(h) Seller has delivered to or made available to Buyer true, correct, and complete copies of all of the Leases.
Section 5.18 Tangible Property; Sufficiency of Assets.
(a) The facilities, machinery, equipment, furniture, spare parts, office equipment, computer equipment, components, and hardware, improvements, fixtures, vehicles, structures, related capitalized items and
other tangible property that are material to the Company and the Business (the “Tangible Property”) are in good operating condition and repair, subject to ordinary wear and tear, and are suitable for their intended use, except, in each
case, as would not reasonably be expected to be material to the Company.
(b) Except as set forth in Schedule 5.18(b) of the Seller and Company Disclosure Schedule and the services provided under the Transition Services Agreement, the Tangible Property,
together with the other Contracts, rights, assets and properties owned, leased, licensed or held for use by the Company, constitute all of the Contracts, assets, properties and rights necessary and sufficient for the Buyer and the Company to
conduct and operate the Business as currently conducted or proposed to be conducted in substantially the same manner in all material respects as conducted immediately prior to the Closing Date.
(c) Except as set forth in Schedule 5.18(b) of the Seller and Company Disclosure Schedule and the services provided under the Transition Services Agreement and assuming that all
consents and notices set forth in Schedule 5.3 of the Seller and Company Disclosure Schedule and Schedule 5.4 of the Seller and Company Disclosure Schedule have been made or obtained, immediately after the
Closing, the Company will own, or have the right to use, all Tangible Property and all other Contracts, rights, assets and properties that are used in connection with the conduct and operation of Business as conducted immediately prior to the
Closing on the same, or substantially the same, economic basis as conducted immediately prior to the Closing. Immediately after the Closing, except as set forth in Schedule 5.18(b) of the Seller and Company Disclosure
Schedule and the services provided under the Transition Services Agreement, none of the Seller or any of its Affiliates other than the Company shall own any assets or properties, which, immediately prior to the consummation of the
Pre-Transaction Asset Transfers, were primarily used in or primarily held for use in, the Business.
Section 5.19 Labor Matters.
(a) Set forth in Schedule 5.19(a) of the Seller and Company Disclosure Schedule is a list, as of a date within five (5) Business Days of the date hereof, of all current employees of
the Company (other than the Retained Employees) (the “Business Employees”), and each Business Employee’s: (i) name or other identifier; (ii) job title; (iii) employing entity; (iv) full-time/part-time status; (v) classification as
exempt or non-exempt for purposes of the Fair Labor Standards Act; (vi) current annual base salary (including, for part-time Business Employees, actual base salary not annualized) or hourly rate of pay; (vii) annual target bonus and other
target bonuses and target commissions for 2024; (viii) bonuses and commissions to be paid out for 2023; (ix) work location (including location of remote employees); (x) residence location; (xi) whether a direct billable employee or indirect
non-billable employee; (xii) security clearance level (if applicable): (xiii) workers compensation classification code; (xiv) whether on a leave of absence (and if so, expected return date); (xv) amount of accrued and unused annual leave; and
(xvi) whether on a visa or other employer-sponsored work permit. No Retained Employee or any employee of the Seller or any of its Subsidiaries (other than the Company) devotes a majority of his or her employment services and working hours to
the conduct and operation of the Business and is material to the services performed by the Business under any Contract or otherwise to any program or proposal or the pipeline of the Business. No employee of the Seller or any of its
Subsidiaries (other than the Company) primarily provides services to the Business.
(b) Set forth on Schedule 5.19(b) of the Seller and Company Disclosure Schedule is a list, as of a date within five (5) Business Days of the date hereof, of all current individual
independent contractors currently performing services for the Business, including each independent contractor’s: (i) name or other identifier; (ii) the entity they are engaged by; (iii) current rate of pay; (iv) summary of services provided;
and (v) whether s/he has a written Contract for the services provided.
(c) The Company is and, solely with respect to the operation of the Business, the Seller and its other direct and indirect Subsidiaries are, and during the past three (3) years have been in compliance in
all material respects with all applicable Labor Laws. All individuals who perform or have performed services for the Company and the Business have been properly classified in all material respects under applicable Law (i) as employees or
individual independent contractors and (ii) for employees, as an “exempt” employee or a “non-exempt” employee (within the meaning of the Fair Labor Standards Act and state Law), and neither the Company nor, solely with respect to the operation
of the Business, the Seller or any of its other direct and indirect Subsidiaries has, during the past three (3) years, received notice of any pending or, to the Knowledge of the Company, threatened inquiry or audit from any Governmental
Authority concerning any such classifications.
(d) Except as set forth in Schedule 5.19(d) of the Seller and Company Disclosure Schedules, no Business Employee or, solely with respect to the operation of the Business, the Seller
or any of its other direct or indirect Subsidiaries is covered by a Collective Bargaining Agreement, nor is any such Contract currently being negotiated. No other Collective Bargaining Agreement applicable to the Seller or any of its
Subsidiaries, including the Excluded Subsidiary or any Excluded Lower-Tier Subsidiary or Excluded Lower-Tier JV, will result in any Liability for the Company.
(e) Each Business Employee has all work permits, immigration permits, visas or other authorizations required by applicable Law or any Contract for such individual given the duties and nature of such
individual’s services. Each of the Company and, solely with respect to the operation of the Business, the Seller and its other direct and indirect Subsidiaries, has met all requirements in all material respects under Laws relating to the
employment of foreign citizens and residents, including all requirements of Form I-9, and neither the Company nor, solely with respect to the Business, the Seller or any of its other direct or indirect Subsidiaries currently employs any person
who is not permitted to work in the jurisdiction in which such person was employed.
(f) Neither the Company nor, solely with respect to the Business, the Seller or any of its other direct or indirect Subsidiaries is, or has been during the past three (3) years, the subject of, nor, to
the Knowledge of the Company, is there threatened, any Action asserting that the Company, or, solely with respect to the Business, the Seller or any of its other direct or indirect Subsidiaries has committed an unfair labor practice, nor,
except as set forth in Schedule 5.19(f) of the Seller and Company Disclosure Schedules, is there pending or, to the Knowledge of the Company, threatened, nor has there been during the past three (3) years, any organized
effort or demand for recognition or certification or attempt to organize Business Employees by any labor organization. There is no pending nor, to the Knowledge of the Company, threatened labor strike, walk-out, work stoppage, slowdown or
lockout with respect to the Business Employees, and no labor strike, walk-out, work stoppage, slowdown or lockout has occurred in the past three (3) years.
(g) As of the date of this Agreement, no Business Employee has given written or, to the Knowledge of the Company, oral notice to the Company, the Seller or any of its other direct or indirect Subsidiaries
that any such Business Employee intends to terminate his or her employment with the Company or the Seller or any of its other direct or indirect Subsidiaries within one (1) year of the Closing. No Business Employees are in violation of any
term of any employment Contract, non-disclosure Contract or noncompetition Contract.
(h) In the last five (5) years: (i) no allegations of workplace violence, workplace harassment, or psychological or sexual harassment or illegal retaliation or discrimination have been made against any
Business Employee or current or former officer of the Company or, solely with respect to the operation of the Business, of the Seller or any of its other direct or indirect Subsidiaries; (ii) to the Knowledge of the Company, no incidents of any
such workplace violence, workplace harassment, or psychological or sexual harassment or illegal retaliation or discrimination have occurred; and (iii) neither the Company nor, solely with respect to the operation of the Business, the Seller or
any of its other direct and indirect Subsidiaries have entered into any settlement agreement related to allegations of workplace violence, workplace harassment, or psychological or sexual harassment or illegal retaliation or discrimination by
any Business Employee.
(i) Neither the Company nor, solely with respect to the Business, the Seller or any of its other direct or indirect Subsidiaries have incurred any Liability or obligation under the WARN Act that remains
unsatisfied. Within the last three (3) months, there has not been any plant closing or mass layoff, or term of similar import under any applicable similar Law.
Section 5.20 Employee Benefit Plans.
(a) Schedule 5.20(a)(i) of the Seller and Company Disclosure Schedules sets forth a true and complete list of each Company Benefit Plan. Schedule 5.20(a)(ii) of the Seller and Company Disclosure Schedules sets forth a true and complete list of each Seller Benefit Plan. Following the Closing and except as expressly provided for under the Transition
Services Agreement, the Company shall have no Liability with respect to any Seller Benefit Plan (including, without limitation, any Withdrawal Liability related to any such Benefit Plan). Schedule 7.8(c) sets forth a list of
all Continuing Employees who currently hold unvested equity awards with respect to equity of Seller as of immediately prior to the Closing, together with the total amounts of unvested equity held by each such Continuing Employee.
(b) With respect to each material Seller Benefit Plan which provides benefits to Service Providers, the Seller has supplied or made available to the Buyer a true and complete copy (or, to the extent no
such copy exists, an accurate description of material terms) thereof and, to the extent applicable, (i) the most recent summary plan description, summary of material modifications and all other comparable written communications by the Company
or the Seller to current or former Service Providers concerning the extent of the benefits provided under such Seller Benefit Plan during the past three (3) years; (ii) a complete and accurate copy of the annual report (Form Series 5500 and all
schedules and financial statements attached thereto), if any, required under ERISA or the Code, with respect to such Seller Benefit Plan for the three (3) most recent plan years; and (iii) all material written materials provided to current or
former Service Providers during the past three (3) years for such Seller Benefit Plan relating to any amendments, terminations, establishments, increases or decreases in benefits, acceleration of payments or vesting schedules or other events
that would result in any Liability to the Company.
(c) With respect to each Company Benefit Plan, the Company has supplied or made available to the Buyer a true and complete copy (or, to the extent no such copy exists, an accurate description of material
terms) thereof and, to the extent applicable, (i) the most recent documents constituting such Company Benefit Plan, any amendments thereto and all related trust documents; (ii) the most recent summary plan description, summary of material
modifications and all other comparable written communications by the Company or the Seller to current or former Service Providers concerning the extent of the benefits provided under such Company Benefit Plan; (iii) a complete and accurate copy
of the annual report (Form Series 5500 and all schedules and financial statements attached thereto), if any, required under ERISA or the Code, with respect to such Company Benefit Plan for the three (3) most recent plan years; (iv) accurate and
complete copies of all contracts relating to such Company Benefit Plan, including service provider agreements, insurance contracts, minimum premium contracts, stop-loss agreements, investment management agreements, subscription and
participation agreements and recordkeeping agreements; (v) all material written materials provided to current or former Service Providers during the past three (3) years for such Company Benefit Plan relating to any amendments, terminations,
establishments, increases or decreases in benefits, acceleration of payments or vesting schedules or other events that would result in any Liability to the Company; and (vi) all material correspondence, if any, to or from any Governmental
Authority relating to such Company Benefit Plan.
(d) (i) With respect to each Company Benefit Plan and, with respect to each Seller Benefit Plan, except as would not result in any material Liability to the Company, (i) each such Benefit Plan has been
established and administered in all material respects in accordance with its terms and in compliance with the applicable provisions of ERISA, the Code and all other applicable Laws and the terms of any applicable collective bargaining
agreement, (ii) all reports, returns, notices and other documentation required to have been filed with or furnished to the IRS, the DOL, the PBGC, the SEC or any other Governmental Authority or to the
participants or beneficiaries of such Benefit Plan have been filed or furnished on a timely basis, (iii) each such Benefit Plan that is intended to be qualified within the meaning of Section 401(a) of the Code has received a favorable
determination letter or comparable letter from the IRS to the effect that such Benefit Plan satisfies the requirements of Section 401(a) of the Code and that its related trust is exempt from taxation under Section 501(a) of the Code and, to the
Knowledge of the Seller (with respect to an applicable Seller Benefit Plan) and the Company (with respect to an applicable Company Benefit Plan), there are no facts or circumstances that would reasonably be expected to cause the loss of such
qualification, and (iv) each such Benefit Plan subject to Section 409A of the Code is in compliance in all material respects in form and operation with Section 409A of the Code and the applicable guidance and regulations thereunder.
(e) Except as set forth on Schedule 5.20(e) of the Seller and Company Disclosure Schedules, none of the Company and, except as would not result in any Liability to the Company, the Seller, the
Excluded Subsidiary, the Excluded Lower-Tier Subsidiaries or their respective Affiliates, has incurred or is reasonably expected to incur any Liability in respect of post-employment health, medical or life insurance benefits for any current or
former employee, consultant or independent contractor, except as may be required under Section 601 et seq. of ERISA, Section 4980B of the Code (and the regulations thereunder) and any applicable state
coverage continuation Laws (collectively, “COBRA”), for which the covered individual pays the full cost of coverage. The Company does not have any obligations under COBRA with respect to any former employees or qualifying beneficiaries
thereunder, except for obligations that are not material in amount.
(f) None of the Company, or its ERISA Affiliates, sponsors, maintains, contributes to, has an obligation to contribute to or has, or could reasonably be expected to have, any Liability in respect of, or
has in the past six (6) years sponsored, maintained, contributed to or had any Liability in respect of, any defined benefit pension plan (as defined in Section 3(35) of ERISA) or plan subject to Section 412 of the Code or Section 302 or Title
IV of ERISA.
(g) Except as set forth on Schedule 5.20(g) of the Seller and Company Disclosure Schedules, no Company Benefit Plan is a Multiemployer Plan, and none of the Company or its ERISA Affiliates
has at any time maintained or contributed to, or had any Liability in respect of, any Multiemployer Plan or a “multiple employer plan” within the meaning of 210 of ERISA or Section 413(c) of the Code. Neither the execution and delivery of any
Transaction Document or the consummation of the Contemplated Transactions would subject the Company to any Liability under Sections 4203 or 4205 of ERISA. Following the Closing, the Company shall not have any Liability with respect to any
Multiemployer Plan or “multiple employer plan” within the meaning of 210 of ERISA or Section 413(c) of the Code.
(h) To the Knowledge of the Company, no event has occurred and no condition exists that would, either directly or by reason of the Company’s affiliation with any of its ERISA Affiliates, subject the
Company to any Tax, fine, Lien, penalty or other Liability imposed by ERISA, the Code or other applicable Laws or Orders with respect to any Benefit Plan.
(i) Except as set forth on Schedule 5.20(i) of the Seller and Company Disclosure Schedules, none of the execution and delivery of any Transaction Document, shareholder approval of any
Transaction Document or the consummation of the Contemplated Transactions would reasonably be expected to (either alone or in combination with another event) result, with respect to any current or former Service Provider or as would otherwise
create a Liability for the Company, any current or former employee, director or consultant of the Seller or any of its other direct or indirect Subsidiaries, in (i) severance pay or any increase in severance pay upon any termination of
employment after the date of this Agreement, (ii) any payment, compensation or benefit becoming due, or increase in the amount of any payment, compensation or benefit due, (iii) the acceleration of the time of payment or vesting or result in
any funding (through a grantor trust or otherwise) of compensation or benefits, (iv) the payment of any amount that could, individually or in combination with any other such payment, constitute an “excess parachute payment,” as defined in
Section 280G(b)(1) of the Code, or (v) forgiveness in whole or in part of any outstanding loans made by the Company to any Person.
(j) With respect to each Company Benefit Plan, (i) no Actions (other than routine claims for benefits) are pending or, to the Knowledge of the Seller and the Company, threatened with respect to any
Benefit Plan, (ii) to the Knowledge of the Company, no facts or circumstances exist that would reasonably be expected to give rise to any such Actions, (iii) no audit or other Action by the DOL, the IRS or any other Governmental Authority is
pending or, to the Knowledge of the Seller and the Company, threatened with respect to any Benefit Plan, and (iv) there are no audits or Actions initiated pursuant to the Employee Plans Compliance Resolution System or similar proceedings
pending with the IRS or DOL with respect to any Company Benefit Plan.
(k) No Company Benefit Plan is a “multiple employer welfare arrangement” as defined in Section 3(40) of ERISA. Following the Closing, the Company shall not have any Liability with respect to any “multiple
employer welfare arrangement” as defined in Section 3(40) of ERISA.
(l) As of the date of this Agreement, with respect to employees of the Company, all contributions (including all employer contributions and employee salary reduction contributions) or premium payments
required to be made under the terms of any Benefit Plan or in accordance with applicable Law have been timely made or reflected on the Financial Statements, and all contributions or premium payments for any period ending on or prior to the
Closing Date which are not yet due will, on or prior to the Closing Date, have been paid or accrued on the Financial Statements, in each case, in accordance with the Balance Sheet Rules. There are no reserves, assets, surpluses or prepaid
premiums with respect to any Benefit Plan that provides welfare benefits.
(m) The Company does not intend and has not made any commitment (whether written or oral) to establish or enter into any new Company Benefit Plan or to modify the terms of any Company Benefit Plan. Except
as set forth on Schedule 5.20(m), no Company Benefit Plan (i) is a plan, program, practice, or Contract that is sponsored by a professional employer organization or co-employer organization (each, a “PEO”) under which a
current or former Service Provider may be eligible to receive compensation or benefits in connection with the Company’s engagement of a PEO, (ii) is a “multiple employer welfare arrangement” as defined in Section 3(40) of ERISA, (iii) is
intended to be qualified under Section 401(a) of the Code, (iv) is a self-insured plan that provides group health or welfare benefits to current or former Service Providers, or (v) provides benefits to current or former Service Providers who
perform services primarily outside of the United States.
(n) The Company is not liable in any material amount for any payment to any trust or other fund or to any Governmental Authority, with respect to unemployment compensation benefits, social security or
similar benefits or obligations for current or former Service Providers (other than routine payments to be made in the normal course of business and consistent with past practice). There are no pending claims against the Company under any
workers’ compensation plan or policy or for long-term disability.
(o) Except as set forth on Schedule 5.20(o) of the Seller and Company Disclosure Schedules, each Seller Benefit Plan (but only if it provides benefits to one or more Business
Employees) and each Company Benefit Plan that is a group health plan (i) is exempt from or in material compliance with the Patient Protection and Affordable Care Act, the Health Care and Education Reconciliation Act of 2010 and subsequent
agency guidance (collectively, the “2010 Health Care Law”), (ii) the design and operation of such Benefit Plans has not resulted in the incurrence of any penalty or excise tax under Code Section 4980H to the Company pursuant to the 2010
Health Care Law, and (iii) there is nothing that would create a reporting obligation of the Company or excise tax under Section 4980D of the Code for which the Company would have any Liability.
(a) Schedule 5.21 of the Seller and Company Disclosure Schedules sets forth (i) a true and complete list of all material insurance policies held by the Company or, with respect to the
Business, the Seller or any of its other direct or indirect Subsidiaries, as of the date hereof, specifying with respect to each such policy, the name of the insurer, type of coverage, term of policy, limits of liability and current premiums,
and (ii) any material agreements, arrangements or commitments by or relating to the Company under which the Company is required to carry insurance for the benefit of any other Person, except in the ordinary course of business consistent with
past practice. The Company has made available to the Buyer true, complete and correct copies of all such policies and agreements and the loss-runs for the last three (3) years in respect of the Company and the Business.
(b) All such insurance policies and binders are valid, binding, enforceable, and in full force and effect, and all premiums with respect thereto covering all periods up to and including the date of the
Closing have been paid. Neither the Company nor the Seller or any of its other Subsidiaries has received any notice of cancellation or non-renewal of any such policies or binders nor, to the Knowledge of the Company and the Seller, is the
termination of any such policies or binders threatened. There is no material Action pending under any of such policies or binders as to which coverage has been denied or disputed by the underwriters of such policies or binders. The Company
has and, with respect to the Business, the Seller and its other direct and indirect Subsidiaries have, performed in all material respects all of their respective obligations under such insurance policies during the last three (3) years. Except
as set forth in Schedule 5.21 of the Seller and Company Disclosure Schedules, such insurance policies (i) are sufficient for compliance in all material respects with all requirements of applicable Law and all Contracts relating
to the Company and the Business, (ii) will remain in full force and effect through the respective dates set forth in Schedule 5.21 of the Seller and Company Disclosure Schedules without the payment of additional premiums, and
(iii) do not provide for any retrospective premium adjustment or other experienced-based Liability on the part of the Company. Following the Closing Date, the Company will have no Liabilities pursuant to any insurance policies that are subject
to audit. Neither the Company nor, with respect to the Business, the Seller has been refused any insurance, nor has any such coverage been limited or a notice that a defense will be afforded with reservation of rights otherwise been provided,
by any insurance carrier to which the Company or, with respect to the Business, the Seller has applied for any such insurance or with which the Company or, with respect to the Business, the Seller has carried insurance during the last three (3)
years.
Section 5.22 Government Contracts.
(a) Current Government Contracts and Government Contract Bids. Schedule 5.22(a)(i) of the Seller and Company Disclosure Schedules sets forth, as of the date hereof, a complete list
of all Current Government Contracts having a value in excess of $500,000. Each such Current Government Contract (x) was legally awarded to the Company, (y) is a legal, valid and binding obligation of the Company, and (z) is in full force and
effect and enforceable against the Company, in accordance with its terms, subject to proper authorization and execution by the other party, bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium and other Laws of general
application affecting the rights and remedies of creditors, and general principles of equity. The Company has made available to the Buyer true, complete and correct copies of all Current Government Contracts set forth on Schedule 5.22(a)
of the Seller and Company Disclosure Schedules. Schedule 5.22(a)(ii) of the Seller and Company Disclosure Schedules sets forth, as of the date hereof, a complete list of all Government Contract Bids projected to have a value in
excess of $500,000.
(b) Breach; Default; Compliance. Except as disclosed in Schedule 5.22(b) of the Seller and Company Disclosure Schedules, with respect to each Current Government Contract, (i)
neither the Company nor, with respect to the Business, the Seller, or any of its other direct or indirect subsidiaries, have received in writing, or to the Knowledge of the Company, orally, a cure notice, a show cause notice or a stop work
notice and (ii) neither the Company nor, with respect to the Business, the Seller, or any of its other direct or indirect Subsidiaries, have been threatened in writing with termination for default. Except as disclosed in Schedule 5.22(b)
of the Seller and Company Disclosure Schedules, all representations and certifications executed, acknowledged or submitted by the Company with respect to any Current Government Contract were true and accurate in all material respects as of
their effective date, and the Company has complied with all such representations and certifications in all material respects, as applicable. The Company has complied in all material respects with the terms and conditions of each such Current
Government Contract and Government Contract Bid.
(c) Government Claims. Except as set forth in Schedule 5.22(c) of the Seller and Company Disclosure Schedules, during the past three (3) years (i), to the Company’s Knowledge,
neither the Company, nor, with respect to Business, the Seller or any of its other direct or indirect Subsidiaries, nor any of their respective Principals, as such term is defined by FAR 2.101, are or have been under administrative, civil or
criminal investigation or indictment by any Governmental Authority; (ii) there is no credible evidence that the Company, nor with respect to Business, the Seller or any of its other direct or indirect Subsidiaries, its Affiliates, or any of
their respective Principals have committed a violation of federal criminal Law involving fraud, conflict of interest, bribery or gratuity violations found in Title 18 U.S.C. or a violation of the civil False Claims Act (31 U.S.C. §§ 3729-3733);
(iii) to the Company’s Knowledge, there is no pending Action with respect to any Government Contract related to the Company, nor, with respect to Business, the Seller or any of its other direct or indirect Subsidiaries, nor any of their
respective Principals resulting in, or which is reasonably likely to result in, a Material Adverse Effect; and (iv) there is no outstanding material claim against or by the Company, nor, with respect to Business, the Seller or any of its other
direct or indirect Subsidiaries, arising under or relating to any Government Contract. During the past three (3) years, neither the Company nor, with respect to Business, the Seller or any of its other direct or indirect Subsidiaries, have
received written notice of any administrative, civil or criminal investigation or audit by any Governmental Authority alleging any violation of federal criminal Law involving fraud, conflict of interest, bribery or gratuity violations found in
Title 18 U.S.C. or a violation of the civil False Claims Act (31 U.S.C. §§ 3729-3733).
(d) Suspension or Debarment. (i) Neither the Company nor, with respect to Business, the Seller or any of its other direct or indirect Subsidiaries, nor any of their respective Principals have been
within the past three (3) years and are not currently, suspended or debarred pursuant to FAR 9.4, or otherwise declared ineligible from doing business with the U.S. government; and (ii) within the past three (3) years, to the Company’s
Knowledge, no such suspension, debarment or exclusion proceeding has been initiated or threatened against the Company or, with respect to Business, the Seller or any of its other direct or indirect Subsidiaries, or any of their respective
Representatives.
(e) Certifications and Disclosures. Except as disclosed on Schedule 5.22(e) of the Seller and Company Disclosure Schedules, with respect to each Government Contract and
Government Contract Bid, in the past three (3) years: (i) the Company has made all certifications and disclosures to a Governmental Authority that are required with respect to any Government Contract; (ii) the representations, disclosures,
certifications and warranties made by or on behalf of the Company with respect to the Government Contracts and Government Contract Bids, were current, accurate, and complete in all material respects as of their submission date, and the Company
has complied with all such representations, certifications and warranties, as applicable; and (iii) neither the Company, nor any of its Representatives has taken any action that would reasonably be expected to give rise to a claim for price
adjustment under the Truthful Cost or Pricing Data statute.
(f) Security Clearances. Except as may be prohibited by the NISPOM or other applicable Law, Schedule 5.22(f) of the Seller and Company Disclosure Schedules sets forth (i) all
facility security clearances held by the Company, or with respect to the Business, the Seller, or any of its other direct or indirect Subsidiaries, and (ii) all personnel security clearances held by the Company’s, or with respect to the
Business, the Seller’s or any of its other direct or indirect Subsidiary’s, current employees to the extent such clearances are required in connection with any Current Government Contract or Government Contract Bid. The Company or, with
respect to the Business, the Seller or any of its other direct or indirect Subsidiaries, as applicable, have received at least a “satisfactory” security rating from the DCSA with respect to their respective facility security clearances, or have
achieved a “satisfactory” rating on a security self-assessment conducted in lieu of a DCSA evaluation. Neither the Company nor, with respect to the Business, the Seller or any of its other direct or indirect Subsidiaries, has received written
or, to the Knowledge of the Company, oral notice of any liabilities or obligations relating to or arising from any violation of the NISPOM or prior failure to maintain at least a “satisfactory” rating from the DCSA. Except as set forth on in Schedule
5.22(f) of the Seller and Company Disclosure Schedules, all facility security clearances held by the Company are currently in full force and effect. Except as set forth on Schedule 5.22(f) of the Seller and Company
Disclosure Schedules in the past three (3) years, the Company and its employees and contractors, or with respect to the Business, the Seller, or any of its other direct or indirect Subsidiaries, their respective employees, and their respective
contractors, have complied in all material respects with all applicable Law governing security clearances in the performance of any obligations under any Government Contract or Government Contract Bid.
(g) Set Aside Status. Schedule 5.22(g)(i) of the Seller and Company Disclosure Schedules sets forth, as of the date hereof, a complete list of all Current Government Contracts
awarded and Government Contract Bids submitted on the basis of the Company’s representation that it qualifies as a small business or that it is eligible for other contracts set-aside for a particular socioeconomic or size status. Except as
disclosed in Schedule 5.22(g)(ii) of the Seller and Company Disclosure Schedules, each representation and/or certification made by the Company or incorporated into any Government Contract or Government Contract Bid proposal that
pertains to any size status or other preferential status was current and accurate as of its effective date, and the Company has complied with all Laws that require the Company to provide notice or acknowledgment of any change in size status or
preferential status.
(h) Organizational Conflicts of Interest. Except as set forth in Schedule 5.22(h) of the Seller and Company Disclosure Schedules, there are no Current Government Contract,
Government Contract Bid terms or provisions, or “organizational conflicts of interest” (as defined by FAR Subpart 9.5) mitigation plans, that would reasonably be expected to render the Company or the Business ineligible to participate on any
specifically identified Government Contract or Government Contract Bid.
(i) Contractual Compliance. Except as set forth in Schedule 5.22(i) of the Seller and Company Disclosure Schedules, (i) neither the Company, nor, with respect to Business, the
Seller or any of its other direct or indirect Subsidiaries, have recognized on any Current Government Contracts any revenue in excess of the Governmental Authority’s current contractual obligation under such Current Government Contract; (ii) no
money due to the Company, nor, with respect to Business, the Seller or any of its other direct or indirect Subsidiaries, pertaining to any Current Government Contract has been withheld or set off other than in accordance with the withholding
provisions of any such Current Government Contract; and (iii) none of the Government Contract Bids or Current Government Contracts are currently the subject of bid or award protest proceedings, and no Person has notified the Company, nor, with
respect to Business, the Seller or any of its other direct or indirect Subsidiaries, in writing that any Governmental Authority, distributor, original equipment manufacturer, or reseller under a Current Government Contract intends to seek the
Company’s agreement to lower rates under any of the Government Contract Bids. Neither the Company, nor with respect to the Business, the Seller, or any of its other direct or indirect Subsidiaries, is performing at-risk under a Government
Contract or for a prospective Government Contract; for the avoidance of doubt, “performing at-risk” means incurring direct costs at the risk of the Company prior to (or in anticipation of), and without obligation of, funding under a Government
Contract. Within the past three (3) years, neither the Company nor, with respect to the Business, the Seller or any of its other direct or indirect Subsidiaries has violated any statutory, regulatory, or contractual restrictions on
subcontracting, including FAR 52.215-22 and FAR 52.215-23.
(j) Assertion of Rights and Marking Data. Within the past three (3) years, all technical data, computer Software and computer Software documentation (as those terms are defined under applicable
Law and the terms of the Government Contracts) developed, delivered, or used under or in connection with the Government Contracts have been properly and sufficiently marked and protected in all material respects so that no more than Government
Purpose Rights, as such term is defined in the FAR, if any, have been provided.
(k) Government Data. In the past three (3) years, the Company and, with respect to Business, the Seller and its other direct or indirect Subsidiaries has complied in all material respects with the
data security, cybersecurity, and physical security systems and procedures required by or applicable to its Government Contracts and Government Contract Bids. The Company and, with respect to Business, each of the Seller and its other direct
or indirect Subsidiaries, are in compliance in all material respects with the requirements of all FAR and applicable agency-specific requirements regarding cybersecurity and safeguarding information, including those pertaining to the
Cybersecurity Maturity Model Certification (CMMC) framework and NIST SP 800-171 DoD Assessment Requirements (as applicable), and the requirements of DFARS 252.204-7012, Safeguarding Covered Defense Information and Cyber Incident Reporting. All
material facts set forth in or acknowledged by, and any representations or certifications made or submitted by or on behalf of the Company in connection with the Company’s and any Company Subsidiary’s compliance with data security,
cybersecurity, and physical security compliance, were materially true and accurate at the time of submission, and no facts exist that would materially decrease Supplier Performance Risk System (SPRS) assessment scores of the Company. Except as
disclosed on Schedule 5.22(k) of the Seller and Company Disclosure Schedules, in the past three (3) years, neither the Company nor, with respect to Business, the Seller or any of its other direct or indirect Subsidiaries, has had or
experienced any material breach of data security or cybersecurity, whether physical or electronic, related to any Government Contract or Government Contract Bid. In the past three (3) years, any data security, cybersecurity, or physical
security breach related to any Government Contract or Government Contract Bid required to be reported to a Governmental Authority or higher tier contractor has been reported to the necessary Governmental Authority or higher tier contractor, as
required by the terms of the Government Contract, Government Contract Bid, or applicable Law.
(l) Government Contract Personnel. Within the past three (3) years, all personnel of the Company, with respect to the Business, the Seller or any of its other direct or indirect Subsidiaries; and,
to the Knowledge of the Company, any subcontractor, that performed or are currently performing under any Government Contract, met or meet all express qualification requirements for the labor categories under which they have been charged, or are
being charged, or a related customer approval or waiver has been obtained. In the past three (3) years, neither the Company nor with respect to the Business, the Seller, or any of its other direct or indirect Subsidiaries, nor, to the
Knowledge of the Company, any subcontractor, has replaced any identified key personnel, as such term is defined by the applicable Current Government Contract, without obtaining all required approvals required for replacement of such key
personnel. All key personnel currently performing under any Government Contract are employed by the Company. The Company has during the past three (3) years been in compliance in all material respects with 18 U.S.C. Section 207 and
implementing regulations, and DFARS 252.203-7000 governing post-employment conflict of interest restrictions applicable to Company or Affiliate employees formerly employed by a Governmental Authority.
(m) Performance Evaluations. No Governmental Authority has assigned to the Company or with respect to the Business, the Seller, or any of its other direct or indirect Subsidiaries, a rating below
“satisfactory” in connection with any contractor performance assessment report or similar evaluation of past performance, and no performance review states that the Governmental Authority would not recommend using the Company or with respect to
the Business, the Seller, or any of its other direct or indirect Subsidiaries, in the future.
(n) Cost Accounting. The Company’s cost accounting system and procurement systems and the associated entries reflected in the Company’s financial records with respect to the Government Contracts
and Government Contract Bids are in material compliance with applicable Law and the Company’s Government Contracts, and the Company’s, or with respect to the Business, the Seller’s, or any of its other direct or indirect Subsidiaries’,
accounting systems, as applicable, have been determined by the U.S. Government to be adequate for accumulating and billing costs under Government Contracts. The Company has not received notice of, and there is no reasonable basis for, a
finding of fraud or any claim of any material liability as a result of defective pricing, mischarging or overpayments on the part of the Company. The Company has not undergone, the Company has not received any communication that it will be
subject to, and there is no basis for any audit by a Governmental Authority whether arising under or relating to any Government Contract or otherwise, other than routine audits conducted by the U.S. Government in the ordinary course of
business.
Section 5.23 Compliance with Laws.
(a) The Company and, with respect to the operation of the Business, the Seller and its other direct and indirect Subsidiaries, are and for the last five (5) years have been in compliance in all material
respects with all Laws and Orders to which the Company and the Business are subject. No Action, demand or, to the Knowledge of the Company, investigation or review by any Governmental Authority with respect to the Company or the Business or
affecting any properties, assets, or Liabilities thereof is pending or, to the Knowledge of the Company, threatened, nor has the Company or the Seller or any of its other direct or indirect Subsidiaries received written or, to the Knowledge of
the Company, oral notice in the last five (5) years from any Governmental Authority that such Person is not in compliance with any applicable Law or Order, except as, individually or in the aggregate, has not been and would not reasonably be
expected to be material to the Company or the Business.
(b) The Company has and, with respect to the Business, the Seller and any of its other direct or indirect Subsidiaries have in each case obtained and hold all Permits necessary to own, use, lease or
operate the properties and other assets and to carry on and conduct the Company’s business and operations and the business and operations of the Business in all material respects, as presently conducted. There has occurred no material default
under, or violation of, any such Permit, and each such Permit is in full force and effect and validly existing. Except as set forth in Schedule 5.23(b) of the Seller and Company Disclosure Schedules, neither the Company
nor, with respect to the Business, the Seller or any of its Affiliates have received any written communication that any of the Permits are not currently in good standing. Schedule 5.23(b) of the Seller and Company
Disclosure Schedules sets forth a list of all of the current Permits issued to the Company that are material to the operation of the Business. All fees and charges with respect to such Permits as of the date hereof have been paid in full. The
Company is and has for the past three (3) years been in compliance in all material respects with all such Permits, and, to the Knowledge of the Company, no event has occurred that, with or without notice or lapse of time or both, would
reasonably be expected to result in any breach of, or default under, or the revocation, suspension, lapse or limitation of any term, condition or provision of any Permit set forth in Schedule 5.23(b) of the Seller and
Company Disclosure Schedules, except as would not reasonably be expected to be material to the Company and its Subsidiaries, taken as a whole or the Business. In the past three (3) years, neither the Company nor, with respect to the Business,
the Seller or any of its Affiliates has received any written notice (and, to the Knowledge of the Company and, with respect to the Business, the Seller or any of its Affiliates, no Governmental Authority or other Person has threatened any
notice) (a) alleging that any of the Company or, with respect to the Business, the Seller or any of its Affiliates are not in compliance with, or has violated, any such Permit, (b) notifying the Company, the Seller, or any of its Affiliates of
the revocation or withdrawal of any such Permit, or (c) regarding any other circumstance which would reasonably be expected to result in the revocation, cancellation, suspension or any material and adverse modification of any such Permit or
imposing any condition, limitation, modification, amendment, cancellation or termination of any such Permit that would have a material and adverse impact on the operation of the business or operations of the Company or the Business, in each
case, which remains unresolved. To the Knowledge of the Company, there are no facts or circumstances in existence which are reasonably likely to prevent the Company from renewing each such Permit.
Section 5.24 Environmental Matters.
(a) Except as would not have a material effect on the Company, (i) the Company and, with respect to the Business, the Seller and each of its other material direct or indirect Subsidiaries have, during the
past three (3) years, complied in all material respects and are in compliance in all material respects with all applicable Environmental Laws, (ii) neither the Company nor, with respect to the Business, the Seller or any of its other direct or
indirect Subsidiaries has received from any Governmental Authority in the last three (3) years any written notice, demand, letter, claim or request for information alleging that it is in material violation of or liable under any Environmental
Law or have any other Liability described in this Section 5.24(a); (iii) neither the Company nor, with respect to the Business, the Seller or any of its other direct or indirect Subsidiaries is subject to any Orders, decrees,
injunctions or other arrangements with any Governmental Authority for any material Liability under any Environmental Law or relating to Hazardous Substances; (iv) to the Knowledge of the Company, none of the properties that the Company or, with
respect to the Business, the Seller or any of its direct or indirect Subsidiaries leases or otherwise occupies, or has formerly leased or otherwise occupied, contains any underground storage tanks, asbestos-containing material, lead-based
paint, or polychlorinated biphenyls in violation of any Environmental Law or that would reasonably be expected to result in Liability under any Environmental Law; and (v) neither the Company nor, with respect to the Business, the Seller or any
of its direct or indirect Subsidiaries has engaged in any activities involving the generation, use, handling or disposal of any Hazardous Substances in material violation of any Environmental Law or that would reasonably be expected to result
in any Liability under any Environmental Law or otherwise.
(b) As used herein, the term “Environmental Law” means any Law relating to: (i) the protection, preservation, investigation, restoration or reclamation of the environment, health and safety, or
natural resources or exposure to any harmful or hazardous material, (ii) the handling, use, presence, discharge, storage, treatment, removal, transportation, management, disposal, release or threatened release of any Hazardous Substance,
chemical substance or waste water or (iii) noise, odor, wetlands, pollution, contamination or any injury or threat of injury to Persons or property.
(c) As used herein, the term “Hazardous Substance” means any: (i) substance that is listed, classified or regulated in any concentration pursuant to, or forms the basis of Liability under, any
Environmental Law; (ii) any petroleum product or by-product, asbestos or asbestos-containing material, lead-containing paint or plumbing, polychlorinated biphenyls, radioactive materials or radon; or (iii) any other substance which may be the
subject of regulatory action by any Governmental Authority pursuant to any Environmental Law.
Section 5.25 International Trade and Anti-Corruption.
(a) The Company and, with respect to the Business, the Seller and each of its direct or indirect Subsidiaries, has been during the last five (5) years, and is currently, in compliance in all material
respects with all applicable International Trade Laws and neither the Company nor, with respect to the Business, the Seller or any of their respective direct or indirect Subsidiaries nor, to the Knowledge of the Company, any of their respective
directors, officers, employees, agents, representatives, or other Persons acting on their behalf has engaged in or is currently engaged in any conduct that is prohibited under International Trade Laws, except, in each case, as would not
reasonably be expected to be material to the Company or the Business. Notwithstanding any of the foregoing, except, in each case, as would not reasonably be expected to be material to the Company or the Business during the last five (5) years,
neither the Company nor, with respect to the Business, the Seller or any of its other direct or indirect Subsidiaries or, to the Knowledge of the Company, any of their respective directors, officers, employees, agents, representatives, or other
Persons acting on their behalf: (i) has been a Sanctioned Person; (ii) has participated in any transaction involving a Sanctioned Person; (iii) has maintained employees or assets of any kind in a Sanctioned Jurisdiction; (iv) has directly or
indirectly provided any financing to or for the benefit of any Sanctioned Person or has directly or indirectly conducted any transaction or engaged in any dealings with or for the benefit of any Sanctioned Person; or (v) has imported, exported
(including deemed exportation), re-exported or transferred, directly or indirectly, any goods, technical data, technology or services in violation of any applicable International Trade Laws.
(b) For the past five (5) years, the Company, and with respect to the Business, the Seller and each of its other direct and indirect Subsidiaries and each of their respective directors, officers,
employees, or to the Knowledge of the Company, any agent, representative, and any other Person acting on their behalf, has been, and is currently in compliance in all material respects with Anti-Corruption Laws. Neither the Company nor with
respect to the Business, the Seller or any of its other direct or indirect Subsidiaries, nor any of their respective directors, officers, employees, or, to the Knowledge of the Company, any agent, representative, or other Person acting on their
behalf has violated any Anti-Corruption Laws. For the past five (5) years, neither the Company nor, with respect to the Business, the Seller or any of its other direct or indirect Subsidiaries nor any of their respective directors, officers,
employees, or, to the Knowledge of the Company, any agent, representative, or any other Person acting on their behalf, has directly or indirectly violated any, or has been subject to actual or pending or threatened Action alleging violations on
the part of any of the foregoing Persons, of the Anti-Corruption Laws. For the past five (5) years, neither the Company nor, with respect to the Business, the Seller or any of its other direct or indirect Subsidiaries nor any of their
respective directors, officers, employees, or, to the Knowledge of the Company, any agent, representative, or any other Person acting on their behalf has paid, offered, promised, or authorized the payment of money or anything of value, directly
or indirectly, to any government official, any political party, or any other Person for the purpose of influencing any act or decision or to secure any improper advantage. For the past five (5) years, the Company and, with respect to the
Business, the Seller and each of its Subsidiaries has maintained accurate books and records in compliance with all Anti-Corruption Laws, including properly documenting in all material respects all expenses, the business purpose for each, and
supporting invoices and receipts for each. For the past three (3) years, the Company and, with respect to the Business, the Seller and each of its other Subsidiaries has implemented and maintained effective internal controls, policies, and
procedures reasonably designed to prevent and detect violations of all applicable Anti-Corruption Laws, except, in each case, as would not reasonably be expected to be material to the Company or the Business.
(c) For the past five (5) years, neither the Company nor, with respect to the Business, the Seller or any of its other direct or indirect Subsidiaries nor any of their respective directors, officers,
employees, or to the Knowledge of the Company, any other Person acting on their behalf, has received from any Governmental Authority or any other Person any written notice of any violation, alleged violation, or any suspected violation of any
Anti-Corruption Laws or International Trade Laws, or conducted any internal investigation with respect to, or made any voluntary or involuntary disclosure to a Governmental Authority concerning, any actual, suspected, or alleged material
violation of any Anti-Corruption Laws or International Trade Laws.
Section 5.26 Related Party Transactions. Except for (i) this Agreement, the Transaction Documents and the Contemplated Transactions, and (ii) Benefit
Plans and other Contracts relating to labor and employment matters, in each case, set forth in Schedule 5.19 or Schedule 5.20 of the Seller and Company Disclosure Schedules, Schedule 5.26 of the
Seller and Company Disclosure Schedules sets forth each Contract currently in effect relating to the Business between a Related Party, on the one hand, and the Company, on the other hand (the “Related Party Agreements”). Except for
the Related Party Agreements or as otherwise set forth on, Schedule 5.26 of the Seller and Company Disclosure Schedules, other than as set forth on Schedule 5.18(b) or Schedule 5.18(c) of the
Seller and Company Disclosure Schedules and the services and assets covered under the Transition Services Agreement, no Related Party (a) has entered into any Contract, arrangement (including for compensation), understanding, indebtedness,
payment or payment schedule, or transaction involving the Company which is currently in effect or is binding on, or would reasonably be expected to result in any material Liability to, the Company, (b) is competing with the Business, or (c)
has commenced or threatened to commence any Action against the Company (other than rights to receive compensation for services performed, or indemnification, as an officer, director or employee of the Business). The Company is not currently
party to any Contract pursuant to which it has borrowed money from, or extended credit to, any Related Party. No Related Party pursuant to clause (ii)(A) of the definition thereof, or, to the Knowledge of the Company, pursuant to clause
(ii)(B) or (ii)(C) of the definition thereof, has any material interest in any material property used by the Company, or in any provider of products or services to the Company. For purposes hereof, “Related Party” means (i) the Seller
or any Affiliate of the Seller (other than the Company), or (ii) (A) any officer or director of the Company, (B) any employee of the Company, or (C), any individual related by blood, marriage or adoption to any of the foregoing individuals or
any entity in which any such individual owns any beneficial interest.
Section 5.27 Brokers. Except as disclosed on Schedule 5.27 of the Seller and Company Disclosure Schedules, no broker finder, investment banker or
other similar Person has been authorized to act on behalf of the Company in such capacity or is entitled to any brokerage fees, finder’s fees or commissions or similar payments in connection with the Contemplated Transactions based on any
arrangement or Contract made by or on behalf of the Company.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF THE BUYER
Except as set forth in the Buyer Disclosure Schedules (subject to Section 10.9), the Buyer represents and warrants to the Seller as follows:
Section 6.1 Corporate Organization. The Buyer has been duly formed and is validly existing as a corporation in good standing under the Laws of its
jurisdiction of organization. The Buyer has the requisite power and authority to own or lease its properties and to conduct its business as it is now being conducted, except where the failure to have such power and authority would not
reasonably be expected to adversely affect or restrict the ability of the Buyer to enter into and perform its obligations under any Transaction Document to which it is or will be a party. The Buyer is duly licensed or qualified and in good
standing as a foreign entity in all jurisdictions in which it is required to be so licensed or qualified, except where failure to be so licensed or qualified would not have a material adverse effect on the ability of the Buyer to enter into
the Transaction Documents or consummate the Contemplated Transactions.
Section 6.2 Due Authorization. The Buyer has all requisite power and authority to execute and deliver each Transaction Document to which the Buyer
is or will be a party and to consummate the Contemplated Transactions and to perform its obligations hereunder and thereunder. The execution and delivery by the Buyer of each Transaction Document to which it is or will be a party and the
consummation of the Contemplated Transactions has been duly and validly authorized and approved by the board of directors of the Buyer, and no other proceeding, consent or authorization on the part of the Buyer is or will be necessary to
authorize, execute, deliver or perform its obligations under any Transaction Document to which it is or will be a party or to consummate the Contemplated Transactions. Each Transaction Document to which the Buyer is or will be a party, has
been or will be duly and validly executed and delivered by the Buyer and constitutes, or will constitute, a legal, valid and binding obligation of the Buyer, enforceable against the Buyer in accordance with its terms, subject to the
Enforceability Exceptions.
Section 6.3 No Conflict. Except with respect to clauses (a) and (b) as would not reasonably be expected to materially delay, materially restrict,
prohibit or materially and adversely affect the Buyer’s ability to consummate the Contemplated Transactions, the execution and delivery by the Buyer of each Transaction Document to which it is or will be a party and the consummation of the
Contemplated Transactions do not and will not:
(a) breach, violate, conflict with or result in a default under any provision of, or constitute an event that, after notice or lapse of time or both, would result in a breach or violation of or conflict or
default under, or accelerate the performance required by, or result in the termination of or give any Person the right to terminate, any material Contract to which the Buyer is a party or by which any of the Buyer’s assets are bound;
(b) assuming compliance with the matters addressed in Section 6.4, breach, violate, conflict with or result in a default under, or create a right of amendment, termination, cancellation or
acceleration of any rights or obligations under, any provision of, or constitute an event that, after notice or lapse of time or both, would result in any of the foregoing under any applicable Law or Order binding upon or applicable to the
Buyer or any of its assets; or
(c) violate or conflict with the Organizational Documents of the Buyer.
Section 6.4 No Authorization or Consents Required. Except (i) as would not reasonably be expected to materially delay, materially restrict or
prohibit or materially and adversely affect the Buyer’s ability to consummate the Contemplated Transactions, or (ii) as may be required solely as a result of any facts or circumstances relating to the Seller or any of its Affiliates, no
notice to, consent, approval or authorization of or designation, declaration or filing with any Governmental Authority is required by the Buyer with respect to the Buyer’s execution or delivery of any Transaction Document to which it is in
will be a party or the consummation of the Contemplated Transactions.
Section 6.5 Litigation. As of the date hereof, there are no actual, pending or, to the Knowledge of the Buyer, threatened Actions before or by any Governmental Authority against the Buyer that would reasonably be expected
to materially adversely affect or restrict the ability of the Buyer to enter into and perform its obligations under any Transaction Document to which it is or will be a party.
Section 6.6 Investment Purpose. The Buyer is acquiring the Shares for its own account with the present intention of holding such securities for
investment purposes and not with a view to, or for sale in connection with, any distribution of such securities in violation of any federal or state securities Laws. The Buyer agrees that the Shares may not be sold, transferred, offered for
sale, pledged, hypothecated or otherwise disposed of without registration under the Securities Act and any applicable state securities Laws, except pursuant to an exemption from such registration under the Securities Act and such Laws. The
Buyer is able to bear the economic risk of holding the Shares for an indefinite period (including total loss of its investment), and has sufficient knowledge and experience in financial and business matters so as to be capable of evaluating
the merits and risk of its investment.
Section 6.7 Brokers. Except as set forth on Schedule 6.7 of the Buyer Disclosure Schedules, no broker, finder, investment banker or other similar
Person is entitled to any brokerage fees, finder’s fees or commissions or similar payments in connection with the Contemplated Transactions based upon any arrangements or Contract made by the Buyer or any of its Affiliates.
Section 6.8 No Foreign Ownership or Control. The Buyer is (i) a “U.S. Person” as defined under Appendix C of the NISPOM; (ii) not under foreign,
ownership, control, or influence (“FOCI”) as defined under 32 C.F.R. § 117.11; (iii) not a “foreign person” as defined by 31 C.F.R. § 800.224, (iv) not under the “control,” as defined by 31 C.F.R. § 800.208, of a “foreign person” as defined
by 31 C.F.R. § 800.224, and (v) not a “foreign” Person for purposes of ITAR 22 C.F.R. § 120.63.
Section 6.9 Financing. The Buyer has sufficient funds and available credit to permit the Buyer to consummate the Contemplated Transactions, and to
pay all related fees and expenses. Notwithstanding anything to the contrary contained herein, the Buyer acknowledges and agrees that its obligations to consummate the transactions contemplated hereby are not contingent upon its ability to
obtain any third party financing.
Section 6.10 Solvency. Upon consummation of the transaction contemplated hereby, the Buyer, the Company and its Subsidiaries will not (a) be insolvent
or left with unreasonably small capital, (b) have incurred debts beyond their ability to pay such debts as they mature, or (c) have liabilities in excess of the reasonable market value of its assets. Buyer is not entering into this Agreement
with the intent to hinder, delay or defraud either present or future creditors of the Company.
Section 6.11 Section 338(h)(10) Election. The Buyer is not aware of any fact or circumstance that would prohibit or invalidate the Section 338(h)(10)
Election.
Section 6.12 R&W Insurance Policy. The R&W Policy (including all exclusions set forth therein) to be bound and issued to the Buyer in
connection with the Closing will be in the form of policy set forth in Exhibit G.
ARTICLE VII
COVENANTS
Section 7.1 Covenants Regarding Information.
(a) In order to facilitate the resolution of any claims made against or incurred by the Seller (as it relates to the Company) or in connection with historical tax or financial matters or audits relating
to the Company, for a period of five (5) years after the Closing, the Buyer shall (i) retain the books and records relating to the Company relating to periods prior to the Closing and (ii) afford the Representatives of the Seller reasonable
access (including the right to make, at the Seller’s expense, photocopies), during normal business hours, to such books and records; provided, however, that the Buyer shall notify the Seller in writing at least thirty (30) days
in advance of destroying any such books and records prior to the fifth anniversary of the Closing Date in order to provide the Seller the opportunity to copy such books and records in accordance with this Section 7.1(a).
Notwithstanding anything to the contrary contained in this Section 7.1(a), the Seller and its Representatives shall not be required to have access to (a) individual performance or evaluation records, medical histories,
personally-identifiable information, or other information, in each case to the extent such access would be in violation of applicable Laws or (b) information that would reasonably be likely to result in the loss of attorney-client privilege of
the Buyer, the Company or any of their respective Affiliates, (clauses (a) and (b), collectively, the “Seller Post-Close Access Limitations”); provided, that the Buyer and its Affiliates shall use commercially reasonable efforts
to provide access to such information in an alternative manner that does not violate applicable Law or result in the loss of any privilege.
(b) For a period of five (5) years after the Closing, the Seller shall (i) retain all books and records relating to the Business relating to periods prior to the Closing to the extent not transferred in
connection with the Pre-Transaction Asset Contribution, and (ii) afford the Representatives of the Buyer reasonable access (including the right to make, at the Buyer’s expense, photocopies), during normal business hours, to such books and
records; provided, however, that the Seller shall notify the Buyer in writing at least 30 days in advance of destroying any such books and records prior to the fifth anniversary of the Closing Date in order to provide the Buyer
the opportunity to copy such books and records in accordance with this Section 7.1(b). Notwithstanding anything to the contrary contained in this Section 7.1(b), the Buyer and its Representatives shall not be required to
have access to (a) individual performance or evaluation records, medical histories, personally-identifiable information, or other information, in each case to the extent such access would be in violation of applicable Laws or (b) information
that would reasonably be likely to result in the loss of attorney-client privilege of the Seller or its Affiliates; provided, that the Seller and its Affiliates shall use commercially reasonable efforts to provide access to such
information in an alternative manner that does not violate applicable Law or result in the loss of any privilege.
(c) For a period of five (5) years from and after the Closing, the Seller shall, and shall cause each of its Affiliates to, keep confidential and not disclose without the prior written consent of the Buyer
and not otherwise use any information of a confidential or proprietary nature of or regarding the Company or the Business, including methods of operation, business methods or processes, products, prices, fees, costs, technology, inventions,
trade secrets, know-how, Software, marketing methods, plans, personnel, suppliers, competitors, markets or other specialized information or proprietary matters (collectively, “Business Confidential Information”); provided, that
(1) Business Confidential Information shall not include information that (i) is currently generally publicly available or that has, prior to such disclosure, become generally publicly available, in each case other than as a result of disclosure
by or on behalf of the Seller or any of its Affiliates in breach of this Agreement, or (ii) is independently developed by or on behalf of the Seller or its Representatives without any reference to or use of the Business Confidential Information
or any breach of this Section 7.1(c) and (2) the covenants in this Section 7.1(c) will not be limited in duration, to five (5) years from and after the Closing, with respect to any Business Confidential Information that
constitutes a trade secret, but, rather, such covenants shall remain in place so long as such Business Confidential Information remains a trade secret under applicable Law (it being understood that such covenants shall nonetheless remain in
place if such trade secret ceases to qualify as such as a result of acts or omissions by Seller or its Affiliates in violation of this Section 7.1(c)). If the Seller is requested by any Governmental Authority or based on the advice of
counsel, is legally compelled to disclose any Business Confidential Information, the Seller or its Affiliate may disclose only the minimum amount of such Business Confidential Information as is required or legally compelled to be disclosed; provided,
however, that, prior to making any such disclosure, the Seller shall provide the Buyer (to the extent it is legally permissible to do so) with (a) written notice as promptly as reasonably practicable of such compulsion or request (and
including a copy of any written documentation or correspondence related thereto, if applicable) so that the Buyer or the Company may seek a protective order or other remedy and (b) reasonable assistance to oppose, or seek a protective order or
other limitations on, such disclosure at the Buyer’s sole cost and expense. Notwithstanding anything herein to the contrary, neither the Seller nor its Representatives shall be required to provide notice (except as set forth in clause (i) of
this sentence) or seek consent to disclose any Business Confidential Information in connection with (i) disclosures required by Law (including any filing required under the Securities Exchange Act of 1934 or the Securities Act of 1933), Order
or the New York Stock Exchange, or any other applicable stock exchange rules, in which case the party making such determination will (A) to the extent practical and permitted by applicable Law, notify the Buyer of such disclosure prior thereto,
and (B) if practicable under the circumstances, use commercially reasonable efforts to allow the Buyer reasonable time to comment on such disclosure, (ii) disclosures required by a routine audit by, or blanket request from, a regulatory or
Governmental Authority that do not, in each case, specifically target the Company or the Business Confidential Information, (iii) disclosures to Representatives of the Seller who need to know such information for purposes of advising Seller on
its rights and obligations under this Agreement, or in connection with Seller’s ordinary course financial reporting or tax return preparation and filing, provided that such Representatives are subject to customary confidentiality obligations
with respect thereto, and (iv) disclosures required by a Tax authority or Governmental Authority that are reasonably required for the purposes of the proper management of Tax affairs of the Seller (or its Affiliates) in its ordinary course of
business.
Section 7.2 Public Announcements. Each of the Buyer and the Seller shall issue an initial press release in the form previously approved by the other
party. Except for such initial press releases approved by the parties hereto, no party hereto will issue or cause the publication of any press release or other public announcement or public statement (including any filings with the
Securities and Exchange Commission) with respect to this Agreement or the Contemplated Transactions without the prior written consent of the other parties hereto; provided, however, that nothing herein will prohibit any party
from issuing or causing publication of any such press release, public announcement or public statement to the extent that such disclosure is required by Law (including any filing required under the Securities Exchange Act of 1934 or the
Securities Act of 1933), Order or the New York Stock Exchange, or any other applicable stock exchange rules, or by the request of any Governmental Authority, in which case the party making such determination will (a) to the extent practical
and permitted by applicable Law, notify the other parties of such issuance or publication prior thereto, and (b) if practicable under the circumstances, use commercially reasonable efforts to allow the other parties reasonable time to comment
on such release, announcement or statement in advance of its issuance or publication. No party shall be required to provide notice to the other or otherwise comply with this Section 7.2 to the extent any proposed release or
announcement is consistent with information that has previously been made public pursuant to an initial press release or subsequent press release issued in accordance with this Section 7.2.
Section 7.3 Further Assurances.
(a) Following the Closing, each of the parties hereto shall, and shall cause its respective Affiliates to, execute and deliver such documents and perform such further acts as may be reasonably required to
carry out the provisions hereof; provided, however, that no party shall be required to incur any additional out-of-pocket cost or expense or bear any other additional Liability or obligation in connection therewith beyond those
costs, expenses and Liabilities expressly imposed on such party otherwise by this Agreement.
(b) In the event that, following the Closing Date, the Buyer provides the Seller with written notice identifying any Intellectual Property owned by the Seller or any of its Subsidiaries both as of
immediately prior to the Closing and as of the date of such notice that, as of immediately prior to the Closing, was both used in and was necessary for the operation of the Business (other than any asset set forth on Schedule 5.18(b)
of the Seller and Company Disclosure Schedules or any asset provided under the Transition Services Agreement), the Seller shall promptly following receipt of such written notice grant to Buyer a nonexclusive, worldwide, royalty-free, fully
paid-up, perpetual, irrevocable, sublicensable (solely to the extent such Intellectual Property was sublicensed (whether written or otherwise) as part of the Business prior to the Closing) license to utilize and exploit such Intellectual
Property in the manner in which such Intellectual Property was used in the Business prior to the Closing.
Section 7.4 Termination of Affiliate Transactions. Effective as of the Closing, except as set forth on Schedule 7.4 hereto, all
Liabilities and receivables between the Company, on the one hand, and one or more of its Affiliates (including the Seller, the Excluded Subsidiary and the Excluded Lower-Tier Subsidiaries but not including the Company), on the other hand,
including any and intercompany accounts and all Contracts (other than any Transaction Document or Contracts set forth on Schedule 7.4 hereto) (such Contracts, other than any Transaction Document or Contracts set forth on Schedule
7.4 hereto, the “Affiliate Contracts”) between the Company, on the one hand, and one or more of its Affiliates (including the Seller, the Excluded Subsidiary and the Excluded Lower-Tier Subsidiaries (other than the
Company)), on the other hand, shall be terminated in full, without any party thereto having any continuing rights, obligations or Liability thereunder, and without further action required on part of, the Company, the Seller or any of their
respective Affiliates with respect thereto following the Closing. As promptly as practicable following the Closing Date, the Seller shall cause the Excluded Subsidiary to amend and/or modify the Excluded Subsidiary’s General Services
Administration Information Technology Multiple Award Schedule (Contract number: 47QTCA23D00E4 for Contract period September 19, 2023 to September 18, 2028) in order to remove any Company Products from such schedule, and shall submit a request
for such amendment or modification no later than five (5) Business Days following the Closing Date.
Section 7.5 Wrong Pockets; Mail.
(a) If, from time to time after the Closing Date:
(i) the Buyer or any of its Affiliates (including the Company) receives any payment from customers, suppliers or any third party that is properly payable to the Seller or any of its
Affiliates, the Person receiving such payment agrees to promptly remit (or cause to be promptly remitted) such funds to the Seller or such Affiliate that is entitled to such funds; or
(ii) the Seller or any of its Affiliates receives any payment from customers, suppliers or any third party that is properly payable to the Buyer or any of its Affiliates, including the
Company, the Person receiving such payment agrees to promptly remit (or cause to be promptly remitted) such funds to the Buyer, such Affiliate, or the Company, as applicable, that is entitled to such funds.
(b) The Seller, on the one hand, and the Buyer and the Company, on the other hand, authorizes the other, on and after the Closing Date to receive and open all mail and other communications received by
such party (to the extent reasonably necessary to determine its relevance to the Company or the Business, on the one hand, or the Retained Business, on the other hand) and to deal with the contents of such communications in good faith and in a
proper manner to the extent that such mail or communication relates to the Retained Business (if received by the Seller) or the Business or the Company (if received by the Buyer or the Company); provided that if such party determines
that such mail or communication do not relate thereto, then such party shall promptly deliver such mail or communication to the other party. The Seller, or the Buyer, as applicable, shall promptly deliver to the other any mail or other
communication received by such party after the Closing Date pertaining to: (i) if received by the Seller, the business or operations of the Company or the Business; or (ii) if received by the Buyer or the Company, the Retained Business.
Section 7.6 Facility Security Clearances. Prior to the date hereof, the Seller has provided, or caused to be provided to DCSA a notification of the
transactions contemplated by this Agreement pursuant to 32 C.F.R. § 117.8(c)(7)(i). From and after the date hereof, the Seller and the Buyer shall reasonably cooperate in responding to any inquiry or request from DCSA concerning the approval
of all U.S. government facility security clearances reasonably necessary to conduct the businesses of the Company and its Subsidiaries in all material respects as currently conducted as of the date hereof.
Section 7.7 Transitional License; Name of Sale Entities.
(a) The Buyer covenants and agrees to use commercially reasonable efforts to take all steps necessary to effectuate a change of the name for the Company to remove the use of the “PAR” name within 30 days
following the date upon which all active prime Government Contracts of the Company have been novated to the Buyer such that the Company no longer holds any active prime Government Contracts. The Buyer shall be solely responsible for any direct
or indirect costs or expenses resulting from such change in use of name, and any resulting notification or approval requirements. The Buyer shall, and shall cause the Company to, use its commercially reasonable efforts to novate any active
prime Government Contracts of the Company to the Buyer as promptly as practicable following August 1, 2024.
(b) Without limiting the Pre-Transaction Asset Transfer, the Buyer acknowledges and agrees that the Seller is not conveying ownership rights in or, except as expressly set forth in this Section 7.7,
granting the Buyer or any Affiliate of the Buyer any right or license to use any of the marks of the Seller or any of its Affiliates (including the name “PAR” or any mark incorporating the name “PAR” or confusingly similar thereto), or any
trade dress of the Seller or any Affiliate of the Seller, including trade dress associated with or including the “PAR” mark (collectively, the “PAR Marks”) and, after the Closing, except as set forth in the Transition Services Agreement
or in this Section 7.7(b), the Buyer shall not use, or permit any Affiliate of the Buyer to use, in any manner the PAR Marks, or any mark that is confusingly similar to the PAR Marks. Notwithstanding the foregoing, (i) the
Seller acknowledges that certain of the PAR Marks have been used prior to the Closing in connection with Contracts and Government Contract Bids of the Business and any invoices, letters or other documentation related thereto and that the use of
such PAR Marks in connection with such materials, including, without limitation, with respect to any Government Contract or Government Contract Bid (or Government Contract awarded pursuant thereto) or related invoice, letter, proposal, or other
documentation, shall not be deemed a breach of this Section 7.7, (ii) the Seller hereby consents to the transitional use of the PAR Marks by the Buyer and its Affiliates (x) in connection with use of the Company’s internet website
content existing immediately prior to Closing on all existing websites of the Company (solely as used in connection with the conduct of the Business immediately prior to Closing) to permit Buyer and its Affiliates to transition such internet
website content, or (y) solely to permit the Buyer and its Affiliates to sell or otherwise dispose of the inventory, packaging, marketing and promotional materials, letterhead, business cards, Internet website content and any other supplies or
materials bearing any PAR Marks or any marks confusingly similar thereto (collectively, “Materials”) in existence and in the possession or control of the Company as of the Closing, in each case, during the ninety (90)-day period
immediately following the Closing, or solely as set forth on Schedule 7.7 until the time period set forth therein (the “Transitional Period”); provided, that the Buyer shall use commercially reasonable efforts to
transition to its own proprietary marks and sell or otherwise dispose of all such Materials during the Transitional Period, and (iii) the Buyer may (x) at all times after the Closing, keep records and other historical or archived documents,
including email, containing or referencing the PAR Marks solely for non-public internal record or archival purposes or as otherwise reasonably required in connection with the ongoing operation of the Business in the ordinary course of business
(including, without limitation, the use of historical email messages) and (y) refer to this historical fact in the conduct of the Business (including at industry conferences) that the Business was previously conducted under the PAR Marks for a
reasonable period of time not to exceed three (3) years (provided, however, that, for the avoidance of doubt, the time limitation in this clause (y) shall not apply to any disclosure by the Buyer of the historical fact that the Business was
previously conducted under the PAR Marks and acquired from Seller to the extent permitted by Section 7.2 and such disclosure is not used in the conduct of the Business).
Section 7.8 Employee Obligations.
(a) For the period commencing on the Closing Date and continuing through the end of the term of the transitional services relating to employee benefits under the Transition Services Agreement (the “HR
Transition Services Term”), the Buyer shall, pursuant to the terms and conditions of the Transition Services Agreement, cause to be provided to each Business Employee who continues to be employed by the Company following the Closing Date
(the “Continuing Employees”) (i) base salary or base rate of pay that is not less than that received by the Continuing Employees immediately prior to the Closing Date, and (ii) employee benefits consistent with the terms of the
Transition Services Agreement. For the period commencing on the end of the HR Transition Services Term and continuing through the first anniversary of the Closing Date, the Buyer shall, or shall cause its Subsidiaries to, provide to each
Continuing Employee (x) base salary or base rate of pay that is not less than that received by the Continuing Employees immediately prior to the Closing Date, (y) annual cash incentive compensation opportunity that is not less favorable than
provided by the Buyer to similarly-situated employees of the Buyer, and (z) employee benefits that are not less favorable than the benefits provided by the Buyer to similarly-situated employees of the Buyer. For the avoidance of doubt, the
obligations of the Buyer set forth in Section 7.8(a)(x) shall not be applicable to any Continuing Employee who applies for, and accepts, an internal transfer to a different position with the Buyer or one of its Affiliates following the
Closing Date.
(b) For all purposes under the Benefit Plans of the Buyer, the Company or any of their Subsidiaries, the Buyer will use commercially reasonable efforts to cause each Continuing Employee to be credited with
his or her years of service with the Company and its Affiliates before the Closing Date, to the same extent as such Continuing Employee was entitled, before the Closing Date, under the corresponding Seller Benefit Plan or Company Benefit Plan
(as applicable), except (i) for purposes of benefit accrual under defined benefit plans, (ii) for any purpose where service credit for the applicable period is not provided to participants in the employee benefit plan of the Buyer generally or
is otherwise not permissible under Buyer’s Benefit Plan, and (iii) to the extent such credit would result in a duplication of accrual of benefits.
(c) Contingent upon the Closing and effective as of the Closing Date, the Seller shall take all such actions as are necessary to vest the Continuing Employees set forth on Schedule 7.8(c)
in all of their otherwise unvested equity and equity-based awards issued to them by the Seller relating to the equity of Seller as set forth on Schedule 7.8(c). With respect to each Continuing Employee who, as of immediately prior to
the Closing Date, is eligible to receive a 2024 incentive bonus, Buyer shall (or shall cause one of its Affiliates to), pay such Continuing Employee the amount of such 2024 incentive bonus for the period prior to the Closing no later than such
time or times as such 2024 incentive bonus would have otherwise been paid.
(d) Contingent upon the Closing and effective as of the Closing Date, the Seller shall take all such actions as are necessary to vest all Continuing Employees in their account balances under the Seller’s
401(k) Plan. With respect to each Continuing Employee who, as of immediately prior to the Closing Date, participates under the PAR Technology Corporation Retirement Plan (the “Seller’s 401(k) Plan”), the Buyer shall (or shall cause on
of its Affiliates to), effective no later than the end of the term of the Transition Services Agreement, allow such Continuing Employee to participate under a 401(k) plan maintained by the Buyer or one of its Affiliates (the “Buyer’s 401(k)
Plan”), with no waiting period (other than any waiting period that applies under the Seller’s 401(k) Plan). The Seller and the Buyer shall take actions as are reasonably necessary to effectuate a trustee-to-trustee transfer of such
Continuing Employees’ account balances (and underlying assets equal to such account balances, including, if applicable, in the form of notes associated with plan loans) in accordance with the terms of Section 11.4 of the Seller’s 401(k) Plan
from the Seller’s 401(k) Plan to the Buyer’s 401(k) Plan.
(e) Except as provided for in the Transition Services Agreement, the Continuing Employees shall cease to accrue further benefits and shall cease to be active participants in any Seller Benefit Plan and the
parties shall take all necessary action to effectuate the foregoing, including: (i) adopting Seller resolutions and Company resolutions approving the termination of participation in Seller Benefit Plans, effective as of the Closing Date (other
than with respect to those Seller Benefit Plans addressed in the Transition Services Agreement, which such termination shall be effective as set forth in the Transition Services Agreement), and (ii) notifying third-party service providers of
the Company’s termination of participation in Seller Benefit Plans. Furthermore, for the avoidance of doubt, expenses and benefits with respect to all medical, life, insurance, disability and other welfare plans that relate to claims incurred
by any Continuing Employee (or any dependent or beneficiary thereof) prior to the Closing Date under any such Seller Benefit Plan shall be the responsibility of the Seller. For this purpose, a claim is deemed incurred by a Continuing Employee
(i) in the case of medical, prescription drug, dental or vision benefits, when the services or products that are the subject to the claim are performed or provided, (ii) in the case of life insurance, when the relevant death occurs, (iii) in
the case of long-term disability benefits (including any related health benefits), when the relevant disability occurs, (iv) in the case of workers’ compensation benefits, when the event giving rise to the benefits occurs, and (v) otherwise, at
the time the Continuing Employee or covered dependent becomes entitled to payment of a benefit (assuming that all procedural requirements are satisfied and claims applications are properly and timely completed and submitted). To the extent any
benefits under any Seller Benefit Plan are provided to Continuing Employees on or after the Closing Date via the Transition Services Agreement, all associated costs shall be borne by the Buyer in accordance with the terms and conditions of the
Transition Services Agreement.
(f) Prior to the date hereof, the Seller and/or the Company, as applicable, has taken, or has caused to be taken, all required actions implementing the following with respect to, and under the PAR
Technology Corporation Supplemental Executive Retirement and Savings Plan (the “Seller Deferred Compensation Plan”): (i) adopting Company resolutions approving termination of participation of the Company as a participating employer
under the Seller Deferred Compensation Plan, effective as of a date within thirty (30) days prior to the date hereof; and (ii) amendment of the adoption agreement of the Seller Deferred Compensation Plan to reflect that the Company is no longer
a participating employer therein, effective as of a date within thirty (30) days prior to the date hereof. Prior to or as reasonably practicable following the date hereof, the Company has fully distributed or will fully distribute (as
applicable) the vested accounts of the two (2) Business Employees and three (3) former employees of the Company set forth on Schedule 7.8(f)(i) hereto in the amounts set forth on Schedule 7.8(f)(ii) hereto,
according to the terms of the Seller Deferred Compensation Plan. Prior to the date hereof, the Seller has provided copies of the documents implementing the requirements of this Section 7.8(f) to the Buyer for Buyer’s review and
comment, and the Company has in good faith considered the reasonable comments of the Buyer.
(g) Nothing contained herein, express or implied, is intended to confer upon any individual any right as a third-party beneficiary of this Agreement. No provision of this Agreement shall be construed as
a guarantee of continued employment of any employee of the Company, including any Service Providers or the Continuing Employees, and this Agreement shall not be construed so as to prohibit the Buyer or any of its Affiliates (including the
Company) from having the right following the Closing to terminate the employment of any employee or other Service Provider of the Company, including the Continuing Employees, provided that any such termination is effected in accordance with
applicable Law. The parties agree that any such post-Closing termination shall be solely a Liability of the Buyer and its Affiliates, including the Company. Notwithstanding any other provision in this Agreement to the contrary, nothing in
this Section 7.8 shall be deemed or construed to be an amendment or other modification of any Seller Benefit Plan, Company Benefit Plan or employee benefit plan of the Buyer or any Affiliate of the Buyer.
Section 7.9 Directors’ and Officers’ Indemnification.
(a) The Buyer agrees that all rights to indemnification or exculpation now existing in favor of the directors, officers, employees and agents of the Company, as provided in the Company’s certificate of
incorporation and bylaws, shall survive the Closing and shall continue in full force and effect for a period of not less than six (6) years and that the Company will perform and discharge the obligations to provide such indemnity and
exculpation after the Closing in accordance with the terms thereof; provided, however, that all rights to indemnification and exculpation in respect of any Action arising out of or relating to matters existing or occurring at or
prior to the Closing Date and asserted or made within such six (6)-year period shall continue until the final disposition of such Action. From and after the Closing until at least six (6) years after the Closing, the Buyer shall not, and shall
cause each of its Subsidiaries and Affiliates (including the Company) not to, amend, repeal or otherwise modify the indemnification provisions of the Company’s certificate of incorporation or bylaws as in effect at the Closing in any manner
that would adversely affect the rights thereunder of individuals who at the Closing were directors, officers, employees, or agents of the Company, unless such amendment or modification is required by applicable Law.
(b) The provisions of this Section 7.9 shall survive the consummation of the Closing and continue for the periods specified herein. This Section 7.9 is intended to benefit the directors,
officers, employees and agents of the Company and any other Person or entity (and their respective heirs, successors and assigns) referenced in this Section 7.9, each of whom may enforce the provisions of this Section 7.9
(whether or not parties to this Agreement). Each of the Persons referenced in the immediately preceding sentence are intended to be third party beneficiaries of this Section 7.9.
Section 7.10 Insurance. On or prior to the Closing, the Company, in reasonable consultation with the Buyer (which shall include the Buyer’s right to
review and comment on the policy documentation), shall purchase “tail” coverage for errors and omissions liability and cyber liability insurance for a period of three (3) years following the Closing Date for the benefit of the Company and
with terms and conditions, coverage, and limits reasonably satisfactory to the Buyer with respect to acts, omissions, facts, events or other matters occurring prior to the Closing Date (the “E&O/Cyber Tail Policy”). Neither the
Buyer, the Seller, nor any Excluded Subsidiary or Excluded Lower-Tier Subsidiaries shall cancel the E&O/Cyber Tail Policy. The fees, costs and expenses incurred in connection with the E&O/Cyber Tail Policy shall be borne by the
Buyer. The Buyer shall pay, or cause to be paid, when due (i) all premiums and other costs and expenses associated with obtaining the E&O/Cyber Tail Policy and (ii) all premiums and other costs and expenses associated with obtaining the
D&O Tail Policy (provided, for the avoidance of doubt, that such premiums and other costs and expenses shall not constitute Transaction Expenses other than the first $125,000 payable in respect of the D&O Tail Policy).
Section 7.11 Restrictive Covenants.
(a) Acknowledgments. As the sole owner of the Company, the Seller has special knowledge concerning the Business, and as a material inducement to the Buyer entering into this Agreement, the Seller
has agreed to the terms in this Section 7.11 to preserve the value of the Business being acquired by the Buyer, including, without limitation, the agreement to refrain from competing with the Business for the restricted period as set
forth in Section 7.11(b) immediately below.
(b) Prohibited Activities. For the period commencing with Closing and ending on the fifth (5th) anniversary of the
Closing Date, the Seller shall not (and shall cause its Affiliates not to), for any reason whatsoever, directly or indirectly, for itself, or on behalf of or in conjunction with any other Person (whether as a stockholder, member, owner,
partner, joint venturer, or otherwise):
(i) (A) engage in any business that provides or performs services, solutions or products that are the same as or substantially similar to, or competitive with, the Business (or any
portion thereof) in any geographic area in which the Company conducts the Business or is in active planning to conduct the Business as of immediately prior to the Closing (the “Restricted Territory”); or (B) own, manage, operate,
control, maintain any equity interest in, or render services that are the same as or substantially similar to, or competitive with, the Business prior to Closing to, any business that provides or performs services, solutions or products that
are the same as or substantially similar to, or competitive with, the Business (or any portion thereof) in the Restricted Territory; provided, however, that (x) neither Seller nor any of its Affiliates shall be precluded from
(1) the ownership of securities of corporations that are listed on a national securities exchange or traded in the national over-the-counter market in an amount that shall not exceed three percent (3%) of the outstanding shares of any such
corporation or (2) engaging in any acquisition of, and, following such acquisition, continued ownership of, any business or Person for whom the portion of their business that is competitive with the Business (such competitive portion, the “Competitive
Business”) accounts for less than 10% of the consolidated annual revenues of the acquired business or acquired Person(s), taken as a whole, globally in the year prior to such acquisition so long as the Seller or such Affiliate, within
twelve (12) months after the consummation of such acquisition, discontinues or divests the Competitive Business entirely; and (y) any Person that, directly or indirectly, acquires all or a majority of the assets or voting securities of the
Seller (and such Person’s Affiliates (other than Seller and its Affiliates immediately prior to such acquisition)) shall not be subject to the restrictions under this Section 7.11;
(ii) employ or engage, solicit or entice away from or out of the employ or engagement of the Company, the Buyer or the Buyer’s Affiliates (x) any Continuing Employee or (y) any
independent contractor set forth on Schedule 7.11(b)(ii) of the Seller and Company Disclosure Schedules (each, a “Key Contractor”); provided, that the foregoing shall not prohibit the Seller or any of its
Affiliates from (i) conducting a general solicitation, search or advertisement for employees, independent contractors or consultants not specifically targeted at such employees, independent contractors or consultants, (ii) hiring or soliciting
any employee (other than Back-Office Employees who are affirmatively terminated by the Company, the Buyer or their respective Affiliates) or Key Contractor whose employment or engagement with the Company, the Buyer or their respective
Affiliates was terminated for any reason on or after the Closing Date for a period of at least six (6) months following the date of such termination of employment or engagement, (iii) hiring or soliciting any independent contractor or
consultant of the Company, other than any Key Contractor, or (iv) hiring any individual set forth on Schedule 7.11(b)(ii) of the Seller and Company Disclosure Schedules (the “Back-Office Employees”) who was
affirmatively terminated by the Company, the Buyer or their respective Affiliates;
(iii) sell products, solutions or services that are the same as or similar to the Company Products or Company Services to, or call upon for the purpose of soliciting or selling such
products, solutions or services similar to the Company Products or Company Services to, any Person who is at that time, or has been within one (1) year prior to the Closing Date, a customer or prospective customer of the Company or the
Business; or
(iv) contact, call upon, communicate with or attempt to communicate with any Person who is a business relation of the Buyer or any of its Affiliates (including the Company after the
Closing) with the intent to induce or intentionally attempting to induce such Person (A) to divert their business or services from the Buyer or any of its Affiliates (including the Company after the Closing), (B) to cease doing business with
the Buyer or any of its Affiliates (including the Company after the Closing), or (C) in any way interfere with the relationship between any such Person and the Buyer or any of its Affiliates (including the Company after the Closing), in each
case, with respect of the Business; or
(v) permit any corporate officer or director of the Seller or its Subsidiaries to disparage the Company or the Business, provided that this clause (v) shall not be violated by (i)
exercising protected legal rights to the extent that such rights cannot be waived by agreement, (ii) truthful statements in response to legal, judicial, or regulatory process, required governmental testimony or filings, or administrative or
arbitral proceedings (including, without limitation, depositions in connection with such proceedings) with apparent or actual jurisdiction to order such Person to disclose or make accessible such information or (iii) testifying in any
proceeding or filing to enforce the terms of this Agreement or any transactions related thereto.
Nothing in this Section 7.11 will in any way restrict or impede the Seller or any of its Affiliates from complying with any applicable Law or regulation or a valid Order of any tribunal or other
Governmental Authority or any official or agency thereof, provided that such compliance does not exceed that required by the Law, regulation or Order.
(c) Losses. Because of the difficulty of measuring economic losses to the Buyer and its Affiliates as a result of a breach of the foregoing covenants in this Section 7.11, and because of
the immediate and irreparable damage that could be caused to the Buyer and its Affiliates as a result of a breach of the foregoing covenants in this Section 7.11 for which it would have no other adequate remedy, the Seller agrees that
the Buyer may enforce the foregoing covenants in this Section 7.11 in the event of breach or threatened breach by the Seller or any of its Affiliates, in addition to, but not in lieu of, any other available remedies (including, without
limitation, monetary Losses), by obtaining injunctions, restraining orders or other equitable remedies, without necessity of posting an injunction bond and without the necessity of showing actual monetary damages or showing that monetary
damages are inadequate.
(d) Reasonable Restraint. It is agreed by the parties hereto that the foregoing covenants in this Section 7.11 impose a reasonable restraint on the Seller and its Affiliates in light of
the activities and business of the Buyer, the Company, and the Buyer’s Affiliates on the date of the execution of this Agreement.
(e) Independent Covenant. Each of the covenants in this Section 7.11 shall be construed as an agreement independent of any other provision in this Agreement, and the existence of any claim
or cause of action of the Seller against the Buyer, whether predicated on this Agreement or otherwise, shall not constitute a defense to the enforcement by the Buyer of any such covenant. It is understood by the parties hereto that the
covenants contained in this Section 7.11 are essential elements of this Agreement and that, but for the agreement of the Seller to comply with such covenants, the Buyer would not have agreed to enter into this Agreement. The Seller and
the Buyer have independently consulted with their respective counsel and have been advised concerning the reasonableness and propriety of such covenants with specific regard to the nature of the business conducted by the Buyer. The covenants
in this Section 7.11 are severable and separate, and the unenforceability of any specific covenant shall not affect the provisions of any other covenant. Moreover, in the event that any court of competent jurisdiction shall determine
that the scope, time or territorial restrictions set forth herein are unreasonable, then it is the intention of the parties hereto that such restrictions be enforced to the fullest extent which the court deems reasonable, and the Agreement
shall thereby be reformed. The covenants contained in this Section 7.11 shall not be affected by any breach of any other provision of this Agreement by any party hereto and shall have no effect if the transactions contemplated by this
Agreement are not consummated.
Section 7.12 DDTC. Each of the Buyer and the Seller shall cooperate and use commercially reasonable efforts to promptly make any filings required to
be made to the Directorate of Defense Trade Controls (“DDTC”) of the U.S. State Department under the International Traffic in Arms Regulations (“ITAR”), including any filing required to be made to DDTC under 22 C.F.R. § 122.4(a)
of the ITAR, which shall be made no later than five (5) days after the Closing.
ARTICLE VIII
TAX MATTERS
Section 8.1 Tax Audits and Contests; Cooperation.
(a) The Buyer shall notify the Seller within fifteen (15) days of its receipt of any notice of any Tax Contest with respect to (i) the Company for any Pre-Closing Tax Period and (ii) for which the Seller
otherwise may be liable hereunder or under applicable Law (a “Seller Tax Contest”). The Seller shall control the conduct of any Seller Tax Contest; provided that, for any Seller Tax Contest that could result in the Company or
the Buyer (or any Affiliates thereof) being liable for any Tax following the Closing, (i) Seller shall keep the Buyer reasonably and timely informed of the status of such Seller Tax Contest, and (ii) with respect to any Seller Tax Contest that
is primarily related to Tax liabilities of Buyer or would reasonably be expected to result in material Tax liabilities of Buyer, in each case provided that such Tax liabilities are not otherwise borne by Seller under this Agreement, the Seller
shall not settle any such Seller Tax Contest without Buyer’s prior written consent (which consent shall not be unreasonably withheld, conditioned, or delayed). The Buyer shall control all Tax Contests involving the Company, other than Seller
Tax Contests.
(b) The Seller and the Buyer shall furnish or cause to be furnished to each other, upon request, as promptly as practicable, such information (including access to books and records) and assistance relating
to the Company and its Subsidiaries as is reasonably requested for the filing of any Tax Returns and the preparation, prosecution, defense or conduct of any Tax Contest, provided that the Seller shall not be required to disclose to the Buyer
any Combined Tax Returns or related work papers. The Seller and the Buyer shall use commercially reasonable efforts to cooperate with each other in the conduct of any Tax Contest or other proceeding involving or otherwise relating to the
Company or its Subsidiaries (or their income or assets) with respect to any Tax and each shall execute and deliver such powers of attorney and other documents as are necessary to carry out the intent of this Section 8.1(b). Any information obtained under this Section 8.1(b) shall be kept confidential, except as may be otherwise necessary in connection
with the filing of Tax Returns or in the conduct of a Tax Contest.
(c) Each of the Buyer and the Company shall use its commercially reasonable efforts to properly retain and maintain the Tax and accounting records of the Company and its Subsidiaries that relate to
Pre-Closing Tax Periods for seven years and shall allow the Seller and its agents and Representatives, at times and dates reasonably and mutually acceptable to the parties, to from time to time inspect and review such records as are reasonably
necessary and appropriate; provided, however, that in all cases, such activities are to be conducted by the Seller and the Buyer during normal business hours and at their sole expense; provided, further, that no
party shall be required to provide assistance at times or in amounts that would interfere unreasonably with the business and operations of such party, provided, further, that the Seller shall not be required to disclose to the Buyer any
Combined Tax Returns or related work papers but shall, upon reasonable request, provide Buyer with either (a) a pro forma tax return reflecting solely items attributable to the Company and its Subsidiaries or (b) an excerpt from Seller’s
Combined Tax Return reflecting solely items attributable to the Company and its Subsidiaries. Any information obtained under this Section 8.1(c) shall be kept confidential, except as may be otherwise necessary in connection
with the filing of Tax Returns or in the conduct of a Tax Contest.
Section 8.2 Preparation of Tax Returns.
(a) Except as provided in Section 8.2(b), the Buyer shall prepare (or cause to be prepared) at its own expense, and timely file (or cause to be timely filed) all Tax Returns of the Company or any
of its Subsidiaries required to be filed with any Governmental Authority after the Closing Date, provided that any such Tax Returns with respect to periods ending on or before the Closing Date and Straddle Periods shall be prepared consistent
with past practice, except as required by applicable law.
(b) The Seller shall prepare, at its own expense, shall timely file, and shall pay all Liabilities for Taxes (without duplication for any amounts taken into account under Section 2.3 or otherwise
in this Agreement) reflected on any state, local or federal combined, consolidated or unitary Tax Return that includes the Seller or any Affiliate (other than the Company), on the one hand, and the Company or any of its Subsidiaries, on the
other hand (a “Combined Tax Return”), and any state Tax Return of the Company and its Subsidiaries for a Pre-Closing Tax Period or Straddle Period that is not filed on a combined, consolidated, or unitary basis. The Seller shall prepare
all such Tax Returns in a manner consistent with past practice, except as otherwise required by applicable Law.
Section 8.3 Tax Sharing Agreements, Etc. The Seller shall cause all Tax sharing or indemnification agreements or other intercompany transactions
(other than agreements entered into in the ordinary course of business the primary purpose of which is not the allocation or sharing of Taxes) between or among the Seller or any of its Subsidiaries (other than the Company), on the one hand,
and the Company, on the other hand, to terminate on or before the Closing Date. For the avoidance of doubt, any Taxes arising as a result of the termination of any arrangement or agreement pursuant to this Section 8.3 shall be deemed
a Pre-Closing Tax and shall be borne by the Seller hereunder.
Section 8.4 Transfer Taxes. The Buyer and the Seller shall each be responsible for fifty percent of all of the sales, use, value added, transfer,
stamp, registration, documentary, excise, real property transfer or gains or similar Taxes (“Transfer Taxes”) incurred as a result of the Contemplated Transactions. The party customarily responsible under applicable Law shall file all
necessary Tax Returns with respect to Transfer Taxes and the non-preparing party shall cooperate in duly and properly preparing, executing, and filing any certificates or other documents required to be filed in connection with such Transfer
Taxes.
Section 8.5 W-9. The Seller and the Company shall each deliver to the Buyer at the Closing a duly executed IRS Form W-9; provided, that the
Buyer’s only remedy for the failure to provide such certificates will be to withhold from the payments to be made pursuant to this Agreement any required withholding Tax.
Section 8.6 Transaction Tax Deductions. Any and all income Tax deductions related to (A) any bonuses paid on or prior to the Closing Date in
connection with the transactions contemplated hereby, (B) expenses with respect to Indebtedness being paid in connection with the Closing, and (C) all Transaction Expenses and payments that are deductible for Tax purposes, and other fees and
expenses of legal counsel, accountants, investment bankers (such deductions described in clauses (A) through (C), the “Transaction Tax Deductions”) shall be claimed in a Pre-Closing Tax Period (or, if any Transaction Tax Deductions are
reportable in a Straddle Period, will be deemed to have accrued in the pre-Closing portion of such Straddle Period), to the extent permitted by applicable Law at a “more likely than not” or higher level of support, and no party hereto shall
apply the “next day rule” under Treasury Regulation Section 1.1502-76(b)(1)(ii)(B) to such deductions. The election under Revenue Procedure 2011-29, 2011-18 I.R.B. 746, to apply the 70% safe harbor to any “success based fee” as defined in
Treasury Regulation Section 1.263(a)-5(f) incurred in connection with the transactions contemplated by this Agreement shall be made for U.S. federal income tax purposes (and any similar election shall be made for non-U.S., state, and local
income tax purposes where applicable). For the avoidance of doubt, the parties agree that 70% of any success-based fees are deductible for U.S. federal income tax purposes pursuant to Revenue Procedure 2011-29, 2011-18 IRB and are included
in the calculation of Transaction Tax Deductions.
Section 8.7 Straddle Period. (i) Except as provided in clause (ii) of this Section 8.7, any Taxes (or refunds of Taxes) for a Straddle
Period with respect to the Company shall be apportioned between the portion of the Straddle Period ending on the Closing Date and the portion of the Straddle Period commencing on the day immediately following the Closing Date based on the
actual operations of the Company by a closing of the books of the Company, as if the Closing Date were the end of a taxable year, and each such portion of such Straddle Period shall be deemed to be a taxable period (whether or not it is in
fact a taxable period); or (ii) in the case of any Taxes (or refunds of Taxes) imposed on a periodic basis (e.g., any real property, personal property or similar ad valorem Taxes) that are payable for a Straddle Period, the portion of such
Tax which relates to the portion of such Straddle Period ending on the Closing Date shall be deemed to be the amount of such Tax for the entire Straddle Period multiplied by a fraction, the numerator of which is the number of days in the
Straddle Period ending on (and including) the Closing Date and the denominator of which is the number of days in the entire Straddle Period, provided that any increase in Taxes described in this clause (ii) that is attributable to the
transactions contemplated by this Agreement shall be apportioned to the period commencing after the Closing Date.
Section 8.8 Post-Closing Actions. Without obtaining the prior written consent of the Seller, the Buyer shall not, and shall not cause or permit the
Company or any of the Buyer’s Affiliates to, (i) take any action on the Closing Date after the closing other than in the ordinary course of business or (ii) make or change any Tax election (including any entity classification election
pursuant to Treasury Regulations Section 301.7701-3) with an effective date before the Closing Date, file or amend any Tax Return of the Company for a taxable period ending on or before the Closing Date, initiate any voluntary disclosure with
respect to Taxes of the Company for any taxable period ending on or before the Closing Date, or agree to extend or waive any statute of limitations for any taxable period ending on or before the Closing Date, in each case, if such action
would result in an increase in a Tax liability or reduction of any Tax asset of the Seller, in each case except as required by applicable Law.
Section 8.9 Section 338(h)(10) Election.
(a) The Seller and the Buyer agree to make a timely, joint election under Section 338(h)(10) of the Code (and any corresponding election under state or local Law to the extent available) (each, a “Section
338(h)(10) Election”) with respect to the Buyer’s purchase of the shares of the Company and to take any action as is necessary to effectuate the Section 338(h)(10) Elections. On or prior to the Closing Date, the Buyer shall deliver to
the Seller, for execution by the Seller on the Closing Date, Internal Revenue Service Forms 8023, and any similar forms required by state or local Law (collectively, the “Forms”) that are necessary to make the Section 338(h)(10)
Election. The Forms shall be prepared in accordance with Section 338 of the Code and any applicable Treasury Regulations (or, if applicable, comparable provisions of state and local income Tax Law). The Forms shall be final, conclusive and
binding on the Buyer and the Seller. Neither the Seller nor the Buyer shall, or shall permit any of their Affiliates to, take any action to modify any of the Forms or reports (including any corrections, amendments, or supplements thereto) that
are required for the making of the Section 338(h)(10) Election after its execution or to modify or revoke the Section 338(h)(10) Election following the filing of the Forms without the prior written consent of the other party. The Buyer will be
responsible for filing Form 8023. Both the Buyer and the Seller shall include IRS Forms 8023 and 8883 on their applicable Tax Returns reflecting the Section 338(h)(10) Election.
(b) In the event that any of the Forms is disputed by any Governmental Authority, the party receiving notice of such dispute shall promptly notify and consult with the other party hereto concerning
resolution of such dispute.
(c) The Seller and its Affiliates shall include all items of income, gain, loss, deduction and credit resulting from the Section 338(h)(10) Elections on their federal income Tax Returns and on all other
Tax Returns to the extent required by applicable Law and, for the avoidance of doubt, shall be solely responsible for any Taxes relating thereto.
(d) Within sixty (60) days after the completion of the Closing Statement (as finally determined), the Buyer shall deliver to the Seller a schedule (the “Section 338(h)(10) Allocation Schedule”)
allocating the ADSP (as such term is defined in Treasury Regulation Section 1.338-4) among the assets of the Company. If, within fifteen (15) days following delivery of the Section 338(h)(10) Allocation Schedule, the Seller does not notify the
Buyer in writing of its disagreement with the Section 338(h)(10) Allocation Schedule, the Section 338(h)(10) Allocation Schedule shall be final and binding. If, within such fifteen (15)-day period, the Seller notifies the Buyer in writing of
any disagreement with the Section 338(h)(10) Allocation Schedule, the Seller and the Buyer will work in good faith to resolve any dispute within twenty (20) days after the Seller notifies the Buyer in writing of any disagreement with the
proposed Section 338(h)(10) Allocation Schedule. If the Seller and the Buyer do not reach an agreement within such twenty (20)-day period, then the Seller and the Buyer shall resolve such dispute in a manner consistent with the dispute
resolution procedures set forth in Section 2.4(b), mutatis mutandis, provided, that in such event, the parties shall each pay one-half of the fees and expenses of the Accounting Firm. The Seller and the Buyer each agree that neither it
nor any of its Affiliates shall (i) file any Tax Returns in a manner that is inconsistent with the Section 338(h)(10) Allocation Schedule, or (ii) take, or fail to take, any action to the extent such action or failure to act, as the case may
be, is inconsistent with or would otherwise prejudice any Section 338(h)(10) Elections.
Section 8.10 Pre-Transaction Asset Distribution. Prior to consummating the Pre-Transaction Asset Distribution, the Company adopted a “plan of
liquidation” (within the meaning of Treasury Regulations Section 1.332-2) providing for the liquidation of the Company through the transactions to be completed in the Pre-Transaction Asset Distribution together with the Section 338(h)(10)
Election.
ARTICLE IX
INDEMNIFICATION
Section 9.1 Survival.
(a) The representations and warranties of the Company, the Seller, and the Buyer contained in this Agreement and any certificate or instrument delivered pursuant to this Agreement in respect thereof and
the covenants of the Company, the Seller, and the Buyer contained in this Agreement to the extent requiring performance at or prior to the Closing, in each case, shall terminate at the Closing, except in the case of Fraud.
(b) The respective covenants and agreements of the Company, the Seller, and the Buyer contained in this Agreement to the extent requiring performance after the Closing shall survive the Closing and be
enforceable until such covenant or agreement has been fully performed in accordance with the terms thereof; provided, however, that the obligations with respect to the matter described in Schedule 9.2(c) of the Seller
and Company Disclosure Schedules shall survive in the manner described in Schedule 9.2(c) of the Seller and Company Disclosure Schedules.
(c) None of the Company, Seller, or Buyer shall have any Liability with respect to any covenants or agreements unless notice of an actual or threatened claim, or of discovery of any facts or circumstances
that the Company, Seller, or the Buyer, as the case may be, reasonably believes may result in a claim, hereunder is given to the other applicable parties prior to the expiration of the survival period, if any, for such covenant or agreement, in
which case such covenant or agreement shall survive as to such claim until such claim has been finally resolved, without the requirement of commencing any Action in order to extend such survival period or preserve such claim.
(d) Notwithstanding anything to the contrary contained herein, the survival limitations contained in this Article IX shall not apply to or limit Buyer’s rights to bring claims against the insurer
under the R&W Insurance Policy.
Section 9.2 Indemnification by Seller. Subject in all respects to this Article IX, from and after the Closing, the Seller shall defend,
indemnify, and hold harmless the Buyer and its Affiliates (including, after the Closing, the Company) and the respective Representatives, successors and assigns of each of the foregoing (the “Buyer Indemnified Parties”) from and
against, and shall compensate and reimburse each of the foregoing for, any and all losses, damages, liabilities, deficiencies, claims, interest, awards, judgments, Taxes, penalties, costs and expenses (including reasonable attorneys’ fees,
costs and other out-of-pocket expenses incurred in investigating, preparing or defending the foregoing) (hereinafter collectively, “Losses”), asserted against, incurred, sustained or suffered by any of the foregoing as a result of or
arising out of, or relating to (whether or not involving a Third Party Claim):
(a) any breach of any covenant or agreement by Seller or any of its Affiliates contained in this Agreement to the extent requiring performance after the Closing;
(b) any Excluded Liability; or
(c) the matter described in Schedule 9.2(c) of the Seller and Company Disclosure Schedules and subject to the additional terms and limitations set forth therein.
Section 9.3 Indemnification by Buyer. Subject in all respects to this Article IX, from and after the Closing, the Buyer shall defend,
indemnify, and hold harmless the Seller and its Affiliates and the respective Representatives, successors and assigns of each of the foregoing (“Seller Indemnified Parties” and, together with the Buyer Indemnified Parties, the “Indemnified
Parties”), from and against, and shall compensate and reimburse each of the foregoing for, any and all Losses asserted against, incurred, sustained or suffered by any of the foregoing as a result of or arising out of, or relating to
(whether or not involving a Third Party Claim) any breach of any covenant or agreement by the Buyer or any of its Affiliates (including, after the Closing, the Company) contained in this Agreement to the extent such covenant or agreement by
its terms requires performance after the Closing.
Section 9.4 Limitations.
(a) In no event shall the Seller’s aggregate Liability pursuant to Section 9.2(b) (x) exceed an aggregate amount equal to the Purchase Price (such amount the “Cap”); provided, however,
that the Cap shall not apply to Liability for claims for, arising from, or based on Fraud (which shall not be limited) and (y) arising from or in connection with the item set forth on Schedule 9.4(a) exceed $161,000
(except for claims for, arising from, or based on Fraud, which shall not be limited).
(b) Payments by an Indemnifying Party pursuant to this Article IX in respect of any Loss shall be limited to the amount of any Liability or damage that remains after deducting therefrom any
insurance proceeds or any other indemnity, reimbursement or contribution actually received by the Indemnified Party in respect of any such claim pursuant to recovery under the R&W Insurance Policy or any other insurance policy or other
third party source of recovery, in each case, calculated net of any increase in or retroactive premiums and reasonable and documented out-of-pocket fees and expenses incurred to obtain such proceeds, indemnity, reimbursement or contribution
amounts, (collectively, the “Net Proceeds”). The Indemnified Party shall, to the extent any such proceeds, payments or reimbursements are actually received after such Losses are recovered from the Indemnifying Party, promptly repay the
amount of such Losses (not to exceed the amount of the Net Proceeds with respect to such proceeds, payments or reimbursements actually received with respect to such Losses) to the Indemnifying Party.
(c) The Buyer Indemnified Parties shall not be entitled to indemnification under this Article IX with respect to any amount resulting in Losses to the extent that such amount was already expressly
reflected in the calculation of the Estimated Purchase Price (as adjusted by the purchase price adjustment pursuant to Section 2.4, if any), and the applicable adjustment or payment is actually paid by or on behalf of the Seller to
Buyer or actually reduces the Purchase Price.
(d) No Indemnified Party shall be entitled to recover from the Indemnifying Parties (i) more than once in respect of the same Loss (notwithstanding that such Loss may result from breaches of multiple
provisions of this Agreement or of multiple Transaction Documents) or (ii) any punitive damages, which are expressly waived by the parties hereto, except to the extent that any such damages or Losses are actually paid to a third party.
(e) Each Indemnified Party shall use commercially reasonable efforts to mitigate any indemnifiable Loss upon becoming aware of any event or circumstance that would be reasonably expected to, or does, give
rise thereto to the extent required by applicable Law.
Section 9.5 Procedures
(a) In the event of the assertion or commencement by any Person of any claim, demand, or Action against any Indemnified Party with respect to which any Indemnified Party may be entitled to indemnification
pursuant to this Article IX (a “Third Party Claim”), the Indemnified Party shall deliver notice to the Indemnifying Party (a “Claim Notice”) with reasonable promptness after receipt by such Indemnified Party of notice of
such Third Party Claim, and shall provide the Indemnifying Party with such information with respect thereto as the Indemnifying Party may reasonably request; provided, however, that any failure on the part of the Indemnified
Party to deliver a Claim Notice to the Indemnifying Party in a reasonably prompt manner pursuant to this clause (a) shall not limit any of the obligations of the Indemnifying Party, or any of the rights of any Indemnified Party, under this Article
IX (except to the extent such failure materially adversely prejudices the defense of such Third Party Claim). The Indemnifying Party shall have the right, at its election, to proceed with the defense (including settlement or compromise)
of such Third Party Claim on its own with counsel selected by the Indemnifying Party and reasonably acceptable to the Indemnified Party; provided, that the Indemnifying Party confirms in writing to the Indemnified Party that, as between
the Indemnifying Party and the Indemnified Party, the Indemnifying Party shall be obligated to satisfy and discharge any Losses arising from such Third Party Claim solely to the extent such Losses are actually indemnifiable hereunder and
subject to the limitations herein; provided, further, that the Indemnifying Party shall not be entitled to control, and the Indemnified Party shall be entitled to have control over, the defense (including settlement or compromise) of
any Third Party Claim if: (i) the Third Party Claim involves any material customer, vendor or other business relationship of the Indemnified Party or any Government Contract or Government Contract Bid, (ii) the Third Party Claim involves
criminal or quasi-criminal allegations, or could reasonably be expected to result in suspension or debarment of the Indemnified Party or any of its Affiliates, (iii) the Third Party Claim includes a claim for injunctive or other non-monetary
relief, (iv) the R&W Insurance Policy provider assumes the defense of such Third Party Claim pursuant to, and in accordance with, the R&W Insurance Policy, (v) the Indemnifying Party fails to use diligent efforts in the defense of a
claim following notice to the Indemnifying Party reasonably describing such failure and a twenty (20) day opportunity to cure any such failure, (vi) there exists a material conflict of interest between the Indemnified Party and the Indemnifying
Party in the conduct of such defense, or (vii) there are material defenses available to the Indemnified Party that are not available to the Indemnifying Party. The Indemnifying Party shall not settle, compromise or discharge any Third Party
Claim without the Indemnified Party’s prior written consent (which consent shall not be unreasonably withheld, conditioned or delayed), provided, that the Indemnified Party shall consent to the settlement, compromise or discharge of a Third
Party Claim that the Indemnifying Party may recommend if such settlement, compromise or discharge (x) involves solely the payment of money damages for which the Indemnified Party will be indemnified hereunder, (y) does not involve a finding or
admission of wrongdoing or any violation of Law by the Indemnified Party, and (z) includes a complete and unconditional release from all liability or obligation of the Indemnified Party in respect thereof. If the Indemnifying Party elects to
proceed with the defense of any Third Party Claim for which the Indemnifying Party has the right to control pursuant to this Section 9.5(a), the Indemnified Party shall have the right, at its own expense, to participate in the defense
thereof and, at its own expense, to employ counsel, separate from the counsel employed by the Indemnifying Party, it being understood that the Indemnifying Party shall control such defense. If the Indemnifying Party does not elect to proceed
with the defense (including settlement or compromise) of any such Third Party Claim within twenty (20) days of receiving such written notice from the Indemnified Party in connection with a Third Party Claim or if the Indemnifying Party is
otherwise not entitled to conduct the defense pursuant to this Section 9.5(a), the Indemnified Party shall proceed with the defense (including settlement or compromise) of such Third Party Claim; provided, that the Indemnified
Party shall not settle, compromise or otherwise discharge any Third Party Claim without the prior written consent of the Indemnifying Party (which consent shall not be unreasonably withheld, conditioned or delayed). Nothing herein shall be
deemed to prevent the Indemnified Party from making a claim, and an Indemnified Party may make a claim hereunder, for potential or contingent claims or demands or Losses; provided, the notice of such claim sets forth the good faith
basis for any such potential or contingent claim or demand or Loss; provided, further, that no such party shall be liable to pay any amounts relating to a potential or contingent portion of any claim or demand or Loss until such
time as such claim or demand or Loss gives rise to an actual obligation to make a payment or such Loss is otherwise actually incurred. Notwithstanding anything to the contrary set forth herein, the Seller shall have the exclusive right to
control any Third Party Claim involving an Excluded Liability and the Company and the Buyer shall execute such documents as are reasonably necessary to give the Seller the ability to control such Third Party Claim (in each case, subject to the
Buyer’s right to participate in the defense of such claim in accordance with this Section 9.5(a) and the limitations on the Seller’s ability to settle any Third Party Claim in its capacity as an Indemnifying Party pursuant to this Section
9.5(a)).
(b) In the event that any Indemnified Party desires to seek indemnification under this Article IX in respect of, arising out of or involving a Loss or a claim or demand hereunder that does not
involve a Third Party Claim being asserted against or sought to be collected from such Indemnified Party (a “Direct Claim”), the Indemnified Party shall deliver a Claim Notice in respect thereof to the Indemnifying Party with reasonable
promptness after becoming aware of facts supporting such Direct Claim, and shall provide the Indemnifying Party with such information with respect thereto as the Indemnifying Party may reasonably request; provided, however, any
failure on the part of the Indemnified Party to so notify the Indemnifying Party shall not limit any of the obligations of the Indemnifying Party, or any of the rights of the Indemnified Party, under this Article IX (except to the
extent such failure materially adversely prejudices the Indemnifying Party). If the Indemnifying Party disputes a claim for indemnification with respect to such Direct Claim or any portion thereof and notifies the Indemnified Party in writing
(which writing shall set forth the grounds for such objection) after its receipt of the Claim Notice, the Indemnified Party and the Indemnifying Party shall meet and attempt in good faith to resolve their differences with respect to such Direct
Claim or any portion thereof. If the dispute has not been resolved within twenty (20) Business Days after the Indemnifying Party notifies the Indemnified Party of such dispute (or, if no such notification from the Indemnifying Party has been
made within twenty (20) Business Days after the delivery of the Claim Notice, then, upon the twentieth (20th) Business Day after delivery of the Claim Notice), either the Indemnifying Party or the Indemnified Party may proceed with pursuing the
remedies provided herein to resolve such dispute.
(c) Notwithstanding the provisions of Section 10.11, each Indemnifying Party hereby consents to the nonexclusive jurisdiction of any court in which an Action in respect of a Third Party Claim is
brought against any Indemnified Party for purposes of any claim that an Indemnified Party may have under this Agreement with respect to such Action or the matters alleged therein and agrees that process may be served on each Indemnifying Party
with respect to such claim anywhere.
(d) With respect to any Losses for which a Buyer Indemnified Party is entitled to indemnification pursuant to Section 9.2(b), the Buyer agrees that it shall and it shall cause the Buyer Indemnified
Parties to first seek recovery in respect of such Losses from the R&W Insurance Policy; provided, however, that a Buyer Indemnified Party shall not be required to submit a claim if such claim is expressly excluded from or
not within the scope of coverage under the R&W Insurance Policy. To the extent the Buyer Indemnified Parties are unable to recover any amount of such Losses from the R&W Insurance Policy or coverage is otherwise denied (whether as a
result of any retention amounts, policy exclusions, omissions of coverage, coverage denials, policy caps, or otherwise), the Buyer Indemnified Parties shall have the right to recover such indemnifiable Losses for which coverage is not available
directly from the Seller (subject to the limitations set forth in Section 9.4). For avoidance of doubt, the Buyer shall be entitled to deliver a Claim Notice to the Seller (thereby preserving its rights with respect to such Claim Notice
against the Seller in accordance with Section 9.1(c)), without being in breach of the first sentence of this Section 9.5(d), provided that the Buyer concurrently seeks recovery in respect of the applicable Losses from the
R&W Insurance Policy.
(e) If the Indemnifying Party has assumed the defense of any Third Party Claim, the Indemnified Party shall reasonably cooperate and assist the Indemnifying Party in connection with the defense of such
Third Party Claim.
Section 9.6 R&W Insurance Policy. Concurrently with the execution and delivery of this Agreement, the Buyer has obtained the representations and
warranties insurance policy attached hereto as Exhibit G with respect to the representations and warranties of the Company and the Seller in this Agreement and the other matters covered by such policy (the “R&W Insurance Policy”).
The Seller shall deliver, or cause to be delivered, to the Buyer a USB drive or DVD containing, in electronic format, all documents posted as of the Closing Date to the Data Room promptly following the Closing (and in any event no later than
ten (10) days following the Closing). Notwithstanding anything to the contrary contained herein, no limitations (including any survival limitations and other limitations set forth in this Article IX), qualifications or procedures in
this Agreement shall be deemed to limit or modify the ability of the Buyer to make claims under or recover under the R&W Insurance Policy; it being understood that any matter for which there is coverage available under the R&W
Insurance Policy shall be subject to the terms, survival, conditions and limitations, if any, set forth in the R&W Insurance Policy.
Section 9.7 Release. Except as expressly set forth in this Agreement or in any agreement delivered pursuant to or concurrently in connection with
this Agreement, the Seller, on behalf of itself and all of its Affiliates (each, a “Releasing Person”), hereby irrevocably waives, releases and discharges the Company and its successors and assigns, and Representatives (collectively, “Releasees”)
from any and all Actions, demands, rights, Losses, Liabilities, debts, dues, sums of money, accounts, reckonings, costs, expenses, responsibilities, covenants, Contracts, controversies, agreements, claims, judgments, and damages to the
Releasing Persons of any kind or nature whatsoever (including, without limitation, in respect of rights of contribution or indemnification), in each case whether absolute or contingent, liquidated or unliquidated, known or unknown, and
whether arising hereunder or under any other agreement or understanding, at law or equity, or otherwise, in each case, arising from or in connection with the operation and/or ownership of the Company and the Business on or prior to Closing
(collectively, the “Released Claims”) and the Releasing Persons shall not seek to recover any amounts in connection therewith or thereunder from the Releasees; provided, however, that, notwithstanding the foregoing,
such Releasing Person is not releasing or discharging any Releasee from, and Released Claims expressly exclude, (i) any right or obligation expressly created by this Agreement or Transaction Document or any other agreement or document
delivered in connection herewith and (ii) any claim that cannot be released under applicable Law.
Section 9.8 Exclusive Remedies. Except in the case of (i) any claims for, arising from, or based on Fraud or (ii) any remedies with respect to the
purchase price adjustment as contained in Section 2.4, the parties hereto acknowledge and agree that, from and after the Closing, the sole and exclusive remedy of the Indemnified Parties with respect to any and all claims for Losses
resulting from or arising out of any breach of or inaccuracy in any representation or warranty or covenant made in this Agreement or in any certificate delivered pursuant to this Agreement shall be pursuant to the indemnification provisions
set forth in this Article IX and recovery under the R&W Insurance Policy. Nothing in this Section 9.8 shall limit any Person’s right to (i) assert any claim or cause of action and obtain any remedy otherwise available to
it against any Person arising from, or based on Fraud, or (ii) seek and obtain any equitable relief to which any Person shall be entitled pursuant to this Agreement, including without limitation, pursuant to Section 7.11, Section
10.7, or Section 2.4.
Section 9.9 Indemnification Payment Tax Treatment. The parties agree that any indemnification payment pursuant to this Article IX shall be
treated as an adjustment to the Purchase Price for all Tax purposes.
ARTICLE X
MISCELLANEOUS
Section 10.1 Expenses. Except as otherwise expressly provided herein, the Seller (with respect to any fees, costs, and expenses of the Seller or prior
to the Closing, of the Company) and the Buyer shall each pay all of their own fees, costs and expenses (including attorneys’ and accountants’ fees, costs and expenses) in connection with the negotiation of this Agreement, the performance of
their obligations hereunder and the consummation of the Contemplated Transactions.
Section 10.2 Amendment. This Agreement may not be amended except by an instrument in writing signed on behalf of the Buyer, the Company and the
Seller.
Section 10.3 Entire Agreement. This Agreement and the other Transaction Documents, including all appendices, exhibits and schedules hereto and
thereto, together with the Confidentiality Agreement and that certain Clean Team Confidentiality Agreement, dated January 8, 2024, by and between the Seller and the Buyer, contain all of the terms, conditions and representations and
warranties agreed to by the parties relating to the subject matter of this Agreement and supersede all prior and contemporaneous agreements, negotiations, correspondence, undertakings and communications of the parties or their
Representatives, oral or written, respecting such subject matter.
Section 10.4 Notices. Any notice or other communication required or permitted under this Agreement shall be deemed to have been duly given and made if
(a) in writing and served by personal delivery upon the party for whom it is intended, upon delivery or refusal of delivery; (b) sent via electronic mail or similar electronic transmission to such party at its email address set forth below,
upon confirmation of receipt by the recipient; (c) sent by a nationally recognized overnight delivery service to the party at the address set forth below, upon delivery or refusal of delivery; or (d) if delivered by certified mail, registered
mail or courier service, return‑receipt received to the party at the address set forth below, upon delivery or refusal of delivery, to the Persons indicated:
If to the Buyer or, after the Closing, the Company, to:
Booz Allen Hamilton Inc.
Legal, Ethics & Compliance Department
8283 Greensboro Drive
McLean, Virginia 22102
Attention: Jacob D. Bernstein
E-mail: Bernstein_jacob@bah.com
with a copy (which shall not constitute notice) to:
King & Spalding LLP
1650 Tysons Boulevard, Suite 400
McLean, Virginia 22102
Attention: Charles W. Katz
Email: ckatz@kslaw.com
Attention: Lindsay A. Thomas
Email: lthomas@kslaw.com
If to the Seller or, prior to the Closing, the Company, to:
PAR Technology Corporation
8383 Seneca Turnpike
New Hartford, NY 13413
Attention: Bryan Menar, Chief Financial Officer
E-mail: bryan_menar@partech.com
with a copy (which shall not constitute notice) to:
Gibson, Dunn & Crutcher LLP
200 Park Avenue
New York, New York 10166
Attention: Christopher Lang
E-mail: CLang@gibsondunn.com
and
PAR Technology Corporation
8383 Seneca Turnpike
New Hartford, NY 13413
Attention: Cathy A. King, Vice President & General Counsel
E-mail: cathy_king@partech.com
Such addresses may be changed, from time to time, by means of a notice given in the manner provided in this Section 10.4.
Section 10.5 Waiver. Waiver of any term or condition of this Agreement by any party shall only be effective if in writing and shall not be construed
as a waiver of any subsequent breach or failure of the same term or condition or a waiver of any other term or condition of this Agreement.
Section 10.6 Binding Effect; Assignment. Neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned by any
party without the prior written consent of the Buyer (in the case of any assignment by the Seller or, prior to the Closing, the Company) or the Seller (in the case of any assignment by the Buyer or, from and after the Closing, the Company),
and any purported assignment or other transfer without such consent shall be void and unenforceable; provided, however, that without written consent of any party hereto, the Buyer may assign or transfer all or any part of its
rights and interests hereunder (i) to any of its Affiliates, (ii) to any successor to all or substantially all of the Business, and (iii) as collateral security to any lender to the Buyer; provided, further, that no assignment
shall limit the assignor’s obligations hereunder. Subject to the preceding sentence, this Agreement shall be binding upon, inure to the benefit of and be enforceable by the parties to this Agreement and their respective successors and
permitted assigns.
Section 10.7 Specific Performance. The parties agree that irreparable damage would occur in the event that any of the provisions of this Agreement
were not performed in accordance with their specific terms or were otherwise breached and that money damages or other legal remedies would not be an adequate remedy for any such nonperformance or breach. Accordingly, each of the parties
shall be entitled to specific performance of the terms hereof, including an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement in the Court of Chancery of the
State of Delaware, provided, that if jurisdiction is not then available in the Court of Chancery of the State of Delaware, then in any federal court located in the State of Delaware or any other Delaware state court, this being in addition to
any other remedy to which such party is entitled in equity or at law. Each of the parties hereby further waives any requirement under any Law to post security as a prerequisite to obtaining equitable relief. This Section 10.7 is in
addition to and not in place of the remedies provision in Section 7.11.
Section 10.8 No Third Party Beneficiary. Except as otherwise set forth in Article IX (which shall be for the benefit of the Indemnified
Parties), Section 7.9, and Section 10.19, which shall inure to the benefit of the Persons benefitting therefrom who are intended to be third-party beneficiaries thereof, nothing in this Agreement shall confer any rights,
remedies or claims upon any Person not a party or a permitted assignee of a party to this Agreement.
Section 10.9 Schedules. The parties hereto agree that any reference in a particular Schedule or section of the Disclosure Schedules shall only be
deemed to be an exception to (or, as applicable, a disclosure for purposes of) (a) the representations and warranties of the Seller and the Company, on the one hand, or the Buyer, on the other hand, as applicable, that are contained in the
corresponding Section of this Agreement and (b) any other representations and warranties of the Seller and the Company, on the one hand, or the Buyer, on the other hand, as applicable, that are contained in this Agreement, but only if the
relevance to such other representations and warranties would be reasonably apparent on the face of such disclosure. No disclosure in the Seller and Company Disclosure Schedules hereto relating to any possible breach or violation of any
agreement, Order or Law shall be construed as an admission or indication that any such breach or violation exists or has actually occurred, or shall constitute an admission of liability. The fact that any item of information is disclosed in
any Seller and Company Disclosure Schedules shall not be construed to mean that such information is required to be disclosed by this Agreement. Such information and the dollar thresholds set forth herein shall not be used as a basis for
interpreting the terms “material” or “Material Adverse Effect” or other similar terms in this Agreement.
Section 10.10 Governing Law. This Agreement and all claims or causes of action (whether in contract or tort) that may be based upon, arise out of or
relate to this Agreement or the negotiation, execution or performance of this Agreement (including any claim or cause of action based upon, arising out of or related to any representation or warranty made in or in connection with this
Agreement or as an inducement to enter into this Agreement), shall be governed by the internal laws of the State of Delaware, without regard to conflict of law principles (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 10.11 Submission to Jurisdiction. Each of the parties irrevocably agrees that any legal action or proceeding arising out of or relating to this
Agreement or the transactions contemplated hereby brought by any party or its successors or assigns against the other party shall be brought and determined in the Court of Chancery of the State of Delaware, provided, that if jurisdiction is
not then available in the Court of Chancery of the State of Delaware, then any such legal action or proceeding may be brought in any federal court located in the State of Delaware or any other Delaware state court. Each of the parties hereby
irrevocably submits to the exclusive jurisdiction of the aforesaid courts for itself and with respect to its property, generally and unconditionally, with regard to any such action or proceeding arising out of or relating to this Agreement
and the transactions contemplated hereby. Each of the parties agrees not to commence any action, suit or proceeding relating thereto except in the courts described above in Delaware, other than actions in any court of competent jurisdiction
to enforce any judgment, decree or award rendered by any such court in Delaware as described herein. Each of the parties further agrees that notice as provided herein shall constitute sufficient service of process and the parties further
waive any argument that such service is insufficient. Each of the parties hereby irrevocably and unconditionally waives, and agrees not to assert, by way of motion or as a defense, counterclaim or otherwise, in any action or proceeding
arising out of or relating to this Agreement or the transactions contemplated hereby, (a) any claim that it is not personally subject to the jurisdiction of the courts in Delaware as described herein for any reason, (b) that it or its
property is exempt or immune from jurisdiction of any such court or from any legal process commenced in such courts (whether through service of notice, attachment prior to judgment, attachment in aid of execution of judgment, execution of
judgment or otherwise) and (c) that (i) the suit, action or proceeding in any such court is brought in an inconvenient forum, (ii) the venue of such suit, action or proceeding is improper or (iii) this Agreement, or the subject matter hereof,
may not be enforced in or by such courts.
Section 10.12 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the
remainder of the provisions of this Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated; provided, however, that if such invalid, void or unenforceable provision is so
material to the party for whose benefit the provision was originally included so that such party would not have entered into this Agreement without such provision, the parties will attempt in good faith to agree to replace such provision with
a valid and enforceable provision that will achieve, to the extent possible, the economic, business and other potential purposes of such provision; provided, further, that any such replacement provision shall not be more
restrictive upon the party subject thereto than the provision being replaced. The preceding sentence is in addition to and not in place of the severability provisions in Section 7.11.
Section 10.13 Waiver of Jury Trial. EACH OF THE PARTIES TO THIS AGREEMENT HEREBY IRREVOCABLY WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
Section 10.14 No Strict Construction. The parties hereto have participated jointly in the negotiation and drafting of this Agreement and the other
agreements and documents contemplated herein. In the event an ambiguity or question of intent or interpretation arises under any provision of this Agreement or any other agreement or documents contemplated herein, this Agreement and such
other agreements or documents shall be construed as if drafted jointly by the parties thereto, and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of authoring any of the provisions of this Agreement
or any other agreements or documents contemplated herein.
Section 10.15 Counterparts. This Agreement may be signed in any number of counterparts with the same effect as if the signatures to each counterpart were upon a single instrument, and all such
counterparts together shall be deemed an original of this Agreement. A signature on a copy of this Agreement received by either party by facsimile or portable document format (PDF) is binding upon the other party as an original. The parties
agree that a secured electronic signature process is acceptable and binding. This Agreement may be executed by providing an electronic signature under the terms of the Electronic Signatures Act, 15 U.S.C. § 7001 et. seq., and may not be
denied legal effect solely because it is in electronic form or permits the completion of the business transaction referenced herein electronically instead of in person.
Section 10.16 Time of Essence. Time is of the essence with regard to all dates and time periods set forth or referred to in this Agreement.
Section 10.17 Personal Liability; Non-Recourse. This Agreement shall not create or be deemed to create or permit any personal liability or obligation
on the part of any direct or indirect stockholder of the Seller or the Buyer or any officer, director, employee, Representative or investor of either party hereto. No past, present or future director, officer, employee, incorporator, member,
partner, stockholder, affiliate, agent, attorney, advisor or other Representative of any party, or affiliate of any of the foregoing (excluding the Buyer or the Seller), shall have any liability (whether in contract, tort, equity or
otherwise) for any one or more of the representations, warranties, covenants, agreements or other obligations or liabilities under this Agreement (whether for indemnification or otherwise) or of or for any claim based on, arising out of or
related to this Agreement. Notwithstanding the foregoing, nothing in this Section 10.17 or otherwise contained in this Agreement shall limit or eliminate, or be construed in any manner or deemed to affect, limit, modify or waive, in
any respect, (a) the liability of any Person pursuant to the terms and conditions of any other agreements or documents entered into in connection with this Agreement to which such Person may be party, (b) any party’s available remedies in the
event of any Fraud committed by another party or its Affiliates or (c) any of the Buyer’s rights or remedies pursuant to the R&W Insurance Policy.
Section 10.18 Buyer’s Investigation and Reliance. The Buyer is a sophisticated purchaser and has made its own independent investigation, review and
analysis regarding the Company and the Business and the transactions contemplated hereby, which investigation, review and analysis were conducted by the Buyer together with expert advisors, including legal counsel, that it has engaged for
such purpose. The Buyer and its Representatives have been provided with access to the Representatives, properties, offices, plants and other facilities, books and records of the Company and the Business and other information that they have
requested in connection with their investigation of the Company and the Business and the transactions contemplated hereby. None of the Seller, the Company or any of their respective Affiliates or Representatives has made any representation
or warranty, express or implied, as to the accuracy or completeness of any information concerning the Company or the Business contained herein or made available in connection with the Buyer’s investigation of the Company, except as expressly
set forth in this Agreement, and the Seller, the Company and their respective Affiliates and Representatives expressly disclaim any and all liability that may be based on such information or errors therein or omissions therefrom, unless any
such information is expressly set forth in this Agreement. The Buyer has not relied and is not relying on any statement, representation or warranty, oral or written, express or implied, made by the Seller, the Company, or any of their
respective Affiliates or Representatives, except as expressly set forth in Article IV, with respect to representations made only by Seller, and Article V, with respect to representations made by the Seller and the Company.
Except as expressly set forth in this Agreement, none of the Seller, the Company or any of their respective Affiliates or Representatives shall have any liability to the Buyer or any of its Affiliates or Representatives resulting from the use
of any information, documents or materials made available to the Buyer, whether orally or in writing, in any confidential information memoranda, “data rooms,” management presentations, due diligence discussions or in any other form in
expectation of the transactions contemplated by this Agreement. None of the Seller, the Company or any of their respective Affiliates or Representatives is making, directly or indirectly, any representation or warranty with respect to any
estimates, projections or forecasts involving the Company and its Subsidiaries except as expressly set forth in Article IV, with respect to representations made by Seller, and Article V, with respect to representations made by
the Seller and the Company.
Section 10.19 Legal Representation.
(a) The Buyer, on behalf of itself and its Affiliates (including, after the Closing, the Company and its Subsidiaries) acknowledges and agrees that Gibson, Dunn & Crutcher LLP (“Gibson Dunn”)
has acted as counsel for the Seller and the Company and its Subsidiaries in connection with this Agreement and the transactions contemplated hereby (the “Acquisition Engagement”), and in connection with this Agreement and the
transactions contemplated hereby, Gibson Dunn has not acted as counsel for any other Person, including the Buyer.
(b) Only the Seller, the Company and its Subsidiaries and their respective Affiliates shall be considered clients of Gibson Dunn in the Acquisition Engagement. The Buyer, on behalf of itself and its
Affiliates (including after the Closing, the Company and its Subsidiaries) acknowledges and agrees that all confidential communications between the Seller, the Company and its Subsidiaries and their respective Affiliates, on the one hand, and
Gibson Dunn, on the other hand, to the extent relating to the Acquisition Engagement, which, immediately prior to the Closing, constitute attorney-client privileged communications (the “Protected Communications”), shall be deemed to
belong solely to the Seller and its Affiliates (other than the Company), and not the Company, and shall not pass to or be claimed, held, or used by the Buyer or the Company upon or after the Closing. Accordingly, the Buyer shall not have or
seek access to any such Protected Communications (and to the extent such access is obtained unintentionally, the Buyer shall promptly discontinue such access), or to the files of Gibson Dunn relating to the Protected Communications, whether or
not the Closing occurs. Without limiting the generality of the foregoing, upon and after the Closing, (i) to the extent that files of Gibson Dunn in respect of the Protected Communications constitute property of the client, only the Seller and
its Affiliates shall hold such property rights and (ii) Gibson Dunn shall have no duty whatsoever to reveal or disclose any such attorney-client communications or files to the Company or the Buyer by reason of any attorney-client relationship
between Gibson Dunn and the Company or otherwise; provided, however, that notwithstanding the foregoing, Gibson Dunn shall not disclose any such attorney-client communications or files to any third parties (other than
Representatives, accountants and advisors of the Seller and its Affiliates; provided, that such Representatives, accountants and advisors are instructed to maintain the confidence of such attorney-client communications). If and to the
extent that, at any time subsequent to Closing, the Buyer or any of its Affiliates (including after the Closing, the Company) shall have the right to assert or waive any attorney-client privilege with respect to any Protected Communications,
the Buyer, on behalf of itself and its Affiliates (including after the Closing, the Company) shall be entitled to waive such privilege only with the prior written consent of the Seller.
(c) The Buyer, on behalf of itself and its Affiliates (including after the Closing, the Company) acknowledges and agrees that Gibson Dunn has acted as counsel for the Seller, the Company and its
Subsidiaries and their respective Affiliates for several years and that the Seller reasonably anticipates that Gibson Dunn will continue to represent it and/or its Affiliates (other than the Company after the Closing) in future matters.
Accordingly, the Buyer, on behalf of itself and its Affiliates (including after the Closing, the Company) expressly (i) consents to Gibson Dunn’s representation of the Seller and/or its Affiliates (other than the Company after the Closing)
and/or any of their respective agents (if any of the foregoing Persons so desire) in any post-Closing matter in which the interests of the Buyer and the Company, on the one hand, and the Seller or any of its Affiliates, on the other hand, are
adverse, in each case, to the extent relating to the transactions contemplated by this Agreement, and whether or not such matter is one in which Gibson Dunn may have previously advised the Seller, the Company and its Subsidiaries or their
respective Affiliates and (ii) consents to the disclosure by Gibson Dunn to the Seller or its Affiliates of any Protected Communications in connection with any such representation described in clause (i) of this sentence.
(d) The Buyer, on behalf of itself and its Affiliates (including after the Closing, the Company) further covenants and agrees that each shall not assert any claim against Gibson Dunn in respect of legal
services provided to the Company or its Affiliates by Gibson Dunn in connection with this Agreement or the transactions contemplated hereby.
(e) From and after the Closing, the Company shall cease to have any attorney-client relationship with Gibson Dunn, unless and to the extent Gibson Dunn is expressly engaged in writing by the Company to
represent the Company after the Closing and either (i) such engagement involves no conflict of interest with respect to the Seller and/or any of its Affiliates or (ii) the Seller or any such Affiliate, as applicable, consent in writing to such
engagement. Any such representation of the Company by Gibson Dunn after the Closing shall not affect the foregoing provisions hereof. Furthermore, Gibson Dunn, in its sole discretion, shall be permitted to withdraw from representing the
Company and its Subsidiaries in order to represent or continue so representing the Seller.
(f) The Seller and the Buyer consent to the arrangements in this Section 10.19 and waive any actual or potential conflict of interest that may be involved in connection with any representation by
Gibson Dunn permitted hereunder.
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this Agreement as of the date first above written.
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BOOZ ALLEN HAMILTON INC.
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By:
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/s/ Judith Doston
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Name: Judith Dotson
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Title: Executive Vice President
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Signature Page to Stock Purchase Agreement
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PAR GOVERNMENT SYSTEMS CORPORATION
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By:
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/s/ Bryan A. Menar
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Name: Bryan A. Menar
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Title: Vice President and Treasurer
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PAR TECHNOLOGY CORPORATION
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By:
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/s/ Bryan A. Menar
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Name: Bryan A. Menar
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Title: Chief Financial Officer
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Signature Page to Stock Purchase Agreement