordinary course of business, or (b) prevent Buyer or the Group Companies from describing the current and historical Business and its
relationship with Seller.
Section 5.22 Cash Balances. Seller shall, and shall cause its
Subsidiaries to, use commercially reasonable efforts to cause the amount of Cash and Cash Equivalents of the Group Companies as of the Closing to not exceed the amount set forth in Section 5.22 of the Disclosure Schedule; provided
that the incurrence of any Taxes (by withholding or otherwise) arising from compliance with this section shall not be deemed to be commercially unreasonable.
ARTICLE VI
Tax Matters
Section 6.01 Tax Returns; Allocation of Taxes.
(a) Tax Returns.
(i) To the extent required or permitted by Law, the Parties shall (A) elect to close any
taxable year of any Group Company for U.S. state and local Tax purposes as of the end of the day on the Closing Date and (B) elect pursuant to Treasury Regulation Section 1.245A-5(e)(3)(i) to close the taxable year of each Non-US Company that
is a “controlled foreign corporation” (within the meaning of Section 957 of the Code), and the Parties and their Affiliates shall cooperate as necessary to effect any such elections and to provide each other with any information in respect
thereof, including by (1) Seller delivering to Buyer a copy of the statement attached to Seller’s U.S. federal income tax return for the taxable year that includes the Closing Date making any such elections and (2) Buyer delivering to
Seller proof of payment for any Taxes for any Pre-Closing Tax Period that are paid by any Non-US Company after the Closing Date.
(ii) The Parties shall treat, and shall cause their Affiliates to treat, any deduction
from taxable income of the Group Companies arising in connection with the transactions contemplated hereby, to the extent economically borne by Seller, as arising in Pre-Closing Tax Periods for purposes of this Agreement and for all Income
Tax purposes, including for purposes of Treasury Regulation Section 1.1502-76(b)(1)(ii)(B), in each case, to the extent permitted under applicable law using a “more-likely-than-not” or higher level of confidence.
(iii) Seller shall prepare or cause to be prepared (x) all Tax Returns related to the
Business and the Group Companies which are due on or prior to the Closing and (y) all Combined Tax Returns. Such Tax Returns under clause (x) shall be prepared in a manner consistent with past practice of the Group Companies unless a
different treatment is otherwise required by applicable Law.
(b) Except as shall arise from the Pre-Closing Transfers (which shall be borne and timely paid by Seller),
all excise, sales, use, value added, registration stamp, recording, documentary, conveyancing, property, transfer, and similar Taxes, levies, charges and fees arising from the transactions
contemplated by the Transaction Documents (collectively, the “Transfer Taxes”) shall be borne and timely paid fifty percent (50%) by Buyer
and fifty percent (50%) by Seller, and each party shall promptly reimburse the other party for its share of any Transfer Taxes to the extent paid by the other party. In addition, except for any Tax Returns
that are required to be filed with respect to Transfer Taxes arising from the Pre-Closing Transfers (which shall be prepared and timely filed by Seller), Buyer shall prepare and timely file, or cause to be prepared and timely filed all Tax
Returns that are required to be filed with respect to such Transfer Taxes (and Seller shall fully cooperate with such filings) with costs of such filings borne by the parties in the same proportion as indicated in the preceding sentence. For
purposes of this Agreement, Seller shall be treated as having paid its fifty percent (50%) share of any Transfer Taxes to the extent such Transfer Taxes are taken into account in Unpaid Transaction Expenses, as finally determined pursuant to
Section 2.05(c).
(c) For purposes of determining Pre-Closing Tax Liability and Closing Date Net Working Capital, in the case
of any Straddle Tax Period, (i) real, personal and intangible property Taxes and any other similar Taxes levied
on a per diem basis of any Person for a Pre-Closing Tax Period shall be equal to the amount of such Taxes for
the entire Straddle Tax Period multiplied by a fraction, the numerator of which is the number of days during the Straddle Tax Period that are in the Pre-Closing
Tax Period and the denominator of which is the total number of days in the Straddle Tax Period and (ii) any other Taxes of
any Person for any Pre-Closing Tax Period (including income described in Section 951(a) or 951A(a) of the Code) shall be computed as if such Tax
period ended at the end of the relevant Pre-Closing Tax Period (and for such purpose, the taxable period of any controlled foreign corporation, partnership or other
pass-through entity in which any Group Company holds a beneficial interest shall be deemed to terminate at such time), provided that exemptions, allowances or deductions that are calculated on an annual basis (including depreciation and
amortization deductions), other than with respect to property placed in service after the Closing, shall be allocated on a per diem basis. All determinations necessary to give effect to the allocation set forth in the previous sentence shall
be made in a manner consistent with the prior practice of Seller or its Subsidiaries, as applicable; provided, that with respect to any income
described in Section 951(a) or 951A(a) of the Code, the Parties acknowledge and agree that an election will be made pursuant to Treasury Regulation Section 1.245A-5(e)(3)(i) to close the taxable year of each Non-US Company that is a
“controlled foreign corporation” (within the meaning of Section 957 of the Code).
(d) Section 336(e) Election.
(i) Seller and Buyer shall make, or cause to be made, a joint election for any US Company that is classified as a
corporation for U.S. federal income tax purposes under Section 336(e) of the Code and under any applicable similar provisions of state law with respect to the purchase of the US Company Interests (all such elections being referred to
collectively as a “Section 336(e) Election”) and at the Closing, Seller and Buyer shall execute three (3) copies of IRS Form 8883 (making appropriate adjustments to report the results of the Section 336(e) Election) or any successor form
and any similar state forms. Buyer and Seller shall cooperate fully in making the Section 336(e) Election, including filing and executing such additional forms, returns, elections, schedules and other documents required to effect and preserve
timely elections in accordance with Treasury Regulation Section 1.336-2(h) (or any comparable provisions of state, local or non-U.S. Tax law), including all “Section 336(e) election statements” and “written, binding agreements” (each as
described in the Treasury Regulations under Section 336(e) of the Code or any comparable provisions of state, local or non-U.S. Tax law) or any successor provisions; provided, however, that Buyer may provide Seller with written
notice no later than ten (10) days prior to the Closing Date that it is electing for Seller and Buyer to make, or cause to be made, a joint election for any US Company that is classified as a corporation for U.S. federal income tax purposes
under Section 338(h)(10) of the Code and under any applicable similar provisions of state law with respect to the purchase of the US Company Interests (all such elections being referred to collectively as an “Alternative Section 338(h)(10)
Election”) in lieu of the Section 336(e) Election, in which case, the provisions of this Section 6.01(d) shall apply to the Alternative Section 338(h)(10) Election mutatis mutandis.
(ii) Within ninety (90) days following the final determination of the Purchase Price pursuant to Section 2.05(c),
Seller shall prepare (in accordance with, as applicable, Section 338(h)(10) or Section 336(e) of the Code and the Treasury Regulations thereunder and the principles set forth on Schedule 6.01(d)(ii)) and deliver to Buyer a schedule
allocating, to the extent applicable, the “aggregate deemed asset disposition price,” as defined in Treasury Regulation Section 1.336-3 or the “aggregate deemed sale price” as defined in Treasury Regulations Section 1.338-4, among the assets of
the US Companies (the “Allocation Schedule”). Unless Buyer objects in writing to the Allocation Schedule within thirty (30) days after delivery of such Allocation Schedule, the Allocation Schedule shall be deemed to be accepted and
agreed to by Buyer. If the Buyer objects to the Allocation Schedule in writing within thirty (30) days after delivery of such Allocation Schedule, the Parties will attempt in good faith to resolve their disagreements. If Buyer and Seller are
unable to resolve any such disagreement within thirty (30) days after Buyer receives notice of objection from Seller, the Parties shall retain the Accountant to resolve any such disagreements; provided that
the Accountant shall utilize the principles set forth on Schedule 6.01(d)(ii) and that the fees and expenses of the Accountant will be borne by the Parties in the same proportion as set forth in Section 2.05(c) hereof mutatis mutandis. The determination of the Accountant shall be final and binding on all Parties (Allocation Schedule agreed to by the Parties or finally determined by the Accountant, the “Final
Allocation Schedule”). The Final Allocation Schedule shall be revised to take into account any adjustments to the total consideration paid hereunder, including adjustments pursuant to Section 2.05(d), Section 2.06, Section
7.09 and this Article VI, by taking into account the characteristics of, and events giving rise to the adjustment, in each case, pursuant to provisions of this Section 6.01(d)(ii). The Parties agree that, for applicable Tax
purposes, Buyer shall not be treated as receiving any payment from any Group Company or Sellers as a result of its assumption of any deferred revenue or similar liability in connection with the transactions contemplated by this Agreement.
Buyer, Seller and their respective Affiliates shall file all Tax Returns in a manner consistent with the Final Allocation Schedule, unless otherwise required by a “determination” within the meaning of a Section 1313 of the Code (or analogous
provision of state, local, or non-U.S. law).
Section 6.02 Cooperation on Tax Matters. Buyer and Seller shall use commercially reasonable efforts to cooperate fully, and Buyer shall use commercially reasonable efforts to cause each of its Subsidiaries, including the Group Companies, to cooperate fully,
as and to the extent reasonably requested by the applicable other Party and at such applicable Party’s sole cost and expense, in connection with the preparation, execution and filing of Tax Returns and any audit, examination, inquiry,
assessment, claim for refund, lawsuit, action, claim, arbitration, mediation or other proceeding at law or in equity by or before a Taxing Authority with respect to Taxes relating to the Group Companies (each a “Tax Claim”). Such
cooperation shall include access to records and information which are reasonably relevant to any such Tax Return or Tax Claim, making personnel available on a mutually convenient basis to provide additional information and explanation of any
material provided hereunder, executing Tax Returns and executing powers of attorney. Buyer shall cause its Affiliates, including the Group Companies, to (i) abide by all record retention agreements entered into with any Taxing Authority that
have been made available to Buyer and (ii) to give the Seller thirty (30) days written notice prior to transferring, destroying or discarding any books and records with respect to Tax matters pertinent to the Business and the Group Companies
relating to any taxable period beginning before the Closing Date. If Seller so requests, Buyer shall, and Buyer shall cause its Affiliates, including the Group Companies, to, allow Seller, at Seller’s sole cost and expense, to take possession
of such books and records prior to transferring, destroying or discarding them. Notwithstanding anything to the contrary in this Agreement, Seller shall not be required to transfer to Buyer any Tax Returns or other Tax work papers of or
including any of the Retained Companies (including with respect to Combined Taxes or Combined Tax Returns) to the extent not constituting Business Records; provided that Seller shall use commercially reasonable efforts to redact any such Tax
work papers used to prepare both Combined Tax Returns and standalone Tax Returns in a manner to cause them to constitute “Business Records” for this purpose.
Section 6.03 Buyer
Covenants. The determination of Closing Date Net Working Capital
shall not take into account the effect of any of following actions that Buyer or its Affiliates (including, after the Closing, the Group Companies) take after Closing: (a) any action on the Closing Date other than in the ordinary course of
business, except as otherwise contemplated by this Agreement or other Transaction Documents, (b) making, outside the ordinary course of business of the Group Companies (except as otherwise
contemplated herein), or changing any Tax election, deemed Tax election or Tax accounting method that would be effective for any Pre-Closing Tax Period, (c) amending or re-filing any Tax Return of or including any Group Company for any
Pre-Closing Tax Period, (d) extending or waiving, or causing to be extended or waived, or permitting the Group Companies to extend or waive, any statute of limitations or other period for the assessment of any Tax or deficiency related to a
Pre-Closing Tax Period or (e) engaging in any voluntary disclosure or similar process or initiating communications with any Tax authority with respect to Taxes attributable to a Pre-Closing Tax Period or Straddle Tax Period. Buyer shall not
make an election under Section 338(g) of the Code (or any corresponding provision of state, local or non-U.S. Tax Law) with respect to the acquisition of the Non-US Company Interests without the prior written consent of Seller, which consent
may be granted or withheld by Seller in its sole discretion.
Section 6.04 Tax Sharing
Agreements. Any and all existing Tax sharing, Tax allocation or Tax indemnity agreements, except for the Transaction Documents, between
any Group Company, on the one hand, and any Retained Company, on the other hand, shall be terminated as of the Closing Date to the extent they relate to the Group Companies. Seller shall use commercially reasonable efforts to terminate
(effective as of Closing) the Group Companies’ membership in any combined, consolidated, unitary, or similar tax groups that include any Group Companies, on the one hand, and any Retained Companies, on the other hand (and, to the extent not
terminated by Closing, the Parties shall use commercially reasonable efforts to cooperate to give effect to any such terminations as soon as permissible under any applicable Law).
Section 6.05 Tax Claims. Buyer shall promptly notify Seller upon its receipt of notice
of any Tax Claim with respect to Combined Taxes or a Combined Tax Return. All Tax Claims with respect to Combined Taxes or a Combined Tax Return shall be controlled by Seller i (at its sole cost and expense); provided that, (i) to the
extent any such Tax Claim could reasonably result in adverse tax consequences that are not de minimis to any of the Group Companies or the Buyer or any of its Affiliates, Seller shall keep Buyer
reasonably informed with respect to, and shall allow Buyer to reasonably participate in, the conduct of such Tax Claims (but solely to the extent such conduct relates to the Group Companies) and (ii) Seller shall be solely liable for any
liability resulting from any such Tax Claim.
Section 6.06 Consolidated Group. Following the Closing, Seller shall indemnify, defend and hold harmless the Group Companies
and the Buyer and any of its Affiliates from and against any Combined Taxes (other than any Taxes payable by any of the Group Companies under Pillar Two to the extent already taken into account the final determination of the Purchase Price).
Section 6.07 Post-Closing Payments. The parties agree that any (i) payment of any amounts in accordance with Section
2.05 or Section 7.09, (ii) payment of Deferred Purchase Price pursuant to Section 2.06 or (iii) payment made pursuant to this Article VI shall be treated as an adjustment to the Purchase Price (and allocated
between US Holdco, GES Canada, GES UK (and each EMEA Company that is a direct Subsidiary of GES UK), and Viad UK based on the relative values attributed to each under Section 2.03(b), other than with respect to adjustments under
clause (ii), which shall only be treated as an adjustment to the portion of the Purchase Price attributable to US Holdco) and to treat such adjustments consistently therewith for U.S. federal income and other applicable Tax purposes, to the
extent permitted by applicable Law.
Section 6.08 Refunds. Buyer acknowledges and agrees that any
refund (whether received by way of payment in cash, credit, offset or reduction in Tax Liability received in lieu of receipt of a refund, and, in each case, to the extent not already taken into account the final determination of the Purchase
Price) of Purchase Price Adjustment Income Taxes or Combined Taxes (and interest thereon paid by the Governmental Authority) of or attributable to the Group Companies is intended for or should belong to the Retained Businesses pursuant to Section
5.05(b). Buyer shall pay any such refunds received to Seller pursuant to Section 5.05(b), net of any costs and expenses (including Taxes) payable by Buyer or any of its Affiliates as a result of obtaining or receiving such refund;
provided that to the extent any such refunds are later disallowed or revoked by any Governmental Authority, Seller shall promptly pay back to Buyer the amount of any such refund together with any applicable interest and penalties imposed by any
Governmental Authority.
ARTICLE VII
Employee Matters
Section 7.01 Transfers of Employment; Employee Communications and
Consultations. Prior to the Closing, Seller shall, or shall cause its Affiliates to: (i) transfer the employment of each Transferred Business Employee to a Group Company, and (ii) transfer the employment of each Transferred Retained
Business Employee to Seller or one of its Affiliates (other than the Group Companies). Seller shall assume, retain and indemnify Buyer for all Liabilities with respect to the Transferred Retained Business Employees. From and after the date
hereof until the Closing Date, Buyer and Seller shall cooperate in good faith regarding any written communications to be distributed to any Business Employees relating to the transactions contemplated by this Agreement or post-Closing terms of
employment and Buyer shall consult with Seller and obtain Seller’s consent before distributing any communications to any Business Employees, which consent
will not be unreasonably withheld, conditioned or delayed. In addition, Buyer will reasonably cooperate and provide such information as Seller may reasonably request from time to time in connection
with any information and consultations processes relating to the transactions contemplated by this Agreement with any Business Employees or any works council, union or other labor representative. Prior to the Closing, Seller and its Affiliates
shall comply with their respective obligations to notify and consult with the relevant employee representative bodies or any labor tribunal with respect to the transactions contemplated by this Agreement under applicable Law and any Collective
Bargaining Agreement or other Contract with an employee representative body. Seller and its Affiliates shall inform, negotiate and/or consult with, or obtain the formal advice of, any such employee representative bodies or labor tribunals as
may be required or reasonably necessary to consummate the transactions contemplated by this Agreement, and Buyer shall reasonably cooperate with respect to the foregoing.
Section 7.02 Continuation of Benefits. With respect to each
Continuing Employee, following the Closing until the one (1) year anniversary of the Closing Date or such longer period required by applicable Law, Buyer shall, and shall cause its Affiliates to (and shall cause any other Person providing
compensation and benefits on their behalf to) provide to such Continuing Employee: (a) a base salary or regular hourly wage, as applicable, that is not less than the base salary or regular hourly wage, as applicable, provided to such Continuing
Employee immediately prior to the Closing; (b) a target cash incentive opportunity that is not less than the target cash incentive opportunity provided to such Continuing Employee immediately prior to the Closing (excluding any
transaction-based opportunity); (c) health, welfare, retirement, and other benefits (excluding any nonqualified deferred compensation plans, defined benefit plans and retiree medical or welfare plans or arrangements (together, the “Excluded
Benefits”)) that are substantially comparable to those provided to such Continuing Employee immediately prior to the Closing; and (d) severance payments and benefits to each Continuing Employee whose employment is involuntarily terminated
during such period in accordance the plans, programs and agreements set forth on with Section 7.02 of the Disclosure Schedule. Notwithstanding the foregoing, the terms and conditions of employment for any Business Employee covered by a
Collective Bargaining Agreement shall continue to be governed by the applicable Collective Bargaining Agreement until its expiration, modification or termination.
Section 7.03 2024 Incentive Program. If the Closing Date occurs
prior to the payment of amounts under the 2024 incentive compensation programs (including any amounts that are paid with respect to a quarterly, rather than an annual, period) set forth in Section 7.03 of the Disclosure Schedule (a “2024
Incentive Program”), Buyer shall cause each Continuing Employee to be paid such employee’s 2024 incentive compensation amount pursuant to the terms and conditions set forth in the applicable 2024 Incentive Program.
Section 7.04 Service Credit. With respect to each Continuing
Employee, effective from and after the Closing, Buyer shall, and shall cause its Affiliates to, (a) recognize, for all purposes (other than for any purpose under the Excluded Benefits) under plans, programs and arrangements established or
maintained by Buyer or its Affiliates for the benefit of such Continuing Employees, service with Seller and its Subsidiaries prior to the Closing to the extent such service was recognized under the corresponding Benefit Plan covering such
Continuing Employee, including for purposes of eligibility, vesting and benefit levels and accruals, in each case, except where it would result in a duplication of benefits, (b) waive any pre-existing condition exclusion, actively-at-work
requirement or waiting period under all employee health and other welfare benefit plans established or maintained by Buyer or its Affiliates for the benefit of the Continuing Employees, except to the extent such pre-existing condition,
exclusion, requirement or waiting period would have applied to such individual under the corresponding Benefit Plan covering such Continuing Employee and (c) provide full credit for any co-payments, deductibles or similar payments made or
incurred by a Continuing Employees under a Benefit Plan that is a group health plan under a corresponding benefit plan maintained by Buyer or its Affiliates that is a group health plan covering such Continuing Employee prior to the Closing for
the plan year in which the Closing occurs.
Section 7.05 401(k) Plan. Prior to the Closing, a Group Company
shall adopt a tax qualified defined contribution 401(k) plan sponsored by a Group Company that will accept a transfer of assets and liabilities from the tax qualified defined contribution 401(k) plan sponsored by Seller, including participant
promissory notes and vested and unvested account balances of the Continuing Employees (“Group Company 401(k) Plan”).
Section 7.06 Seller Benefit Plans. Seller and its Affiliates
(other than the Group Companies) shall as of the Closing Date retain the sponsorship of, and be solely responsible for all Liabilities and obligations relating to or at any time arising under, pursuant to or in connection with any Seller
Benefit Plan (including any claims incurred but not yet reported under any Seller Benefit Plan that is a self-funded group health or welfare plan) or any other benefit or compensation plan, program, policy, agreement, contract or arrangement of
any kind at any time maintained, sponsored, or contributed to or required to be contributed to by Seller or any of its Affiliates (including the Group Companies) or under or with respect to which Seller or any of its Affiliates (including the
Group Companies) has any current or contingent Liability or obligation (including, for the avoidance of doubt, any non-Group Company multiemployer plans (within the meaning of Section 4001(a)(3) or 3(37) of ERISA)), but excluding any Group
Company Plan, any Multiemployer Plan and any Group Company 401(k) Plan. Without limiting the generality of the foregoing, Seller and its Affiliates (other than the Group Companies) shall be solely responsible for all Liabilities and obligations
relating to any Seller incentive equity awards that vest or are settled or exercised following the Closing Date (including the employer portion of any employment, payroll, or similar Taxes associated therewith).
Section 7.07 Health and Welfare Benefit Plans. Prior to and
effective as of January 1, 2025, a Group Company shall adopt health and welfare benefit plans (“Group Company Welfare Plans”) that are substantially identical to those health and welfare benefit plans covering the Continuing Employees
located in the United States set forth in Section 3.16(a) of the Disclosure Schedule. Such Group Company Welfare Plans shall provide coverage to the Continuing Employees in accordance with the requirements of this Article VII
(as such plans may be amended or terminated from time to time by a Group Company following January 1, 2025).
Section 7.08 Third-Party Rights. The provisions contained in
this Agreement with respect to any Business Employee are included for the sole benefit of the Parties and shall not create any right in any other Person, including any Service Provider (or dependent or beneficiary of any of the foregoing).
Nothing herein (a) shall be deemed an amendment to or creation of any plan providing benefits to any Business Employee (including any Benefit Plan), (b) shall obligate Buyer to adopt or maintain any particular compensatory or benefits
arrangement, plan or program at any time or prevent Buyer from modifying or terminating any such arrangement, plan or program at any time or (c) shall be deemed to prohibit or restrict Buyer or any of its Subsidiaries from terminating the
employment of any Continuing Employee following the Closing.
Section 7.09 Treatment of Certain Bonus Amounts. Within sixty
(60) days following the date that is six (6) months following the Closing Date, Buyer shall reimburse, or cause to be reimbursed, Seller for any amounts that constitute Indebtedness or Unpaid Transaction Expenses that do not become payable
pursuant to a Transaction Incentive Bonus Agreement due to the employee’s termination of employment for cause or voluntary resignation from employment with Buyer and its Affiliates prior to the payment of such amounts.
ARTICLE VIII
Conditions to Closing
Section 8.01 Conditions to the Obligations of Buyer and Seller. The obligations of Buyer and Seller to consummate, or cause to be consummated, the transactions contemplated by this Agreement are subject to the
satisfaction of the following conditions, any one or more of which may be waived in writing by the Parties:
(a) All waiting periods under the HSR Act relating to the
transactions contemplated hereby shall have expired or been terminated and all waivers, consents, clearances, approvals and authorizations under the Regulatory Laws set forth in Section 8.01(a)
of the Disclosure Schedule with respect to the transactions contemplated by this Agreement shall have been obtained (or, as applicable, the waiting periods with respect thereto shall have expired or been terminated) and shall remain in full
force and effect; and
(b) no Law enacted, entered, promulgated, enforced or issued by any Governmental Authority in a jurisdiction where Seller or Buyer has material assets or material business operations shall be in effect restraining,
enjoining or prohibiting the consummation of the transactions contemplated by this Agreement.
Section 8.02 Conditions to the Obligations of Buyer. The obligations of
Buyer to consummate, or cause to be consummated, the transactions contemplated by this Agreement are also subject to the satisfaction of the following conditions, any one or more of which may be waived in writing by Buyer:
(a) Seller shall have performed in all material respects all covenants and obligations hereunder required to be performed by it at or prior to the Closing;
(b) (i) the Fundamental Representations shall be true and correct in all material respects at and as of the Closing as if made at and as of the
Closing (other than such representations and warranties that by their terms address matters only as of an earlier specified date, which shall be true and correct only as of such date) and (ii) the representations and warranties of Seller
contained in Article III of this Agreement (other than the Fundamental Representations), without giving effect to materiality or Material Adverse Effect qualifications (other than the portions of any of the representations and
warranties contained in Article III requiring the listing of matters based on materiality or similar qualifications), shall be true and correct at and as of the Closing as if made at and as of the Closing (other than such
representations and warranties that by their terms address matters only as of an earlier specified date, which shall be true and correct only as of such date), except where the failure of such representations and warranties described in this
clause (ii) to be so true and correct would not reasonably be expected to, individually or in the aggregate, have a Seller Material Adverse Effect;
(c) no event that has or would reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect shall have occurred since the date of this Agreement;
(d) Seller shall have delivered to Buyer a certificate signed by an officer of Seller, dated as of the Closing Date, certifying that, to the knowledge and belief of such officer, the conditions specified in Section
8.02(a), Section 8.02(b) and Section 8.02(c) have been satisfied; and
(e) Seller shall have completed the Pre-Closing Transfers in accordance with this Agreement.
Section 8.03 Conditions to the Obligations of Seller. The obligations of
Seller to consummate, or cause to be consummated, the transactions contemplated by this Agreement are also subject to the satisfaction of the following conditions, any one or more of which may be waived in writing by Seller:
(a) Buyer shall have performed in all material respects all of its material obligations hereunder required to be performed by it at or prior to the Closing;
(b) the representations and warranties of Buyer contained in Article IV of this Agreement, without giving effect to materiality or
similar qualifications, shall be true and correct at and as of the Closing as if made at and as of the Closing (other than such representations and warranties that by their terms address matters only as of an earlier specified date, which shall
be true and correct only as of such date), except where the failure of such representations and warranties to be so true and correct would not reasonably be expected to, individually or in the aggregate, interfere with, prevent or delay the
ability of Buyer to enter into and perform its obligations under the Transaction Documents to which it is a party or consummate the transactions contemplated thereby; and
(c) Buyer shall have delivered to Seller a certificate signed
by an officer of Buyer, dated as of the Closing Date, certifying that, to the knowledge and belief of such officer, the conditions specified in Section
8.03(a) and Section 8.03(b) have been fulfilled.
Section 8.04 Frustration of Conditions. Neither Buyer nor Seller
may rely on the failure of any condition set forth in Section 8.02 or Section 8.03 to be satisfied if such failure was caused by the failure of Buyer, on the one hand, or Seller, on the other hand, respectively, to (a) use
commercially reasonable efforts to consummate transactions contemplated hereby and (b) otherwise comply with their obligations under this Agreement.
ARTICLE IX
Termination
Section 9.01 Termination. This Agreement may be terminated and the transactions contemplated hereby abandoned at any time prior to the
Closing:
(a) by mutual written agreement of Seller and Buyer;
(b) by written notice from either Party to the other Party, if any Governmental Authority of competent jurisdiction where Seller or Buyer has material assets or material business operations has issued a final, non-appealable order, judgment, decree, ruling or injunction or taken any other Action permanently restraining, enjoining or otherwise prohibiting the transactions contemplated by this Agreement; provided
that, this right of termination shall not be available to any Party whose failure to comply with its obligations under this Agreement has been the primary
cause of, or has primarily resulted in, such order, decree, ruling, injunction or other Action;
(c) by written notice from Buyer to Seller, if there is a
breach of any representation or warranty set forth in Article III hereof or any covenant or agreement to
be complied with or performed by Seller pursuant to the terms of this Agreement, in each case, that would cause
the failure of a condition set forth in Section 8.02 to be satisfied at the Closing; provided that, in each case under this clause (c), Buyer may not terminate this Agreement unless (i) Buyer has given written
notice of such material breach to Seller and Seller has not cured such material breach by the earlier of thirty (30) days
after receipt of such notice and the Outside Date or (ii) such breach is not capable of being cured; provided, further, that Buyer is not
in material breach of any of its representations, warranties, covenants or agreements contained in this Agreement such that any of the conditions of Section 8.03 would not be
satisfied;
(d) by written notice from Seller to Buyer, if there is a breach of any representation or warranty set forth in Article IV hereof or any covenant or agreement to be complied with or performed by Buyer pursuant to the terms of
this Agreement, in each case, that would cause the failure of a condition set forth in Section 8.03 to be satisfied at the Closing; provided that, in each case under this clause (d), Seller may not terminate this Agreement unless (i) Seller has given written notice of such material breach to Buyer and Buyer
has not cured such material breach by the earlier of thirty (30) days after receipt of such notice and the Outside Date or (ii) such breach is not capable of being
cured; provided, further, that Seller is not in material breach of any of its representations, warranties, covenants or agreements contained
in this Agreement such that any of the conditions of Section 8.02 would not be satisfied;
(e) by written notice from either Buyer to Seller or Seller to Buyer, if any of the conditions set forth in Sections 8.01, 8.02 and 8.03 of this Agreement, as applicable, have not been satisfied or waived on or before April 30, 2025 (the “Outside Date”); provided that this right of termination shall not be available to any Party whose failure to comply with its obligations under this Agreement has been the primary cause of, or has primarily resulted
in, the failure of the conditions provided in Sections 8.01, 8.02 and 8.03, as applicable, to be satisfied before such date; or
(f) by written notice from Seller to Buyer, if (i) all of the conditions set forth in Section 8.01
and Section 8.02 (other than those conditions that by their nature are to be satisfied at the Closing) have been satisfied or waived, (ii) Seller has irrevocably confirmed in writing that (A) all of the conditions set forth in Section
8.03 have been satisfied, or, to the extent permitted by applicable Law, waived by Seller, other than conditions with respect to actions the Parties are required to take at the Closing itself as provided in this Agreement and (B) Seller
and the Group Companies are prepared to consummate the transactions contemplated by this Agreement and (iii) Buyer fails to consummate the Closing within two (2) Business Days following the date the Closing should have occurred pursuant to Section
2.04(a).
Section 9.02 Effect of Termination. Except as otherwise set forth in this Section 9.02 or Section 9.03, in the event of the
valid termination of this Agreement pursuant to Section 9.01, this Agreement shall forthwith become void and have no effect, and there shall be no further obligations on the part of either Party, without any Liability on the part of
any Party or its Affiliates, Representatives or stockholders, other than Liability of Seller or Buyer, as the case may be, for any intentional and willful breach of this Agreement or Fraud occurring prior to such termination. The provisions
of Section 5.13, Section 5.18(b) this Section 9.02, Section 9.03, Article X and the Confidentiality Agreement shall survive any termination of this Agreement.
Section 9.03 Termination Fee.
(a) In the event that Seller validly terminates this Agreement pursuant to Section 9.01(d) or Section
9.01(f), and at the time of, or prior to, such termination Seller would have been entitled to terminate this Agreement pursuant to Section 9.01(d) or Section 9.01(f), Buyer shall promptly and in any event within ten (10)
Business Days of such termination, pay Seller a non-refundable termination fee, without offset or reduction of any kind, in an amount of $25,000,000 (the “Termination Fee”). Any Termination Fee payable pursuant to this Section
9.03(a) shall be paid by wire transfer of immediately available funds to one or more accounts specified by Seller in writing to Buyer. In no event shall Buyer be required to pay the Termination Fee on more than one occasion.
(b) Notwithstanding anything to the contrary in this Agreement, in the event that the Termination Fee is paid
pursuant to Section 9.03(a), Buyer shall not have any liability of any nature whatsoever to Seller with respect to any breach of this Agreement, the Commitment Letters or the Guaranty (and the termination hereof) or the failure of the
Closing to occur, other than the liability of Buyer to pay (i) the Termination Fee in accordance with Section 9.03(a) and (ii) any amounts payable under Section 5.18(b), and such payments shall be the sole and exclusive remedy
under this Agreement as liquidated damages for any and all losses or damages of any nature suffered or incurred by Seller or the Group Companies or any of their Affiliate in connection with this Agreement, the Commitment Letters, the
Guaranty, the other Transaction Documents, or the transactions contemplated hereby or thereby; provided, however, that if Buyer fails to pay the Termination Fee when due, (A) Buyer shall additionally pay to Seller interest on
the amount of the Termination Fee from the date such payment was required to be made until the date of payment at the rate of ten percent (10%) per annum and (B) if, in order to obtain such payment, Seller commences an Action that results in
a judgment against Buyer, Buyer shall reimburse Seller for its costs and expenses (including reasonable attorneys’ fees and expenses) incurred in connection with such Action. Seller and Buyer acknowledge and agree that the Termination Fee is
not a penalty, but rather is liquidated damages in a reasonable amount that will compensate Seller in the circumstances in which the 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 contemplated by this Agreement, which amount would otherwise be uncertain and incapable of accurate determination.
(c) From and after payment to Seller of the Termination Fee, (i) neither Buyer, nor the Equity Financing
sources nor any of Buyer’s Affiliates or Representatives nor the parties to the Commitment Letters, the parties to the Guaranty, the Debt Financing Source Related Party nor any of their respective Affiliates or any of their respective former,
current or future general or limited partners, equityholders, managers, members, directors, officers, agents or other Representatives shall have any liability to Seller, the Group Companies, or any of their respective Affiliates (or any other
Person) relating to or arising out of this Agreement or the other Transaction Documents under any theory of law or equity or in respect of any representations, warranties or other agreements made or alleged to be made in connection herewith
or therewith, through Buyer or otherwise, whether by or through attempted piercing of the corporate veil, by or through a claim by or on behalf of Buyer against any of its Affiliates or Representatives, or the Equity Financing sources, by the
enforcement of any assessment or by any legal or equitable proceeding, by virtue of any statute, regulation or other applicable Law, or otherwise, and (ii) none of Seller, the Group Companies nor any Affiliate of the foregoing, nor any other
Person (other than Buyer) shall be entitled to bring or maintain any Action against Buyer, any of its Affiliates or Representatives, or the Equity Financing sources arising out of this Agreement, the other Transaction Documents or any of the
transactions contemplated hereby or thereby or any matters forming the basis for such termination. Under no circumstances shall the Group Companies or Seller be permitted or entitled to receive both a grant of specific performance resulting
in the Closing and payment of the Termination Fee.
(d) Buyer and Seller acknowledge and agree that the agreements contained in Section 9.02 and Section
9.03 are an integral part of the transactions contemplated by this Agreement, and that, without these agreements, neither Buyer nor Seller would enter into this Agreement.
ARTICLE X
Miscellaneous
Section 10.01 No Survival. None of the
representations, warranties, covenants or agreements set forth herein (or in any certificate delivered pursuant hereto) shall survive the Closing, other than each covenant and agreement set forth in this Agreement that by its terms is to be
performed following the Closing, which shall survive the Closing until fully performed. No Party or any of its respective Affiliates shall have any Liability with respect to any representation, warranty, covenant or agreement from and after the
time that such representation, warranty, covenant or agreement ceases to survive hereunder. Notwithstanding anything to the contrary herein, nothing in this Agreement shall limit, impair or prohibit Buyer’s or Seller’s right to make a claim in
the case of Fraud.
Section 10.02 Notices. All notices and other communications between
the Parties shall be in writing and shall be deemed to have been duly given (a) when delivered in person, (b) when delivered by FedEx or other nationally recognized overnight delivery service; or (c) when delivered by email (without receiving
an automated “bounceback” or similar reply declaring the email undeliverable) if sent before 6:00 p.m. on a Business Day and if sent after 6:00 p.m. on a Business Day or on a day that is not a Business Day, on the next Business Day, addressed
as follows:
if to Buyer, to:
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TL Voltron Purchaser, LLC
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c/o Truelink Capital Management, LLC
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10877 Wilshire Boulevard, Suite 660
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Los Angeles, California 90024
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Attn:
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***
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Email:
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***
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with a copy (which shall not constitute notice) to:
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Kirkland & Ellis LLP
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555 California St., 27th Floor
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San Francisco, California, 94104
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Attention:
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Sean Z. Kramer, P.C.
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Jared D. Maher
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Email:
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sean.kramer@kirkland.com
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jared.maher@kirkland.com
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if to Seller, to:
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Viad Corp
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7000 East 1st Avenue
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Scottsdale, Arizona, 85251
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Attention:
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***
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Email:
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***
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with a copy (which shall not constitute notice) to:
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Latham & Watkins LLP
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330 North Wabash Ave, Suite 2800
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Chicago, Illinois 60611
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Attention:
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Bradley C. Faris
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Jason Morelli
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Sean M. Parish
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Email:
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Bradley.Faris@lw.com
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Jason.Morelli@lw.com
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Sean.Parish@lw.com
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or to such other address or addresses as a Party may from time to time designate in writing.
Section 10.03 Waiver. No waiver by any Party of any default,
misrepresentation or breach of warranty or covenant hereunder, whether intentional or not, shall be deemed to extend to any prior or subsequent default, misrepresentation or breach or affect in any way any rights arising by virtue of any prior
or subsequent occurrence. No waiver by any Party of any of the provisions hereof shall be effective unless explicitly set forth in writing and executed by the Party sought to be charged with such waiver.
Section 10.04 Expenses. Except as otherwise provided in this Agreement, each Party shall bear its
own expenses incurred in connection with this Agreement and the transactions contemplated hereby, whether or not such transactions shall be consummated, including all fees of its legal counsel, financial advisers and accountants; provided,
however, that the fees and expenses of the Accountant, if any, shall be paid in accordance with Section 2.05; provided, further, that Buyer shall pay all fees payable in connection with the R&W Insurance
Policy, notwithstanding the requirement that Seller bear a portion of such fees as an “Unpaid Transaction Expense” hereunder.
Section 10.05 Assignment. No Party shall assign this Agreement or any part hereof without the prior written consent of the other Party; provided,
that, without the consent of Seller, (a) Buyer or, after the Closing, any Group Company may assign its rights under this Agreement to any Affiliate of such Person or any purchaser of all or substantially all of the assets or equity interests
of such Person, provided, that such assignee agrees to be bound by this Agreement, and (b) Buyer may assign its interests in this Agreement to any Debt Financing Sources or any Affiliate of Buyer for collateral security purposes
(including, for the avoidance of doubt, in connection with the Debt Commitment Letter and the documentation related to the Debt Financing); provided, further, that no assignment pursuant to the foregoing clauses (a) or (b)
shall relieve Buyer of any obligation or liability hereunder.
Section 10.06 Governing Law. This Agreement, and all issues and questions
concerning the construction, validity, interpretation and enforceability of this Agreement and the exhibits and schedules hereto, and all claims and disputes arising hereunder or in connection herewith, whether purporting to sound in contract
or tort, or at law or in equity, shall be governed by, and construed in accordance with, the Laws of the State of Delaware, including its statutes of limitation, without giving effect to any choice of Law or conflict of Law rules or
provisions (whether of the State of Delaware or any other jurisdiction) that would cause the application of the Laws of any jurisdiction other than the State of Delaware.
Section 10.07 Jurisdiction; Venue; Waiver of Jury Trial.
(a) The Parties hereby agree and consent to be subject to the exclusive jurisdiction of the Court of
Chancery of the State of Delaware or, to the extent such court declines jurisdiction, first to any federal court, or second, to any state court, each located in Wilmington, Delaware, and hereby waive the right to assert the lack of personal
or subject matter jurisdiction or improper venue in connection with any such suit, action or other proceeding. In furtherance of the foregoing, each of the parties hereto (a) waives the defense of inconvenient forum, (b) agrees not to
commence any suit, action or other proceeding arising out of this Agreement or any transactions contemplated hereby other than in any such court and (c) agrees that a final judgment in any such suit, action or other proceeding shall be
conclusive and may be enforced in other jurisdictions by suit or judgment or in any other manner provided by Law.
(b) EACH PARTY HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY ACTION BASED UPON, ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY (I) CERTIFIES THAT NO REPRESENTATIVE OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH PARTY WOULD NOT, IN THE EVENT OF ANY SUCH ACTION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (II) ACKNOWLEDGES THAT IT AND EACH OTHER PARTY HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT, BY, AMONG OTHER THINGS, THE MUTUAL WAIVER AND CERTIFICATIONS IN THIS SECTION 10.07(b).
(C) NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, EACH OF THE PARTIES TO THIS AGREEMENT HEREBY
AGREES THAT IT WILL NOT BRING OR SUPPORT ANY ACTION, CAUSE OF ACTION, CLAIM, CROSS-CLAIM OR THIRD PARTY CLAIM OF ANY KIND OR DESCRIPTION, WHETHER AT LAW OR IN EQUITY, WHETHER IN CONTRACT OR IN TORT OR OTHERWISE, AGAINST THE DEBT FINANCING
SOURCE RELATED PARTY IN ANY WAY RELATING TO THIS AGREEMENT OR ANY OF THE TRANSACTIONS, INCLUDING ANY DISPUTE ARISING OUT OF OR RELATING IN ANY WAY TO THE DEBT COMMITMENT LETTERS, DEBT FINANCING, OR THE PERFORMANCE THEREOF, IN ANY FORUM OTHER
THAN THE STATE OR FEDERAL COURTS OF NEW YORK LOCATED IN NEW YORK COUNTY, STATE OF NEW YORK, AND THAT THE PROVISIONS OF SECTION 10.07(B) RELATING TO THE WAIVER OF JURY TRIAL SHALL APPLY TO ANY SUCH ACTION, CAUSE OF ACTION, CLAIM,
CROSS-CLAIM OR THIRD PARTY CLAIM. THE PARTIES HEREBY AGREE THAT MAILING OF PROCESS OR OTHER PAPERS IN CONNECTION WITH ANY SUCH ACTION OR PROCEEDING IN THE MANNER PROVIDED IN SECTION 10.02, OR IN SUCH OTHER MANNER AS MAY BE PERMITTED
BY LAW, SHALL BE VALID AND SUFFICIENT SERVICE THEREOF AND HEREBY WAIVE ANY OBJECTIONS TO SERVICE ACCOMPLISHED IN THE MANNER HEREIN PROVIDED.
Section 10.08 Captions; Counterparts. The captions in this Agreement are for convenience only and shall not be considered a part of or affect
the construction or interpretation of any provision of this Agreement. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same
instrument. This Agreement and any amendments hereto, to the extent signed and delivered by means of electronic transmission in portable document format (“.pdf”), shall be treated in all manner and respects as an original agreement or
instrument and shall be considered to have the same binding legal effect as if it were the original signed version thereof delivered in person. No party hereto shall raise the use of electronic transmission in .pdf to deliver a signature or
the fact that any signature or agreement was transmitted or communicated through the use electronic transmission in pdf as a defense to the formation or enforceability of a contract and each such party forever waives any such defense.
Section 10.09 Rights of Third-Parties. Nothing expressed or implied in this
Agreement is intended or shall be construed to confer upon or give any Person, other than the entities expressly named as parties hereto, any right or remedies under or by reason of this Agreement; provided, however, that,
notwithstanding the foregoing Prior Business Counsel, the Indemnified Parties and the Designated Persons shall be intended third-party beneficiaries of, and may enforce, Section 5.14 and Section 10.15.
Section 10.10 Entire Agreement. The Transaction Documents and the
Confidentiality Agreement constitute the entire agreement between the Parties relating to the transactions contemplated hereby and supersede any other agreements, whether written or oral, that may have been made or entered into by any of the
Parties or any of their respective Affiliates or Representatives relating to the transactions contemplated hereby. No representations, warranties, covenants, understandings or agreements, oral or otherwise, relating to the transactions
contemplated by the Transaction Documents exist between the Parties except, in each case, as expressly set forth in the Transaction Documents and the Confidentiality Agreement.
Section 10.11 Amendments. This Agreement may be amended or modified in whole or in part, only by a duly authorized agreement in writing
executed in the same manner (but not necessarily by the same individuals) as this Agreement and which makes reference to this Agreement; provided, that no amendment or waiver to Section 9.03, Section 10.05, Section 10.07,
Section 10.10, this Section 10.11, Section 10.14 and/or Section 10.17 (or any defined term used therein (or to any other provision or definition of this Agreement to the extent that such amendment or waiver
would modify the substance of any such foregoing Section or defined term used therein)) that is materially adverse to any Debt Financing Source shall be effective as to such Debt Financing Source without the prior written consent of such Debt
Financing Source.
Section 10.12 Severability. If any provision of this Agreement is held invalid or unenforceable by any court of competent jurisdiction, the
other provisions of this Agreement shall remain in full force and effect. The Parties further agree that if any provision contained herein is, to any extent, held invalid or unenforceable in any respect under the Laws governing this
Agreement, they shall take any actions necessary to render the remaining provisions of this Agreement valid and enforceable to the fullest extent permitted by Law and, to the extent necessary, shall amend or otherwise modify this Agreement to
replace any provision contained herein that is held invalid or unenforceable with a valid and enforceable provision giving effect to the intent of the Parties.
Section 10.13 Disclosure
Schedule. The Parties acknowledge and agree that (a) the inclusion of any item, information or other matter in the Disclosure Schedule
that is not required by this Agreement to be so included is solely for the convenience of Buyer, (b) the disclosure by Seller of any item, information or other matter in the Disclosure Schedule shall not be deemed to constitute an
acknowledgement by Seller that such item, information or other matter is required to be disclosed by the terms of this Agreement or that such item, information or other matter is material, (c) if any section of the Disclosure Schedule lists
an item or information in such a way as to make its relevance to the disclosure required by or provided in another section of the Disclosure Schedule or the statements contained in any Section of Article III reasonably apparent on its
face, such item or information shall be deemed to have been disclosed in or with respect to such other section, notwithstanding the omission of an appropriate cross-reference to such other section or the omission of a reference in the
particular representation and warranty to such section of the Disclosure Schedule, (d) except as provided in clause (c) above, headings have been inserted in the Disclosure Schedule for convenience of reference only, (e) the Disclosure
Schedule is qualified in its entirety by reference to specific provisions of this Agreement and (f) the Disclosure Schedule and the information and statements contained therein are not intended to broaden or constitute, and shall not be
construed as broadening or constituting, representations, warranties or covenants of Seller except as and to the extent provided in this Agreement.
Section 10.14 Enforcement.
(a) The Parties agree that irreparable damage would occur, and that the Parties would not have an adequate
remedy at Law, in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached. It is accordingly agreed that, except as otherwise provided in this Section
10.14, the Parties shall be entitled to an injunction or injunctions to prevent breaches or anticipated breaches of this Agreement and to specifically enforce the terms and provisions of this Agreement, without proof of actual damages
or otherwise, in addition to any other remedy to which any Party is entitled at Law or in equity. Each Party agrees to waive any requirement for the securing or posting of any bond in connection with such remedy. The Parties further agree not
to assert that a remedy of specific enforcement is unenforceable, invalid, contrary to law or inequitable for any reason, on the basis that a remedy of monetary damages would provide an adequate remedy.
(b) The remedies available to Seller pursuant to this Section 10.14 shall be in addition to any
other remedy to which it is entitled at law or in equity, and the election to pursue an injunction or specific performance shall not restrict, impair or otherwise limit Seller from, in the alternative, seeking to terminate this Agreement and
collect the Termination Fee under Section 9.03. For the avoidance of doubt, although Seller may pursue both a grant of specific performance to the extent permitted by this Section 10.14 and the payment of the Termination Fee,
under no circumstances shall Seller be permitted or entitled to receive both a grant of specific performance to require Buyer to consummate the Closing and payment of the Termination Fee.
(c) In furtherance of the foregoing, the Parties hereby further acknowledge and agree that prior to the
Closing, Seller shall be entitled to specific performance (i) to enforce specifically the terms and provisions of, and to prevent or cure breaches of, this Agreement (including Section 5.18) by Buyer and (ii) to cause Buyer to draw
down the full proceeds of the Financing and to cause Buyer to consummate the transactions contemplated hereby, including to effect the Closing in accordance with the terms and subject to the conditions in this Agreement, if, solely in the
case of this clause (ii), (A) all conditions in Section 8.01 and Section 8.02 (other than those conditions that by their nature are to be satisfied at the Closing) have been satisfied or waived, (B) Buyer fails to complete the
Closing by the date the Closing is required to have occurred pursuant to Section 2.04, (C) the Debt Financing (or, if applicable, the Alternative Financing) has been funded or will be funded at the Closing if the Equity Financing is
funded at the Closing and (D) Seller has irrevocably confirmed that if specific performance is granted and the Equity Financing and Debt Financing (or, if applicable, the Alternative Financing) are funded, then the Closing will occur.
Section 10.15 Privileged Matters; Conflicts of Interest.
(a) The Parties agree that their respective rights and
obligations to maintain, preserve, assert or waive any attorney-client and work product privileges belonging to the other Parties with respect to the Business
and the Retained Businesses (collectively, “Privileges”) shall be governed by the provisions of this Section
10.15(a). With respect to matters relating to the Retained Businesses, and with respect to all Business Records, documents, communications or
other information (collectively, “Information”) of any of the Retained Companies prepared in connection with
this Agreement or the transactions contemplated hereby, Seller shall have sole authority to determine whether to assert or waive
any Privileges, including the right to assert any Privilege against Buyer and its Subsidiaries. Buyer shall not, and shall cause its Subsidiaries (including, after the Closing, the Group Companies) not to, take any action without the prior
written consent of Seller that would reasonably be expected to result in any waiver of any such Privileges of
Seller. After the Closing, Buyer shall have sole authority to determine whether to assert or waive any Privileges
with respect to matters relating to the Business (except for Information prepared in connection with this Agreement, the other Transaction Documents or the transactions contemplated hereby and thereby). However, Buyer may not assert any
such Privileges of Buyer related to pre-Closing advice or communications
relating to the Business against the Retained Companies. Seller shall not, and shall cause its Subsidiaries not
to, take any action after the Closing without the prior written consent of Buyer that would reasonably be expected to result in any waiver of any such Privileges of Buyer. The rights and obligations created by this Section
10.15 shall apply to all Information as to which the Retained Companies or the Group Companies would be entitled to assert or has asserted a Privilege without regard to the effect, if any, of the transactions
contemplated hereby (the “Privileged Information”). Upon receipt by the Retained Companies, or Buyer or its Subsidiaries
(including, after the Closing, the Group Companies), as the case may be, of any
subpoena, discovery or other request from any third-party that actually or arguably calls for the production or
disclosure of Privileged Information of the other or if the Retained Companies or Buyer or its Subsidiaries (including, after the Closing, the Group Companies), as the case may be, obtains knowledge that any current or former employee of the Retained Companies or the Group Companies has received any subpoena, discovery or other request from any third-party that actually or arguably calls for the production or disclosure of Privileged Information of the other Party,
such Party shall promptly notify the other of the existence of the request and shall provide the other a reasonable opportunity to review the Information and
to assert any rights it may have under this Section 10.15 or otherwise to prevent the production or disclosure of Privileged Information. Seller’s transfer of any Business Records or other Information to Buyer in
accordance with this Agreement and Seller’s agreement to permit Buyer to obtain Information existing prior to the Closing are made in reliance on the Parties’ respective agreements, as set forth in Section 5.12 and this Section 10.15, to maintain the confidentiality of such Information and to take the steps provided herein for
the preservation of all Privileges that may belong to or be asserted by Seller or Buyer, as the case may be. The
access to Business Records and other Information being granted pursuant to Sections 5.02 and 5.11
and Article VI, the agreement to provide witnesses and individuals pursuant to Section 5.10 and the disclosure to Buyer and Seller of Privileged Information relating to the Business or the Retained
Businesses pursuant to this Agreement in connection with the transactions contemplated hereby shall not be asserted by Seller or Buyer to constitute, or otherwise be deemed, a waiver of any Privilege that has been or may be
asserted under this Section 10.15 or otherwise.
(b) Conflicts of Interest. Buyer hereby waives and
agrees not to assert, and after the Closing, Buyer shall cause the Group Companies to waive and not assert, any
conflict of interest arising out of or relating to the representation, after the Closing, of any of the Retained Companies, or any of their respective officers, employees or directors (any such person, a “Designated
Person”) in any matter involving this Agreement or any of the other Transaction Documents or transactions
contemplated hereby or thereby, by Latham & Watkins LLP or any other legal counsel (“Prior Business Counsel”) currently or previously
representing any Designated Person in connection with this Agreement or any of the other Transaction Documents or transactions contemplated hereby or thereby. Without limiting the foregoing, Buyer and Seller agree that,
following the Closing, Prior Business Counsel may serve as counsel to any Designated Person in connection with any matters related to this
Agreement and the transactions contemplated hereby, including any litigation, claim or obligation arising out of or
relating to this Agreement or the transactions contemplated by this Agreement notwithstanding any representation by Prior Business Counsel prior to the Closing, and Buyer (on behalf of itself and its Subsidiaries (including, after the Closing, the Group Companies)) hereby agrees that, in the event that a dispute arises after the Closing between Buyer or any of its Subsidiaries (including, after the Closing, the Group Companies), on the one hand, and any Designated Person, on the other hand, Prior Business Counsel may represent one or more Designated Persons in such dispute even though the interests of such Person(s) may be directly adverse to Buyer or its Subsidiaries (including, after the Closing, the Group Companies) and even though Prior Business Counsel may have represented such Group Company in a matter substantially related to such dispute.
Section 10.16 Currency. Unless otherwise specified in this
Agreement or as required by applicable Law, all references to currency, monetary values and dollars set forth herein shall mean United States (U.S.) dollars and all payments hereunder shall be made in U.S. dollars.
Section 10.17 Financing Provisions. Notwithstanding anything to
the contrary in this Agreement, Seller on behalf of itself, its Subsidiaries and each of its Affiliates hereby: (a) agrees that any proceeding, whether in law or in equity, whether in contract or in tort or otherwise, involving the Debt
Financing Sources, relating to, arising out of or resulting from this Agreement, the Debt Financing or any of the agreements (including the Debt Commitment Letter) entered into in connection with the Debt Financing or any of the transactions
contemplated hereby or thereby or the performance of any services thereunder 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 proceeding to the exclusive jurisdiction of such court, (b) agrees that any such proceeding 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 the Debt Commitment Letter or other applicable
definitive document relating to the Debt Financing, (c) agrees not to bring or support or permit any of its Affiliates to bring or support any proceeding of any kind or description, whether in law or in equity, whether in contract or in tort or
otherwise, against any Debt Financing Sources in any way relating to, arising out of or resulting from this Agreement, the Debt Financing, the Debt Commitment Letter or any of the transactions contemplated hereby or thereby or the performance
of any services thereunder in any forum other than any federal or state court in the Borough of Manhattan, New York, New York, (d) agrees that service of process upon Seller or its Affiliates in any such proceeding shall be effective if notice
is given in accordance with Section 10.02, (e) irrevocably waives, to the fullest extent that it may effectively do so, the defense of an inconvenient forum to the maintenance of such proceeding in any such court, (f) knowingly,
intentionally and voluntarily waives to the fullest extent permitted by applicable law trial by jury in any proceeding brought against the Debt Financing Sources in any way relating to, arising out of or resulting from this Agreement, the Debt
Financing, the Debt Commitment Letter or any of the transactions contemplated hereby or thereby or the performance of any services thereunder, (g) agrees that none of the Debt Financing Sources will have any liability to Seller, its Affiliates
or any of its Representatives relating to, arising out of or resulting from this Agreement, the Debt Financing, the Debt Commitment Letter or any of the transactions contemplated hereby or thereby or the performance of any services thereunder,
whether in law or in equity, whether in contract or in tort or otherwise and the Seller (on behalf of itself and its Affiliates and Representatives) agrees not to commence any claim, action, suit, investigation or other proceeding against any
Debt Financing Source with respect to the foregoing or otherwise and otherwise waives any claims or rights against any Debt Financing Source relating to or arising out of this Agreement, any Debt Financing or any of the transactions
contemplated hereby or thereby or the performance of any services thereunder, whether at law or in equity and whether in tort, contract or otherwise and agrees to cause any suit, action or proceeding asserted against any Debt Financing Sources
by or on behalf of Seller, its Affiliates or any Representative thereof in connection with this Agreement, the Debt Financing or any of the transactions contemplated hereby or thereby or the performance of any services thereunder to be
dismissed or otherwise terminated and (h) agrees that the Debt Financing Sources are express third-party beneficiaries of, and may enforce, any of the provisions of Section 10.05, Section 10.11 and this Section 10.17,
and that such provisions shall not be amended in any way materially adverse to the Debt Financing Sources without the prior written consent of the Debt Financing Sources.
[Signature page follows.]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective authorized officers as of the day and year first above written.
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VIAD CORP
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By: /s/ Steve Moster
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Name: Steve Moster
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Title: CEO
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[Signature Page to Equity Purchase Agreement]
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TL VOLTRON PURCHASER, LLC
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By: /s/ Luke Myers
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Name: Luke Myers
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Title: President
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[Signature Page to Equity Purchase Agreement]
EXHIBIT A
ACCOUNTING PRINCIPLES
See attached.
EXHIBIT B
FORM OF INTELLECTUAL PROPERTY ASSIGNMENT AGREEMENT
See attached.
EXHIBIT C
FORM OF INTELLECTUAL PROPERTY LICENSE AGREEMENT
See attached.
EXHIBIT D
FORM OF LLC INTEREST ASSIGNMENT AGREEMENT
See attached.
EXHIBIT E
R&W INSURANCE POLICY
See attached.
EXHIBIT F
SAMPLE CLOSING STATEMENT
See attached.
EXHIBIT G
FORM OF TRANSITION SERVICES AGREEMENT
See attached.