Purchase Agreement dated as of December 7, 2023

This STOCK PURCHASE AGREEMENT (this “Agreement”), dated as of December 7, 2023, is by and among Carrier Global Corporation, a Delaware corporation (“Parent”), and Honeywell International Inc., a Delaware corporation (“Purchaser”).

WHEREAS, the Seller Group is the record and beneficial owner of all of the issued and outstanding Equity Interests of each of the Transferred Companies (collectively, the “Shares”);

WHEREAS, Parent desires to cause the Seller Group to sell and transfer, and Purchaser desires to purchase, the Shares for the consideration set forth in Section 2.2, subject to the terms and conditions of this Agreement; and

WHEREAS, the parties desire to make certain representations, warranties, covenants and agreements in connection with this Agreement.

NOW, THEREFORE, in consideration of the mutual promises hereinafter set forth and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, and intending to be legally bound, the parties hereby agree as follows:

Section 1.1          Defined Terms.  For the purposes of this Agreement, the following terms shall have the following meanings:

“Acquisition Proposal” shall mean any offer or proposal for, or any indication of interest in, any of the following (other than the Sale and the other transactions contemplated by this Agreement and the Ancillary Agreements): (i) any direct or indirect acquisition or purchase of more than thirty-five percent (35%) of the Shares of the Transferred Companies or all or substantially all of the assets of the Business, (ii) any merger, consolidation or other business combination relating to the Transferred Entities or (iii) any recapitalization, reorganization or any other extraordinary business transaction involving or otherwise relating to the Transferred Entities.

“Action” shall mean any demand, claim, action, suit, arbitration, litigation or proceeding.

“Affiliate” shall mean, with respect to any Person, any other Person that directly, or through one or more intermediaries, controls or is controlled by or is under common control with such Person; provided, that, from and after the Closing, (a) none of the Transferred Entities shall be considered an Affiliate of Parent or any of Parent’s Affiliates, (b) neither Parent nor any of Parent’s Affiliates shall be considered an Affiliate of any Transferred Entity and (c) neither Parent nor any of Parent’s Affiliates shall be considered an Affiliate of Purchaser or any of its Affiliates, and neither Purchaser nor any of its Affiliates shall be considered an Affiliate of Parent or any of Parent’s Affiliates.

“Ancillary Agreements” shall mean the Foreign Transfer Agreements, Transition Services Agreement, Intellectual Property Assignment Agreement and the Intellectual Property Cross License Agreement.

“Australian Tax Sharing Agreement” means a valid tax sharing agreement entered into in accordance with section 721-25 of the Income Tax Assessment Act 1997 (Cth).

“Automatic Transfer Employee” means a Business Employee (other than a Transferred Entity Employee) in any jurisdiction in which the conditions are met for the employment of such employee to transfer to Purchaser or its Affiliates or the Transferred Entities upon the occurrence of Closing by virtue of the Transfer Regulations.

“Benefit Plan” shall mean each “employee benefit plan” (as such term is defined in ERISA Section 3(3), whether or not subject to ERISA) and any other compensation or benefits plan, program or arrangement, including any employment agreement, cash or equity-based bonus or incentive arrangement, severance or retention arrangement, vacation policy, pension or retirement plan, life assurance or health and welfare plan, sponsored, maintained or contributed to or by Parent or any of its Affiliates for the benefit of any Business Employee and any other current or former officer, employee or service provider of a Transferred Entity, other than any plan, program or arrangement sponsored by a Governmental Entity.

“Business” shall mean the access solutions business, as conducted or contemplated to be conducted in written plans pursuant to which associated research and development expenses have been incurred, in each case, as of each of the date hereof and immediately prior to the Closing by Parent and its Subsidiaries, consisting of (a) the design, engineering, sourcing, sale, installation, servicing and maintenance of any hardware, digital solution, cloud operations and services, system or device for commercial and residential buildings providing for (i) entry into and egress from buildings or rooms, (ii) electronic lockboxes, (iii) central station automation software, (iv) video monitoring for security purposes, (v) monitoring for fire detection purposes, (vi) physical and perimeter security and control of any type and (vii) fire notification alarms, including, for the avoidance of doubt, the businesses conducted or contemplated to be conducted in written plans pursuant to which associated research and development expenses have been incurred, in each case, as of each of the date hereof and immediately prior to the Closing by Parent and its Subsidiaries under its LenelS2, MASterMind, Onity, BrokerBay and Supra brands and (b) digital real estate brokerage scheduling and showing services and the design and sale of digital real estate brokerage analytics; provided, that, for the avoidance of doubt, “Business” shall not include any of the Specified Retained Businesses.

“Business Day” shall mean any day that is not a Saturday, a Sunday or other day on which commercial banks in the City of New York, New York are required or authorized by Law to be closed.

“Business Employee” shall mean each Transferred Entity Employee and other individual employed by the Parent Group who is primarily related to, or otherwise reasonably determined by Parent to be necessary to the operations of, the Business, other than the Excluded Employees.

“Business Employee Representative Body” shall mean any labor or trade union, labor organization, works council or similar employee representative body.

“Business Environmental Permit” shall mean any material Permit required to operate the Business or occupy and use the Business Leased Real Property under any applicable Environmental Law.

“Business Independent Contractor” means each independent contractor or consultant who is (a) a natural person, (b) engaged by Parent or one of its Subsidiaries (including the Transferred Entities) and (c) provides services to the Business.

“Business Intellectual Property” shall mean all Intellectual Property owned, or purported to be owned, by Parent or its Subsidiaries (including the Transferred Entities) and primarily used or held for use in the Business, including all Intellectual Property set forth on item (c) of Schedule I whether or not such Intellectual Property would otherwise be deemed to be exclusively used or held for use in the Business; provided, that, for the avoidance of doubt and notwithstanding anything to the contrary in this Agreement, Business Intellectual Property shall not include (i) any Intellectual Property set forth in Schedule VIII or (ii) the Parent Names or any Intellectual Property with respect thereto.

“Business Leased Real Property” shall mean such real property leased, subleased or otherwise used or occupied pursuant to a Business Real Property Lease, together with the buildings, structures, improvements, machinery, equipment, personal property and other tangible assets of a member of the Parent Group located thereon or used in connection therewith.

“Business Material Adverse Effect” shall mean any event, circumstance, condition, change, development or effect that has a material adverse effect on the business, financial condition or results of operations of the Business and the Transferred Entities, taken as a whole; provided that, no such event, circumstance, condition change, development or effect to the extent resulting or arising from or in connection with any of the following matters shall be deemed, either alone or in combination, to constitute or contribute to, or be taken into account in determining whether there has been, a Business Material Adverse Effect: (a) the general conditions and trends in the industries or businesses in which the Business is operated or in which any of the Transferred Entities operate, including competition in geographic or product areas, (b) general political, economic, financial or capital markets conditions (including interest rates, exchange rates, commodity prices, costs of goods, tariffs, trade wars and credit markets), (c) any act of civil unrest, war, sabotage, cyberattacks, terrorism or military actions, or the escalation thereof, including an outbreak or escalation of hostilities involving the United States or any other Governmental Entity or the declaration by the United States or any other Governmental Entity of a national emergency or war, (d) any conditions resulting from natural or manmade disasters, weather conditions, epidemics, pandemics or disease outbreaks (including COVID-19) or public health emergencies (as declared by the World Health Organization, the Health and Human Services Secretary of the United States, Public Health England or the European Centre for Disease Prevention and Control), or other acts of God, (e) the failure of the financial or operating performance of the Transferred Entities to meet internal or published, Parent’s or analyst projections, forecasts, estimates, predictions or budgets for any period (provided, that the underlying causes thereof, to the extent not otherwise excluded by this definition, may be deemed to contribute to, or be taken into account in determining whether there has been, a Business Material Adverse Effect; provided, further, that this clause (e) shall not be construed as implying that Parent is making any representation or warranty hereunder with respect to any internal, Parent or analyst projections, forecasts or budgets), (f) any action taken or omitted to be taken by or at the written request or with the written consent of Purchaser or that is required by this Agreement, (g) the execution, announcement or pendency of this Agreement and the Ancillary Agreements or the terms hereof or thereof (including the identity of Purchaser), or the announcement, pendency or consummation of the transactions contemplated hereby or thereby, including the impact thereof on the relationships, contractual or otherwise, of the Business with employees, labor unions, works councils, financing sources, customers, suppliers, partners or other business relationships (provided that this clause (g) shall not be taken into account when determining whether there has been a Business Material Adverse Effect as it relates to Section 3.4), or (h) changes in any Laws (including COVID-19 Measures) or GAAP or other applicable accounting principles or standards or any authoritative interpretations thereof; provided, further, that any such event, change, development or effect resulting from clauses (a), (b), (c), (d) or (h) immediately above (excluding any such event, circumstance, condition, change, development or effect arising from, resulting from or related to COVID-19 or any COVID-19 Measure) shall be taken into account in determining whether a Business Material Adverse Effect has occurred or would reasonably be expected to occur to the extent (and only to the extent) that such event, change, development or effect has, individually or in the aggregate, a disproportionate effect on the Business and the Transferred Entities, taken as a whole, compared to other participants in the industries in which the Business and the Transferred Entities conduct their businesses.

“Business Real Property Lease” shall mean each real property lease, sublease, easement, license and other use or occupancy agreement under which any member of the Parent Group is a party as lessee, sublessee, licensee, grantee or in a similar capacity, in effect as of the date of this Agreement and used in connection with Business (together with any and all material amendments, modifications, supplements, extensions, assignments thereof and guarantees and security agreements).

“Business Systems” shall mean all Software, computer hardware and systems, including electronic data processing, record keeping, communications and telecommunications networks, interfaces, platforms, equipment, servers, peripherals and other information technology assets, including any outsourced systems and processes, that are owned or used by or for the Business.

“Business Territory” shall mean each jurisdiction or country in which the Business is conducted or engaged in as of the date hereof or as of immediately prior to the Closing.

“CARES Act” shall mean the Coronavirus Aid, Relief, and Economic Security Act of 2020, enacted under Pub. L. 116 — 136.

“Carrier Assets” shall mean:

(a)         the products and businesses of the Specified Retained Businesses (including the businesses of Parent and its Affiliates conducted under any brands or marks listed in Section 5.13));

(b)         all cash and cash equivalents of Parent and its Subsidiaries (other than Cash reflected in Net Indebtedness on the Final Closing Statement);

(c)         except for the Business Leased Real Property, all of Parent’s and its Subsidiaries’ (other than the Transferred Entities) right, title and interest in owned and leased real property and other interests in real property including all such right, title and interest under each real property lease pursuant to which any of them leases, subleases (as sub-landlord or sub-tenant) or otherwise occupies any such leased real property, including all improvements, fixtures and appurtenances thereto and rights in respect thereof;

(d)         except for the Transferred Contracts, the Contracts with respect to Business Leased Real Property and the portion of the Noel Shared Contracts solely to the extent attributable to the Business at Closing, as dealt with in accordance with Section 5.5(d), all Contracts;

(e)         all causes of action (including counterclaims) and defenses (i) against third parties to the extent relating to any of the Carrier Assets or the Carrier Liabilities as well as any books, records and privileged information relating thereto and (ii) relating to any period prior to or through the Closing to the extent that the assertion of such cause of action or defense is necessary in defending any claim that may be asserted against Parent or any of its Affiliates or for which indemnification may be sought by any of the Parent Indemnified Parties pursuant to Article X;

(f)          except for the Business Intellectual Property, all Intellectual Property owned by or purported to be owned by Parent or any of its Subsidiaries (including the Parent Names and the Intellectual Property set forth in Schedule VIII);

(g)         all nontransferable Permits (including nontransferable Business Environmental Permits) and all Permits held by Parent or any of its Subsidiaries that are not primarily related to the Business;

(h)          all Tax Returns (other than Tax Returns exclusively of a Transferred Entity or exclusively related to the Business), and all Tax refunds or Tax credits received by Parent and its Subsidiaries or any of their Affiliates (other than the Transferred Entities), other than to the extent any such refund or credit was specifically taken into account in the determination of Working Capital or Indebtedness, as finally determined pursuant to Article II;

(i)          without limiting Purchaser and the Transferred Entities’ rights provided under Section 5.10, the Parent Group’s policies and programs of or agreements for insurance and interests in insurance pools and programs (in each case including self-insurance) and all rights of any nature with respect to any such insurance policy or program, including any recoveries thereunder and any rights to assert claims seeking any such recoveries;

(j)          all rights and interests of Parent and its Subsidiaries (other than the Transferred Entities) under this Agreement and the Ancillary Agreements;

(k)         all (i) current and former employees and service providers of Parent and its Subsidiaries, other than such current and former employees and service providers who provide or provided services to the Business, or (ii) Seller Benefit Plans;

(l)          all personnel and employment records for (i) employees and former employees of Parent and its Subsidiaries (other than the Transferred Entities) who do not, or did not, provide services to the Business and (ii) former employees of Parent and its Subsidiaries (including the Transferred Entities) whose employment with Parent and its Subsidiaries terminated (x) more than ten (10) years prior to the Closing Date or (y) more than four (4) years and less than ten (10) years prior to the Closing Date to the extent that, in the case of this clause (y), such records are not in the possession of Parent and its Subsidiaries;

(m)        all other assets, properties, rights, agreements, contracts, instruments and claims of Parent and its Subsidiaries or the Transferred Entities to the extent not primarily related to the Business, wherever located, whether tangible or intangible, real, personal or mixed;

(n)         (i) all corporate minute books (and other similar corporate records) and stock records of Parent and its Subsidiaries (other than the Transferred Entities), (ii) all books and records relating to the Carrier Assets, (iii) any books and records or other materials of or in the possession of Parent and its Subsidiaries or the Transferred Entities that (A) any of Parent and its Subsidiaries are required by Law to retain (copies of which, to the extent primarily related to the Business and as permitted by Law, will be made available to Purchaser upon Purchaser’s reasonable request) or (B) any of Parent and its Subsidiaries or the Transferred Entities are prohibited by Law from delivering to Purchaser (including by transfer of equity of the Transferred Entities), including any books and records, reports, information or other materials that disclose in any manner the contents of any other books and records, reports, information or other materials that Parent or any of its Affiliates (including the Transferred Entities) is prohibited by Law from delivering to Purchaser (including by transfer of equity of the Transferred Entities) or (iv) all copies of any books and records that Parent and its Affiliates retain pursuant to Section 5.1(d); and

(o)         (i) all records and reports prepared or received by Parent or any of its Affiliates in connection with the sale of the Business or the transactions contemplated hereby, including all analyses relating to the Business or Purchaser so prepared or received, (ii) all bids and expressions of interest received from prospective purchasers of the Business and (iii) all privileged communications described in Section 11.12.

“Carrier Liabilities” shall mean, (a) any Liability relating to, arising out of, or resulting from, any Carrier Asset, (b) any Liability of Parent and its Subsidiaries that is not a Noel Liability, (c) any Liability, whether arising prior to, on or after the Closing Date, relating to, arising out of, or resulting from, the matters set forth on Schedule IV, (d) any Liability, whether arising prior to, on or after the Closing Date, relating to, arising out of, or resulting from the Pre-Closing Restructuring (other than any amounts to the extent expressly included in Indebtedness of the Transferred Entities, as of immediately prior to Closing, Cash or Working Capital), (e) any Parent Transaction Expenses, (f) any Parent Tax Liability and (g) any Liability, whether arising prior to, on or after the Closing Date, relating to, arising out of, or resulting from, the matters set forth on Schedule VI.

“Cash” shall mean, without duplication, the aggregate of all cash and cash equivalents of the Transferred Entities, as of immediately prior to Closing, that are included in the line item categories of “Cash” specifically identified in Annex B of Schedule II and calculated in accordance with the Accounting Principles.  Notwithstanding anything to the contrary herein, “Cash” shall not include Restricted Cash.

“CFC Tax Amount” shall mean, in respect of any Transferred Entity that is a CFC, an amount equal to the Tax liabilities determined with respect to such Transferred Entity under Section 951 and 951A of the Code for the pre-Closing portion of the taxable year of such Transferred Entity that includes the Closing Date (determined in accordance with Section 7.5, including by utilizing the methodology described in Section 7.5(C)) and assuming (i) a tax rate of 23.86% for purposes of determining the liability under Section 951 and (ii) a tax rate of 13.36% for purposes of determining the liability under Section 951A (for the avoidance of doubt taking into account any “net deemed tangible income return” within the meaning of Section 951A(b)(2)), in each case, taking into account the availability of any foreign tax credits from such CFCs; provided, that the CFC Tax Amount shall disregard (x) any action taken outside the ordinary course of business on the Closing Date after the Closing and (y) activities taken by any Transferred Entity after the Closing Date.

“Clear Exit Amount” means in respect of a Transferred Entity, the amount that entity is required to pay under Tax Law (including section 721-35 of the Income Tax Assessment Act 1997 (Cth)).

“Code” shall mean the U.S. Internal Revenue Code of 1986, as amended.

“Competition and Foreign Investment Expenses” shall mean any filing fees with respect to the notifications required under the HSR Act and any other Competition and Foreign Investment Laws incurred by a party or any of their respective Affiliates in connection with the transactions contemplated by this Agreement.

“Competition and Foreign Investment Laws” shall mean any Laws that are designed or intended to prohibit, restrict or regulate actions having the purpose or effect of monopolization or lessening of competition through merger or acquisition or restraint of trade and all non-U.S. applicable Laws that are designed or intended to prohibit, restrict, review, or regulate investments for national security, public order, state security or similar policy objectives.

“Confidentiality Agreement” shall mean the nondisclosure agreement, dated as of September 1, 2023, by and between Carrier Corporation and Purchaser.

“Contract” shall mean any legally binding lease, contract, license, arrangement, option, instrument or other agreement, other than a Permit.

“control” shall mean, as to any Person, the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities, by contract or otherwise (and the terms “controlled by” and “under common control with” shall have correlative meanings).

“COVID-19” shall mean SARS-CoV-2 virus and COVID-19 disease, and any evolutions, variations or mutations thereof or related or associated epidemics, pandemic or disease outbreaks.

“COVID-19 Measures” shall mean any quarantine, “shelter in place,” “stay at home,” workforce reduction, social distancing, shut down, closure, sequester or any other similar Law, Order, directive, guidelines or recommendations promulgated by any Governmental Entity, including the Centers for Disease Control and Prevention and the World Health Organization, in each case, in connection with or in response to COVID-19, including the CARES Act, and any other action taken or omitted to be taken that Parent reasonably determines to be necessary or prudent for the Business or the Transferred Entities to take in connection with or in response to COVID-19.

“Data Protection Authority” shall mean any Person responsible for enforcing Data Protection Laws (including any “Supervisory Authority” as defined in Data Protection Laws).

“Data Protection Laws” shall mean all Laws (and binding codes of practice) governing the collection, use, storage, Processing, security and transfer of Personal Data, including the California Consumer Privacy Act, the General Data Protection Regulation (EU) 2016/679 (“GDPR”) and the UK General Data Protection Regulation as defined by the Data Protection Act 2018, and any national law supplementing the GDPR or UK GDPR.

“Data Room” shall mean the confidential online database maintained by Intralinks, the index of which as of the date of this Agreement is attached hereto as Schedule III.

“Defined Benefit Pension Plan” shall mean each plan, scheme, arrangement or individual commitment in respect of any Business Employee and/or former employee of the Business all or part of which is (i) classified as a defined benefit plan under GAAP (or the generally accepted accounting principles in the jurisdiction in which the relevant plan, scheme, arrangement or commitment is administered) or (ii) provides any pension (or benefit in connection with retirement or death) which is not calculated solely by reference to assets which (because of the nature of the calculation) must necessarily suffice for the purposes of its provision to or in respect of the recipient.

“Environment” shall mean soil, sediments, land, surface water, groundwater, vegetation, fauna, wetland, natural resource or air.

“Environmental Condition” shall mean a condition resulting from the release of a Regulated Substance into the Environment on, in, under or within any property, but does not include the presence of a Regulated Substance in locations and at concentrations that are naturally occurring or that do not require Remedial Action pursuant to Environmental Laws.

“Environmental Laws” shall mean all Laws relating to the pollution or protection of the Environment, public health and safety (as it relates to exposure to Regulated Substances), worker health and safety and natural resources, including the use, handling, transportation, treatment, storage, disposal, release or discharge of Regulated Substances.

“Environmental Liabilities” shall mean the following Liabilities arising under any Environmental Law: (a) any duty imposed by, or Liability resulting from, a breach or violation of any Environmental Law; (b) any Remedial Action required by Environmental Law; (c) any bodily injury, property damage or other Liabilities of any other Person arising from any Environmental Condition; or (d) any injury to, destruction of or loss of natural resources, or costs of any natural resource damage assessments.  “Environmental Liabilities” does not include any Liabilities related to, arising out of or resulting from the sale, distribution, use or misuse of products manufactured, serviced or distributed by the Business.

“Equity Interest” shall mean (a) any share, capital stock, partnership, limited liability company, member or similar equity interest in any Person, (b) any option, share of restricted stock, restricted stock unit, stock appreciation right, phantom stock, performance share or unit, warrant, right or other security (including debt securities) convertible, exchangeable or exercisable into or for any such share, capital stock, partnership, limited liability company, member or similar equity interest, (c) any preemptive, subscription, redemption, repurchase, or contingent value rights relating to equity interests in any Person and (d) any rights providing holders thereof to vote with the holders of shares, capital stock, partnership, limited liability company, member or similar equity interests.

“ERISA” means the Employee Retirement Income Security Act of 1974, as amended.

“ERISA Affiliate” means each entity that, together with any Transferred Entity, is treated as a single employer within the meaning of Section 4001(b)(1) of ERISA or Section 414(b), (c), (m) or (o) of the Code.

“Excluded Employees” means each individual who (i) is listed on Section 1.1(a) of the Parent Disclosure Schedule as of the date hereof or (ii) becomes listed, following the date hereof, on Section 1.1(a) of the Parent Disclosure Schedule with the consent of Purchaser (such consent not to be unreasonably withheld, conditioned or delayed).

“Existing Letters of Credit” shall mean any letter of credit, bank guarantee, indemnity or other such instrument issued under any document evidencing or relating to Indebtedness of a Transferred Entity.

“Foreign Entities” shall mean each Transferred Entity that is duly organized, validly incorporated, existing and in good standing under the Laws of a country other than the United States.

“Foreign Transfer Agreement” shall mean such agreements, powers of attorney, transfers, conveyances and other documents, in the form required pursuant to the relevant local Law and otherwise as may be agreed between Parent and the Purchaser between the date of this Agreement and the Closing, to implement the transfer of the Shares on the Closing.

“Fraud” shall mean an act, committed by Parent or Purchaser, that constitutes common law fraud under the Law of the State of Delaware, in the making of a representation or warranty expressly set forth in Article III or Article IV, as applicable, (a) with actual knowledge of such Person making such representation or warranty that such representation or warranty is false, (b) with an express intention to induce the Person to whom such representation or warranty is made to act or refrain from acting in reliance upon it, (c) causing that Person, in justifiable reliance upon such false representation or warranty and with no actual knowledge of the falsity of such representation, to take or refrain from taking action and (d) causing such Person to suffer damage as a result thereof.  For the avoidance of doubt, “Fraud” does not include equitable fraud, promissory fraud, unfair dealings fraud or any tort (including fraud), in each case, based on negligence or recklessness.  The party alleging Fraud shall have the burden of proof with respect to such allegation.

“GAAP” shall mean generally accepted accounting principles in the United States applied in a manner consistent with the manner in which it was applied in the preparation of the Business Audited Financial Statements.

“Governmental Entity” shall mean any foreign, domestic, supranational, federal, territorial, state or local governmental entity, quasi-governmental entity, court, tribunal, judicial or arbitral body, commission, board, bureau, agency or instrumentality, or any regulatory (including any stock exchange), administrative or other department, agency or any political or other subdivision, department or branch of any of the foregoing.

“HSR Act” shall mean the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended.

“Inactive Employee” means each Business Employee (other than a Transferred Entity Employee) who is receiving long-term disability benefits under a Seller Benefit Plan.

“Incidental IP Contracts” shall mean, with respect to any Person, (a) any Contract in which the only license to, or right to use, Intellectual Property granted in such Contract is incidental to the transaction contemplated to be conducted in such Contract, the commercial purpose of which is something other than such license, such as a service Contract under which such Person grants a third party a non-exclusive license under Intellectual Property to enable such third party to provide services for the benefit of such Person, (b) Contracts that include non-exclusive licenses or sublicenses to Intellectual Property granted to customers, suppliers, vendors, end-users, resellers or distributors in the ordinary course of business in connection with products and services, (c) Contracts with shareholders, directors, officers, employees, contractors and other representatives of such Person that assign rights in Intellectual Property from such individuals to such Person, (d) Contracts that include only “shrink wrap” or “click through” licenses or licenses for other generally commercially available software, and (e) nondisclosure agreements and confidentiality agreements, in each case of clause (a), clause (b), clause (c), clause (d) and clause (e), that are entered into in the ordinary course of business.

“Indebtedness” shall mean, with respect to a Person, as of any given time of determination, that are included in the line item categories of “Indebtedness” specifically identified in Annex B of Schedule II and calculated in accordance with the Accounting Principles, without duplication, and to the extent not included within such line items, shall also comprise (a) the amount of all indebtedness for borrowed money, including under any credit facilities (including any unpaid principal, reimbursements and all other amounts payable in connection therewith), (b) liabilities evidenced by bonds, debentures, notes or other similar debt instruments or debt securities, (c) any obligation evidenced by any surety bonds, performance bonds, letters of credit or bankers’ acceptances, in each case, solely to the extent drawn upon and recognizable on a balance sheet under GAAP, (d) any earned or accrued but unpaid severance non-qualified deferred compensation, pension or similar compensatory obligations, in each case, together with the employer portion of Taxes attributable thereto and, to the extent such Tax benefits are not included as a Transaction Tax Deduction in the Pre-Closing Period, calculated net of any Tax benefits reasonably expected to be realized by Purchaser (as determined by Purchaser in good faith) attributable to any Tax deduction resulting from the accrual or payment of such costs following the Closing Date, (e) all obligations issued or assumed as the deferred purchase price of assets, property, securities or services, including any earn out liabilities, seller notes, post-closing true-up obligations and other similar payments (whether contingent or otherwise), (f) all obligations required to be recorded as finance leases in accordance with GAAP as of the date of determination of such Indebtedness, and (g) in the case of items (a) through (f), including all accrued or unpaid interest thereon, if any, and any premium, fees, expenses and penalties (including prepayment and early termination fees) associated with the repayment of such Indebtedness if to be repaid pursuant to the terms of this Agreement on the Closing Date; provided that in no event will Indebtedness include (i) any amounts included in Parent Transaction Expenses, (ii) any liabilities related to intercompany debt to the extent solely among the Transferred Entities, (iii) any contingent reimbursement obligations for any letters of credit, performance bonds, surety bonds and similar obligations to the extent not drawn, or (iv) any liabilities under any lease classified as an operating lease.

“Information Security Incident” shall mean (a) any cybersecurity incident, breach of security, phishing incident, network intrusion, ransomware or malware attack, or similar adverse incident affecting any Business System, product or service, or (b) the unlawful destruction, loss, alteration, unauthorized disclosure, exfiltration, or theft of, or access to, Personal Data, including similar terms under Data Protection Laws.

“Intellectual Property” shall mean any and all statutory or common law rights throughout the world in, arising out of, related to or associated with the following: (a) all issued or pending U.S. and foreign patents, patent applications, statutory invention registrations, registered designs or similar rights anywhere in the world in inventions and designs and all related divisionals, continuations, continuations-in-part, reissues, extensions, substitutions and reexaminations, applications for any of the foregoing and all rights therein (“Patents”); (b) trademarks, service marks, trade dress, trade names, brand names, slogans, logos and corporate names and other similar indicia of source or origin and all registrations and applications for registration thereof, together with the goodwill symbolized by any of the foregoing (“Marks”); (c) World Wide Web addresses, domain names, social media identifiers (such as X (formerly known as Twitter®), Threads® or Instagram® handles) and applications and registrations therefor (“Internet Properties”); (d) copyrights, registrations and applications for registration thereof and all issuances, extensions and renewals thereof, and any equivalent rights in works of authorship; (e) rights in Software; and (f) trade secrets and other rights in confidential proprietary information, including know-how, inventions, processes, formulae, models and methodologies, techniques, protocols, source code, algorithms, layouts, specifications, data and databases, processes, designs, technical information, drawings and blueprints.

“Intellectual Property Assignment Agreement” shall mean Intellectual Property Assignment Agreement by and between Parent or one or more of its Affiliates, on one hand, and Purchaser (or one of its Affiliates), on the other hand, to be entered into at the Closing substantially in the form of Exhibit A hereto.

“Intellectual Property Cross License Agreement” shall mean the Intellectual Property Cross License Agreement to be entered into at the Closing substantially in the form of Exhibit B hereto.

“International Traffic in Arms Regulations” shall mean 22 C.F.R. Parts 120-130.

“Knowledge of Parent” shall mean the actual knowledge (after due inquiry of direct reports) (and in no event encompassing constructive, imputed or similar concepts of knowledge) of the Persons listed on Section 1.1(c) of the Parent Disclosure Schedule, and each such Person’s replacement in his or her position(s), if any.

“Knowledge of Purchaser” shall mean the actual knowledge (after due inquiry of direct reports) (and in no event encompassing constructive, imputed or similar concepts of knowledge) of the Persons listed on Section 1.1(a) of the Purchaser Disclosure Schedule, and each such Person’s replacement in his or her position(s), if any.

“Law” shall mean any federal, state, local, foreign or supranational law, statute, regulation, ordinance, rule, Order or decree by any Governmental Entity.

“Liability” shall mean all Indebtedness, obligations and other liabilities, whether absolute, accrued, matured, contingent (or based upon any contingency), known or unknown, fixed or otherwise, or whether due or to become due, including any fines, penalties, losses, costs, interest, charges, expenses, damages, assessments, deficiencies, judgments, awards, settlements, any form of injunctive relief or prohibitions.

“Liens” shall mean all liens, pledges, charges, claims, security interests, purchase agreements, options, restrictions on transfer or other encumbrances.

“Listed Intellectual Property” shall mean all Business Intellectual Property that is owned by Parent or its Affiliates (other than the Transferred Entities).

“Losses” shall mean all losses, damages, penalties, Liabilities, fines, costs and expenses (including reasonable attorneys’ fees), incurred (whether or not due for payment) or suffered by a Parent Indemnified Party or a Purchaser Indemnified Party, as applicable, in each case subject to the limitations and exclusions set forth in Section 10.7.

“Malicious Code” shall mean any surreptitious computer code or other software routines or hardware components intentionally designed to permit unauthorized access to, disable or erase software, hardware or data, or to perform any other similar type of unauthorized activities (including viruses, Trojan horses, worms or other similar code, designs or routines).

“Net Indebtedness” shall mean an amount, which may be positive or negative, equal to (a) Indebtedness of the Transferred Entities, as of immediately prior to Closing minus (b) Cash.

“New Italian Branch” shall mean the new Italian branch formed in accordance with the Separation Plan.

“Noel Assets” shall mean, as the same shall exist immediately prior to the Closing, all of Parent’s and its Subsidiaries’ right, title, and interest in the assets and properties listed on Schedule I.

“Noel Liabilities” shall mean:

(a)          all Liabilities of Parent and its Subsidiaries, to the extent arising from or related to the Noel Assets or the Business, as the same shall exist on or after the Closing Date and irrespective of whether the same shall arise prior to, on or following the Closing Date;

(b)         all Liabilities of a type reflected in Working Capital on the Final Closing Statement;

(c)         all Liabilities arising under any of the Transferred Contracts;

(d)         all Liabilities for Taxes imposed in respect of any Noel Assets, the Business or any Transferred Entity for any taxable period (or portion thereof);

(e)         all Liabilities, whether arising prior to, on or after the Closing Date, (i) (A) under Environmental Laws, including those relating to the environment or natural resources, human health and safety or Regulated Substances and (B) arising from or relating to the Noel Assets, the Business or otherwise to any past, current or future businesses, operations or properties of or associated with the Noel Assets or the Business (including any businesses, operations or properties for which a current or future owner or operator of the Noel Assets or the Business may be alleged to be responsible as a matter of Law, contract or otherwise) or (ii) relating to the use, application, malfunction, defect, design, operation, performance or suitability of any product sold or distributed prior to the Closing by, or service rendered prior to the Closing related to the Business (including any products for which a current or future owner or operator of the Noel Assets or the Business may be alleged to be responsible as a matter of Law, contract or otherwise); except, in the case of each of (i) and (ii), for any Liability relating to, arising out of, or resulting from, the matters set forth on Schedule IV; and

(f)          all Liabilities, whether arising prior to, on or after the Closing Date, (i) relating to, arising out of or resulting from the employment or services, or termination of employment or services, of each current and former employee and service provider who provides or provided services to the Business, in each case, other than (except as otherwise expressly provided in this Agreement) those Liabilities arising under a Seller Benefit Plan or a Defined Benefit Pension Plan and (ii) with respect to each Transferred Entity Benefit Plan;

provided that in no event will the Noel Liabilities include any Liability (whether the same shall arise prior to, on or following the Closing Date) arising from or related to (i) any portion of the Noel Shared Contracts to the extent not attributable to the Business at Closing, as dealt with in accordance with Section 5.5(d), (ii) any Parent Tax Liabilities or (iii) any Carrier Liabilities, including any Liability relating to, arising out of, or resulting from, the matters set forth on Schedule IV and Schedule VI.

“Offer Employee” means each Business Employee who is not a Transferred Entity Employee or an Automatic Transfer Employee.

“Open Source Software” shall mean any Software that is licensed pursuant to a license now or in the future approved by the Open Source Initiative and listed at http://www.opensource.org/licenses/alphabetical or that is considered “free” or “open source software” by the Free Software Foundation.

“Order” shall mean any order, decision, judgment, writ, injunction, stipulation, award, or decree, whether civil, criminal or administrative, made, issued, entered or rendered.

“Parent Group” shall mean Parent and its Affiliates (other than any Transferred Entity).

“Parent Tax Liability” shall mean (a) all Taxes relating to, arising out of, or resulting from the Pre-Closing Restructuring, (b) all Transfer Taxes for which Parent is responsible pursuant to Section 7.9, (c) any Taxes imposed on Purchaser or any of its Affiliates (including, after the Closing, the Transferred Entities) with respect to Parent’s or any of its Affiliates’ income or gain on the transfer (whether direct or indirect) pursuant to this Agreement of the equity of the Transferred Entities, to the extent not withheld pursuant to Section 7.10 (such clause (c), the “Specified Tax Liability”) and (d) any Taxes imposed on Purchaser or any of its Affiliates (including, after the Closing, the Transferred Entities) with respect to the Retained Businesses of Parent or any of its Affiliates (other than the Transferred Entities); provided, that, Parent Tax Liability shall exclude any amount of Taxes to the extent such amount was specifically taken into account in the determination of Working Capital or Indebtedness, as finally determined pursuant to Article II.

“Parent Transaction Expenses” shall mean, without duplication, all liabilities incurred by the Transferred Entities and any member of the Parent Group for fees, expenses, costs or charges as a result of the contemplation, negotiation, efforts to consummate or consummation of the transactions contemplated by this Agreement and the Ancillary Agreements, including: (a) any fees and expenses of consultants, investment bankers, brokers, financial advisors, attorneys, accountants or other advisors, and any fees payable by such parties to any Governmental Entity or other third parties, in each case, in connection with the consummation of the transactions contemplated by this Agreement and the Ancillary Agreements and (b) the Retention Bonuses and all other transaction-related bonuses, retention payments, severance, change in control, discretionary, sale or similar bonuses or payments that vest or become payable to employees and other service providers of the Transferred Entities solely as a result of the Closing, plus the employer portion of payroll Taxes to be imposed thereon (other than as a result of Purchaser’s decision to terminate employees at or after Closing); provided, that, for the avoidance of doubt, Parent Transaction Expenses shall not include (A) Liabilities related to the D&O Tail or Competition and Foreign Investment Expenses, (B) any amounts to the extent included in Indebtedness of the Transferred Entities, as of immediately prior to Closing, Cash or Working Capital or (C) any amounts expressly set forth in this Agreement as being borne by Purchaser.

“Permits” shall mean all (a) licenses, permits, franchises, approvals, registrations, authorizations, consents or orders of, or filings with, any Governmental Entity and (b) material product accreditations and other certifications required for the Business to manufacture, fabricate, sell or distribute (as applicable) its Products and conduct its Business.

“Permitted Liens” shall mean (a) statutory Liens of landlords and mechanics’, carriers’, workmen’s, repairmen’s, warehousemen’s, materialmen’s or other like Liens arising or incurred in the ordinary course of business, Liens arising under original purchase price conditional sales contracts and equipment leases with third parties entered into in the ordinary course of business, (b) Liens for Taxes, assessments or other governmental charges or levies that are not delinquent or that are being contested by appropriate Actions, in each case, for which adequate reserves have been established in accordance with GAAP, (c) Liens disclosed on or reflected in the Business Audited Financial Statements (including in the notes thereto), (d) defects or imperfections of title or other Liens not materially interfering with the ordinary conduct of the Business as a whole, (e) leases, subleases and similar agreements with respect to the Business Leased Real Property, (f) Liens, easements, covenants, rights-of-way, restrictions of record and other similar charges listed in Schedule B of the applicable title insurance policies, not materially interfering with the ordinary conduct of the Business as a whole, (g) any matters or conditions that would be shown by a current, accurate survey or physical inspection of any Business Leased Real Property not materially interfering with the ordinary conduct of the Business as a whole, (h) zoning, building and other similar restrictions, (i) Liens that have been placed by any developer, landlord or other third party on property owned by third parties or Liens in favor of the landlords and licensors under leases and licenses, not materially interfering with the ordinary conduct of the Business as a whole, (j) Liens incurred or deposits made in connection with workers’ compensation, unemployment insurance or other types of social security, (k) Liens not created by Parent or any of its Subsidiaries that affect the underlying fee interest of any Business Leased Real Property not materially interfering with the ordinary conduct of the Business as a whole, (l) Liens created under federal, state or foreign securities Laws and (m) licenses or other rights granted to Intellectual Property.

“Person” shall mean an individual, partnership (general or limited), corporation, limited liability company, joint venture, association or other form of business organization (whether or not regarded as a legal entity under applicable Law), trust or other entity or organization, including a Governmental Entity or works council.

“Personal Data” shall mean any information that identifies, relates to, or describes, an identified or identifiable individual or is otherwise afforded protection under Data Protection Laws, which may be defined as Personal Data, Personally Identifiable Information, Personal Information or similar term by the Data Protection Laws.

“Phase II Environmental Site Assessment” shall mean any investigation or sampling of the Environment or building materials.

“Post-Closing Period” shall mean any taxable period (or portion thereof) beginning after the Closing Date.

“Pre-Closing Period” shall mean any taxable period (or portion thereof) ending on or prior to the Closing Date, including the portion of any Straddle Period ending on the Closing Date.

“Processing” (and its cognates) shall mean, in addition to any definition for any similar term provided by Data Protection Laws, any operation or set of operations which is performed on Personal Data or on sets thereof, whether or not by automated means, including collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.

“Purchaser Material Adverse Effect” shall mean any event, circumstance, condition, change, development or effect that is or would reasonably be expected to be, individually or in the aggregate, materially adverse to, or materially delay, the ability of Purchaser to perform its obligations under this Agreement or to consummate the Closing.

“Regulated Substance” shall mean any (a) hazardous substance, hazardous waste, pollutant or contaminant as defined by any Environmental Law, (b) gasoline, diesel fuel, motor oil, waste or used oil, heating oil, kerosene and any other petroleum product, (c) regulated asbestos-containing material as defined by local Environmental Laws and (d) polychlorinated biphenyls, methane, radon or per- or poly-fluorinated alkyl substances.

“Remedial Action” shall mean any and all actions to (a) investigate, clean up, remediate, remove, treat, monitor, contain or in any other way address any Regulated Substance in the environment, (b) prevent the release or threat of release or minimize the further release of a Regulated Substance so it does not migrate or endanger public health or welfare or the environment and (c) perform pre-remedial studies and investigations and post-remedial monitoring, maintenance and care.  The term “Remedial Action” includes any action that constitutes a “removal,” “remedial action” or “response” (or equivalent terms) as defined by local Environmental Laws; and a “corrective action” (or equivalent term) as defined in local Environmental Laws.

“Representatives” shall mean, with respect to any Person, such Person’s Affiliates and its and its Affiliates’ respective directors, officers, employees, members, owners, partners, accountants, consultants, advisors, attorneys, agents and other representatives.

“Restricted Cash” means any cash of the Transferred Entities that is not freely usable as a result of any restrictions, limitations or Taxes on use or distribution by Law or Contract, including the amount of any Taxes that would be payable upon the repatriation (as of the Closing Date) of any cash or cash equivalents held by a non-U.S. Person in an account outside of the United States.

“Restricted Person” means any Person identified on the U.S. Department of Commerce’s Entity List, Denied Persons List, Unverified List or Military End User List, or the U.S. Department of State’s Debarred List.

“Retained Businesses” shall mean all businesses of the Parent Group and its Affiliates (other than the Business), including, for the avoidance of doubt, the Specified Retained Businesses.

“Retention Bonuses” shall mean means the aggregate amount payable in connection with or following the Closing under the agreements listed on Section 1.1(d) of the Parent Disclosure Schedule.

“Sanctioned Jurisdiction” means, at any time, a country or territory which is itself the subject or target of any country-wide or territory-wide Sanctions and Export Control Laws (at the time of this Agreement, Crimea, Cuba, Iran, North Korea, Syria, the so-called Donetsk People’s Republic, the so-called Luhansk People’s Republic, and the Crimea regions of Ukraine, and the non-government-controlled areas of the Kherson and Zaporizhzhia oblasts of Ukraine).

“Sanctioned Person” means any Person subject to Sanctions, including as a result of being (a) listed in any list of sanctioned Persons, including those maintained by the United States (including the Department of the Treasury’s Office of Foreign Assets Control and the Department of State), the United Kingdom, the European Union and its Member States, Canada or Switzerland; (b) located, organized, or resident in a Sanctioned Jurisdiction; or (c) directly or indirectly owned fifty percent or more or controlled, individually or in the aggregate, by one or more Persons described in the foregoing clauses (a) and/or (b).

“Sanctions and Export Control Laws” means any applicable Law related to (a) import and export controls, including the U.S. Export Administration Regulations, (b) economic or financial sanctions and trade embargoes, including those administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury, the U.S. Department of State, the European Union and its Member States, Canada, Switzerland, the United Nations, and the United Kingdom or (c) anti-boycott measures.

“SEC” shall mean the United States Securities and Exchange Commission.

“Securities Act” shall mean the U.S. Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.

“Seller Benefit Plan” shall mean each Benefit Plan that is not a Transferred Entity Benefit Plan.

“Seller Group” shall mean, collectively, the Persons set forth on Schedule V, which are Subsidiaries of Parent and own the Shares of the Transferred Companies as set forth on Schedule V (taking into account and giving effect to the Pre-Closing Restructuring).

“Separation Date” shall mean April 3, 2020.

“Software” shall mean all computer software, data and databases, operating systems, tools, interfaces, firmware, middleware, modules, models, algorithms and routines (in each case, as applicable, in source code and object code form) and all documentation and materials relating to any of the foregoing.

“Specified Retained Business” shall mean each of Parent’s HVAC and Refrigeration segments and all businesses that are a part thereof, including Abound, Aritech, Automated Logic, Autronica, Cold Chain, Det-Tronics, EcoEnergy, Edwards, Fenwal, Fireye, GST, Kidde, Kidde-Fenwal, Marioff, Nlyte Software, Sensitech and UTEC.

“Straddle Period” shall mean any taxable period beginning on or before the Closing Date and ending after the Closing Date.

“Subsidiary” shall mean, with respect to any Person, any corporation, entity or other organization, whether incorporated or unincorporated, of which (a) such first Person directly or indirectly owns or controls at least a majority of the securities or other interests having by their terms ordinary voting power to elect a majority of the board of directors or others performing similar functions or (b) such first Person is a general partner or managing member.

“Target Working Capital Amount” shall mean $36,000,000.00.

“Tax” shall mean any tax of any kind, including any federal, state, local or foreign income, profits, license, severance, occupation, windfall profits, capital gains, capital stock, transfer, registration, social security (or similar), workers’ compensation, unemployment compensation, production, franchise, gross receipts, payroll, sales, employment, use, property, excise, value-added, estimated, stamp, alternative or add-on minimum, ad valorem, business, environmental or withholding tax or any tax enacted as a result of the OECD/G20 Inclusive Framework’s Global Anti-Base Erosion Rules and any other duty, assessment or other governmental charge, together with all interest, penalties additions to Tax and additional amounts imposed with respect thereto.

“Tax Claim” shall mean any claim, audit, Action, examination, investigation or inquiry contest made by a Taxing Authority with respect to Taxes payable by or with respect to the Transferred Entities or with respect to the Business, the Noel Assets or the Noel Liabilities.

“Tax Proceeding” shall mean any audit, Action, examination, investigation, inquiry, contest, litigation or other proceeding with or against any Taxing Authority.

“Tax Return” shall mean any return, declaration, report, claim for refund, information return, statement, schedule, form, notice or other document or information (including any exhibits or supplements thereto) filed with or supplied to, or required to be filed with or supplied to, any Taxing Authority, including any amendment thereof.

“Tax Sharing Agreement” shall mean any Tax sharing, Tax indemnity, Tax allocation or similar agreement or Contract, excluding customary commercial agreements entered into in the ordinary course of business the primary purpose of which does not relate to Taxes.

“Taxing Authority” shall mean the Internal Revenue Service (“IRS”) or any other Governmental Entity that has or is exercising power to impose, assess, determine, administer or collect any Taxes.

“Transaction Tax Deductions” means, without duplication, the sum of all items of loss, deduction or credit of the Transferred Entities for applicable Tax purposes resulting from or attributable to: (i) Parent Transaction Expenses and (ii) all fees, expenses and interest (including amounts treated as interest for U.S. federal income tax purposes, but excluding any interest that accrued under the terms of the applicable debt instrument through the Closing Date), original issue discount, unamortized debt financing costs, breakage fees, tender premiums, consent fees, redemption, retirement or make-whole payments, defeasance in excess of par or similar amounts, in each case to the extent accrued or paid in connection with the repayment of the Indebtedness of the Transferred Entities in connection with the Closing, in the case of each of clauses (i) and (ii), only to the extent applicable fees, expenses and interest giving rise to the items of loss, deduction or credit were economically borne by Parent or its Affiliates (other than the Transferred Entities), either because such amounts were included as a reduction to the Final Purchase Price (including by their inclusion as a Liability in the determination of Working Capital or Indebtedness used to determine Final Purchase Price) or were paid by Parent or its Affiliates (including the Transferred Entities) prior to Closing.

“Transfer Regulation” means, (a) with respect to France, Article L.1224-1 and any and all related provisions of the French Labor Code, (b) with respect to any country implementing the Acquired Rights Directive (as defined below), the Council Directive 2001/23/EEC of 12 March 2001 on the approximation of the laws of the EU Member States relating to the safeguarding of employees’ rights in the event of transfers of undertakings, businesses or parts of businesses (the “Acquired Rights Directive”) and the legislation and regulations of any EU Member State or the United Kingdom implementing such Acquired Rights Directive; and (c) any other automatic transfer, employer substitution and similar Laws and regulations in jurisdictions with Business Employees which effects the automatic transfer of employees in the event of transfers of undertakings, businesses or parts.

“Transferred Business Employee” means each (a) Transferred Entity Employee, (b) Offer Employee (including Delayed Transfer Employee) and (c) Automatic Transfer Employee, in each case, who becomes employed by Purchaser or any of its Affiliates (including the Transferred Entities) pursuant to Section 6.1 of this Agreement.

“Transferred Company” shall mean each Person listed on Section 3.1(a) of the Parent Disclosure Schedule and any newly-formed entities to be transferred directly to Purchaser pursuant to the Pre-Closing Restructuring.

“Transferred Company Subsidiary” shall mean, with respect to each Transferred Company, each Subsidiary of such Transferred Company as of the Closing, which Persons are listed on Section 3.1(b) of the Parent Disclosure Schedule.

“Transferred Contract” shall mean (i) any Contract or agreement to which a Transferred Entity is a party and (ii) any Contract or agreement that is a Noel Asset.

“Transferred Entity Benefit Plan” shall mean each Benefit Plan that is (i) sponsored, maintained or contributed to solely by one or more Transferred Entities or (ii) that is exclusively for the benefit of the Business Employees and/or former employees of the Business and is listed on Section 1.1(e) of the Parent Disclosure Schedule.  For the avoidance of doubt, the Benefit Plans listed on Section 1.1(e) of the Parent Disclosure Schedule shall be considered a Transferred Entity Benefit Plan.

“Transferred Entity Employee” shall mean each employee (including any employee on an approved leave of absence) of a Transferred Entity as of the date of this Agreement.

“Transition Services Agreement” shall mean the Transition Services Agreement to be entered into at the Closing substantially in the form of Exhibit C hereto.

“Treasury Regulations” shall mean the regulations promulgated or proposed by the U.S. Treasury Department under the Code.

“United States” shall mean the United States of America, including any State thereof and the District of Columbia.

“UPE” shall mean, with respect to any Person, the “ultimate parent entity” of such Person as that term is defined in the HSR Act and its implementing regulations.

“VAT” shall mean (i) within the United Kingdom, any value-added tax imposed by the VAT Act 1994 and any subordinate legislation or regulation made pursuant thereto, (ii) within the European Union, such taxation as may be levied in accordance with (but subject to derogations from) EU Directive 2006/112/EC and (iii) outside the United Kingdom and the European Union, any similar taxation levied by reference to added value of sales.

“Willful Breach” shall mean any breach of this Agreement that is the consequence of an action or omission by any party that knew or should have known that the taking of such action or the failure to take such action would be a breach of this Agreement.

“Working Capital” shall mean (a) the assets of the Transferred Entities, as of immediately prior to the Closing, that are included in the line item categories of assets specifically identified in Annex A of Schedule II reduced by (b) the liabilities of the Transferred Entities, as of immediately prior to the Closing, that are included in the line item categories of liabilities specifically identified in Annex A of Schedule II, in each case calculated in accordance with the Accounting Principles; provided, that in no event shall “Working Capital” include (A) any amounts to the extent included in or with respect to (i) Indebtedness of the Transferred Entities, as of immediately prior to Closing, Cash or Parent Transaction Expenses, (ii) amounts outstanding pursuant to intercompany accounts, arrangements, understandings or Contracts to be settled or eliminated at or prior to the Closing pursuant to Section 5.7 or Section 5.8, (iii) Carrier Assets or Carrier Liabilities or (iv) Liabilities or payments that are expressly required to be paid at or following the Closing by Parent or any of its Affiliates pursuant to this Agreement or (B) any amounts in respect of any line items not specifically identified in Annex A of Schedule II; provided, further, that in no event shall “Working Capital” include any amounts with respect to deferred Tax assets or deferred Tax Liabilities.

Section 2.1          Sale and Purchase of Shares.  Upon the terms and subject to the conditions set forth in this Agreement, at the closing of the transactions contemplated by this Agreement (the “Closing”), Parent shall, or shall cause the Seller Group to, sell, transfer, convey, assign and deliver to Purchaser, and Purchaser shall purchase and acquire from the Seller Group, all of the Seller Group’s right, title and interest in and to the Shares (the “Sale”).

Section 2.2          Closing Purchase Price.  In consideration for the Shares, at the Closing, Purchaser shall deliver to Parent (or Parent’s designee(s)), in cash, an aggregate amount equal to (a) $4,950,000,000.00, plus (b) the difference of (i) the Closing Working Capital Adjustment Amount, minus (ii) the Net Indebtedness Adjustment Amount (which difference, determined pursuant to this clause (b), may be positive or negative).  The aggregate amount determined pursuant to the first sentence of this Section 2.2 is referred to as the “Closing Purchase Price.”  “Closing Working Capital Adjustment Amount” shall mean an amount, which may be positive or negative, that shall be equal to (i) the amount of Working Capital set forth in the Estimated Closing Statement, minus (ii) the Target Working Capital Amount.  “Net Indebtedness Adjustment Amount” shall mean an amount, which may be positive or negative, if any, of Net Indebtedness set forth in the Estimated Closing Statement.

Section 2.3          Closing.

(a)          The Closing shall take place (i) at the offices of Paul, Weiss, Rifkind, Wharton & Garrison LLP, 1285 Avenue of the Americas, New York, New York 10019, at 10:00 a.m., New York time, on the first (1^st) Business Day of the month following the month during which all of the conditions set forth in Article VIII (other than those conditions that by their nature are to be satisfied or waived on the Closing Date, but subject to the satisfaction or waiver of those conditions) are satisfied or waived; provided, that, if the date of such satisfaction or waiver is one of the last five (5) Business Days of any month, then Parent shall have the right to defer the Closing to the first (1^st) Business Day of the second (2^nd) month following the month during which such date occurs, or (ii) at such other place, time or date as may be mutually agreed upon in writing by Parent and Purchaser.  The date on which the Closing occurs is referred to as the “Closing Date.”

(b)          At the Closing:

Section 2.4          Closing Working Capital and Net Indebtedness Adjustments.

(a)          Not less than five (5) Business Days prior to the anticipated Closing Date, Parent shall provide Purchaser with a good faith estimate (together with reasonable supporting documentation and calculations with respect thereto) of each of (i) Working Capital, (ii) Cash and (iii) Indebtedness of the Transferred Entities, as of immediately prior to Closing (collectively, the “Estimated Closing Statement”), which shall be accompanied by a notice that sets forth (x) Parent’s determination of the Closing Working Capital Adjustment Amount and Net Indebtedness Adjustment Amount and the Closing Purchase Price after giving effect to the Closing Working Capital Adjustment Amount and Net Indebtedness Adjustment Amount and (y) the account or accounts to which Purchaser shall transfer the Closing Purchase Price pursuant to Section 2.3.

(b)          The Estimated Closing Statement shall be prepared in good faith in accordance with the Accounting Principles attached as Schedule II hereto (the “Accounting Principles”).  For illustrative purposes only, Annex A and Annex B of Schedule II set forth a calculation of Working Capital and Net Indebtedness, respectively, in each case as of September 30, 2023.  Not less than two (2) Business Days prior to the anticipated Closing Date, the Purchaser may provide Parent with any reasonable comments that it has regarding the Estimated Closing Statement, which Parent shall consider in good faith; provided, that the foregoing shall not delay the Closing.

Section 2.5          Post-Closing Statements.

(a)          Within sixty (60) Business Days after the Closing Date, Purchaser shall prepare in good faith and deliver to Parent a statement of (i) Working Capital, (ii) Cash and (iii) Indebtedness of the Transferred Entities, as of immediately prior to Closing (collectively, the “Initial Closing Statement”); provided, that if Purchaser and the Transferred Entities fail to provide access in accordance with Section 2.5(b), such time period shall be automatically extended by the length of time it takes Purchaser and the Transferred Entities to provide such access.  The Initial Closing Statement shall be prepared in good faith in accordance with the Accounting Principles.

(b)          Following the delivery of the Initial Closing Statement through the date that the Final Closing Statement has become final and binding in accordance with Section 2.6(c), Parent and its Representatives shall be permitted to access and review the books, records and work papers of the Transferred Entities that are reasonably related to the calculations of Working Capital and Net Indebtedness, and Purchaser shall, and shall cause its Subsidiaries (including the Transferred Entities) and its and their respective employees, accountants and other Representatives to, reasonably cooperate with and assist Parent and its Representatives in connection with such review, including by providing access to such books, records, work papers and making available personnel to the extent requested, in each case, upon reasonable notice and during normal business hours.

(c)          Purchaser agrees that, following the Closing through the date that the Final Closing Statement becomes final and binding in accordance with Section 2.6(c), it will not take or permit to be taken any actions with respect to any accounting books, records, policies or procedures on which the Initial Closing Statement is based, or on which the Final Closing Statement is to be based, that are inconsistent with the Accounting Principles or that would impede or unreasonably delay the determination of the amount of Working Capital or Net Indebtedness or the preparation of any Notice of Disagreement or the Final Closing Statement in the manner and utilizing the methods provided by this Agreement.

(a)          Parent shall notify Purchaser in writing no later than thirty (30) Business Days after Parent’s receipt of the Initial Closing Statement if Parent disagrees with the Initial Closing Statement, which notice shall describe in reasonable detail the basis for such disagreement (the “Notice of Disagreement”).  If no Notice of Disagreement is delivered to Purchaser within such period, then the Initial Closing Statement shall become final and binding upon the parties in accordance with Section 2.6(c).  If a Notice of Disagreement is delivered to Purchaser within such period, then only such portions of the Initial Closing Statement that Parent does not identify or disagree with in the Notice of Disagreement shall become final and binding upon the parties in accordance with Section 2.6(c).

(b)          During the thirty (30) days immediately following the delivery of a Notice of Disagreement (the “Resolution Period”), Parent and Purchaser shall seek in good faith to resolve any differences that they may have with respect to the matters identified in the Notice of Disagreement.

(c)          If, at the end of the Resolution Period, Parent and Purchaser have been unable to resolve any differences that they may have with respect to the matters identified in the Notice of Disagreement, Parent and Purchaser shall submit all matters that remain in dispute with respect to the Notice of Disagreement to Grant Thornton LLP or, if such firm is unwilling or unable to fulfill such role, (i) another internationally-recognized independent certified public accounting firm mutually acceptable to Parent and Purchaser or (ii) if Parent and Purchaser are unable to agree upon another such firm within ten (10) Business Days after the end of the Resolution Period, then within an additional ten (10) Business Days, Parent and Purchaser shall each select one such firm and those two firms shall, within ten (10) Business Days after their selection, select a third (3^rd) such firm (Grant Thornton LLP, the firm selected in accordance with clause (i) or the third firm selected in accordance with clause (ii), as applicable, the “Independent Accounting Firm”).  Within thirty (30) days after the Independent Accounting Firm’s selection, the Independent Accounting Firm shall make a final determination in accordance with the Accounting Principles and based solely on the definitions and other applicable provisions of this Agreement, and the written submissions of the parties (which written submissions shall be distributed by the Independent Accounting Firm to each party), of the appropriate amount of each of the matters that remain in dispute solely to the extent indicated in the Notice of Disagreement that Parent and Purchaser have timely submitted to the Independent Accounting Firm.  The Independent Accounting Firm shall act as an expert and not as an arbitrator.  With respect to each disputed matter, such determination, if not in accordance with the position of either Parent or Purchaser, shall not be in excess of the higher, or less than the lower, of the amounts advocated by Parent in the Notice of Disagreement or by Purchaser in the Initial Closing Statement with respect to such disputed matter, and such determinations shall be set forth in a written statement setting forth in reasonable detail the basis for the Independent Accounting Firm’s determination with respect to each disputed matter.  None of Purchaser, Parent, the Transferred Entities, nor any of its or their Representatives shall have ex parte communications with the Independent Accounting Firm relating to this Section 2.6(c) or this Agreement, and the Independent Accounting Firm shall not conduct an independent investigation in respect of its determination.  For the avoidance of doubt, the Independent Accounting Firm shall not review or make any determination with respect to any matter other than the matters that remain in dispute to the extent indicated in the Notice of Disagreement and shall not consider any events or developments that occurred after the Closing.  The Initial Closing Statement as finally determined either through agreement of the parties pursuant to Section 2.6(a) or Section 2.6(b) or through the action of the Independent Accounting Firm pursuant to this Section 2.6(c), shall be the “Final Closing Statement.”

(d)          The fees and expenses of the Independent Accounting Firm, and of any expert, consultant or legal advisor retained by Purchaser or Parent in connection with the Notice of Disagreement and resolution thereof, shall be borne by Purchaser and Parent in a proportion as is appropriate to reflect their relative success in the resolution of the dispute; for example, if Purchaser challenges the calculation of the Final Purchase Price by an amount of $100,000, but the Independent Accounting Firm determines that Purchaser has a valid claim for only $70,000, then Parent shall bear seventy percent (70%) of such fees and expenses and Purchaser shall bear the other thirty percent (30%) of such fees and expenses.  During the review by the Independent Accounting Firm, each of Purchaser and Parent shall, and shall cause its respective Subsidiaries (including, in the case of Purchaser, the Transferred Entities) and its and their respective employees, accountants and other Representatives to, each make available to the Independent Accounting Firm interviews with such personnel, and such information, books and records and work papers, as may be reasonably requested by the Independent Accounting Firm to fulfill its obligations under Section 2.6(c); provided, that the accountants of Parent or Purchaser shall not be obliged to make any work papers available to the Independent Accounting Firm except in accordance with such accountants’ normal disclosure procedures and then only after such Independent Accounting Firm has signed a customary agreement relating to such access to work papers.  In acting under this Agreement, the Independent Accounting Firm shall be entitled to the privileges and immunities of an arbitrator.

(e)          The process set forth in Section 2.5 and this Section 2.6 shall be the sole and exclusive remedy of any of the parties and their respective Affiliates for any disputes related to the Closing Working Capital Adjustment Amount and Net Indebtedness Adjustment Amount, the Post-Closing Adjustment and the calculations and amounts on which they are based or set forth in the related statements and notices delivered in connection therewith, whether or not the underlying facts and circumstances constitute a breach of any representations or warranties contained in this Agreement; provided, however, that this Section 2.6(e) shall not prohibit Parent or Purchaser, as applicable, from instituting an Action to enforce any final determination of the Final Purchase Price by the Independent Accounting Firm pursuant to this Section 2.6(e), or to compel any party to submit any dispute arising in connection with this Section 2.6(e), in any court or other tribunal of competent jurisdiction in accordance with Section 11.3.  The substance of the Independent Accounting Firm’s determination shall be final, binding and non-appealable, absent a showing of manifest error or fraud.  It is the intent of the parties to have any final determination of the Final Purchase Price by the Independent Accounting Firm proceed in an expeditious manner; provided, however, any deadline or time period contained herein may be extended or modified by the written agreement of Parent and Purchaser, and the parties agree that the failure of the Independent Accounting Firm to conform to any deadline or time period contained herein shall not be a basis for seeking to overturn any determination rendered by the Independent Accounting Firm which otherwise conforms to the terms of this Section 2.6.

Section 2.7          Post-Closing Adjustment.  The “Post-Closing Adjustment” may be either a positive or negative amount, and shall be equal to the sum of (a) (i) the amount of Working Capital set forth in the Final Closing Statement, minus (ii) the amount of Working Capital set forth in the Estimated Closing Statement, plus (b) (i) the amount of Net Indebtedness set forth in the Estimated Closing Statement, minus (ii) the amount of Net Indebtedness set forth in the Final Closing Statement.  If the Post-Closing Adjustment is a positive amount, then Purchaser shall pay in cash to Parent (or one or more Affiliates designated by Parent) the absolute value of the amount of the Post-Closing Adjustment.  If the Post-Closing Adjustment is a negative amount, then Parent (or an Affiliate designated by Parent) shall pay in cash to Purchaser the absolute value of the amount of the Post-Closing Adjustment.  The Closing Purchase Price, as adjusted by the Post-Closing Adjustment, shall be the “Final Purchase Price.”  Any such payment pursuant to this Section 2.7 shall be made by wire transfer of immediately available funds within five (5) Business Days after the determination of the Final Closing Statement to an account designated in writing by the party entitled to the payment within three (3) Business Days after the determination of the Final Closing Statement.

Section 2.8          Foreign Transfer Agreements.  The purchase and acquisition of the Foreign Entities at the Closing will, to the extent required by applicable Law, be effected pursuant to the relevant Foreign Transfer Agreements on a country-by-country basis.  The Foreign Transfer Agreements shall not have any effect on the value being given or received to any Transferred Entity by Parent and Purchaser which shall be determined solely in accordance with this Agreement and in the event of any conflicts between any Foreign Transfer Agreement and this Agreement, the terms of this Agreement shall control in all respects.  Parent and Purchaser shall not, and shall cause their respective Affiliates not to, bring any Action under any Foreign Transfer Agreement.

Except as (a) disclosed in the reports, schedules, forms, statements and other documents filed by Parent with, or furnished to, the SEC and publicly available at least two (2) Business Days prior to the date of this Agreement (excluding any disclosures set forth in any section entitled “Risk Factors” or “Forward Looking Statements” or in any other section to the extent they are forward-looking statements or cautionary, predictive or forward-looking in nature) or (b) disclosed in the disclosure schedule delivered to Purchaser prior to the execution of this Agreement (the “Parent Disclosure Schedule”), it being agreed that disclosure of any item in any section or subsection of the Parent Disclosure Schedule shall also be deemed disclosure with respect to any other section or subsection of this Agreement to which the relevance of such item is reasonably apparent on its face, Parent hereby represents and warrants to Purchaser as follows:

Section 3.1          Organization and Qualification; Transferred Entities.  Parent and each Transferred Entity is or will be as of the Closing a corporation or other legal entity duly organized, validly existing and in good standing under the Laws of the jurisdiction of its organization, except as would not reasonably be expected to be material to the Transferred Entities and the Business, taken as a whole.  Each Transferred Entity has or will have as of the Closing all requisite corporate or other organizational power and authority to own, lease, use and operate its respective assets and properties and carry on its businesses as now being conducted and is qualified to do business and is in good standing as a foreign corporation or other legal entity in each jurisdiction where the conduct of its business requires such qualification, in each case, except as would not reasonably be expected to be material to the Business or the Transferred Entities, taken as a whole or prevent, materially impede or materially delay the ability of Parent to consummate the transactions contemplated hereby or by the Ancillary Agreements.  Section 3.1(a) of the Parent Disclosure Schedule sets forth a list of all Transferred Companies and Section 3.1(b) of the Parent Disclosure Schedule sets forth a list of all Transferred Company Subsidiaries.

Section 3.2          Capitalization of the Transferred Entities.

(a)         The Shares are duly authorized, validly issued, fully paid and nonassessable and owned by the Seller Group, free and clear of all Liens (other than any restrictions on transfer imposed by federal, state or local securities laws).  Except for the Shares, there are no Equity Interests of the Transferred Companies issued or outstanding.  The Equity Interests of the Transferred Company Subsidiaries are duly authorized, validly issued, fully paid and nonassessable and owned by the Transferred Entities, free and clear of all Liens (other than any restrictions on transfer imposed by federal, state or local securities laws).  No Equity Interests of the Transferred Entities were issued or are in violation of (i) any provision of the respective articles of incorporation or by-laws (or similar governing documents) of Parent or any Transferred Entity, (ii) any federal or state securities Laws or (iii) any purchase or call option, right of first refusal, subscription right, preemptive right or any similar rights of any other Person.

(b)         Section 3.2(b) of the Parent Disclosure Schedule sets forth all of the authorized and issued Equity Interests of the Transferred Companies.  Parent owns, directly or indirectly, all of the Equity Interests in the Transferred Entities free and clear of all Liens (other than any restrictions on transfer imposed by federal, state or local securities laws).

(c)         Except as set forth on Section 3.2(c) of the Parent Disclosure Schedule, none of the Transferred Entities, (x) owns, directly or indirectly, beneficially or of record, or holds the right to acquire any stock, partnership interest or joint venture interest or other equity ownership interest in any other Person or (y) is under any obligation to form or participate in, provide funds to, or make any loan, capital contribution, guarantee, credit enhancement or other investment in any Person, in each case, other than another Transferred Entity.  As of the Closing, other than the Transferred Entities, Parent does not own, directly or indirectly, any Equity Interests in any Person that operates any business that would be included in the definition of “Business” if such business were operated by Parent or its Subsidiaries.

(d)         To the knowledge of Parent, there are no material historical Liabilities associated with the entities listed on Section 3.2(d) of the Parent Disclosure Schedule.

Section 3.3          Authority Relative to this Agreement.  Parent has all necessary corporate or similar power and authority to execute, deliver and perform this Agreement and to consummate the transactions contemplated by this Agreement in accordance with the terms hereof.  This Agreement has been duly and validly executed and delivered by Parent, and, assuming the due authorization, execution and delivery of this Agreement by Purchaser, constitutes a valid, legal and binding agreement of Parent, enforceable against Parent in accordance with its terms, subject to the effect of any applicable Laws relating to bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance or preferential transfers, or similar Laws relating to or affecting creditors’ rights generally (the “Enforceability Exceptions”).  Each member of the Parent Group has all necessary corporate or similar power and authority to execute, deliver and perform each Ancillary Agreement to which it is a party in accordance with the terms thereof.  At the Closing, each Ancillary Agreement executed and delivered by the member of the Parent Group party thereto will be duly and validly executed and delivered by such member of the Parent Group, and, assuming the due authorization, execution and delivery of each Ancillary Agreement by Purchaser or its applicable Subsidiaries, will constitute, a valid, legal and binding agreement of the applicable members of the Parent Group, enforceable against them in accordance with the terms thereof, subject to the Enforceability Exceptions.

Section 3.4          Consents and Approvals; No Violations.  Except as set forth on Section 3.4 of the Parent Disclosure Schedule, no filing with or notice to, and no permit, authorization, registration, consent or approval of, any Governmental Entity is required on the part of Parent for the execution, delivery and performance by Parent of this Agreement or by Parent or any member of the Parent Group thereof of any Ancillary Agreement to which it is a party or the consummation by Parent of the transactions contemplated hereby or thereby, except (a) compliance with any applicable requirements of any Competition and Foreign Investment Laws; or (b) any such filings, notices, permits, authorizations, registrations, consents or approvals, the failure to make or obtain would not reasonably be expected to have, individually or in the aggregate, a Business Material Adverse Effect or prevent, materially impede or materially delay the ability of Parent to consummate the transactions contemplated hereby or by the Ancillary Agreements.  Assuming compliance with the items described in clauses (a) and (b) of the preceding sentence, neither the execution, delivery and performance of this Agreement by Parent or any Ancillary Agreement by Parent or any applicable Subsidiary thereof, nor the consummation by Parent or any Subsidiary thereof of the transactions contemplated hereby or thereby, will (i) conflict with or result in any breach, violation or infringement of any provision of the respective articles of incorporation or by-laws (or similar governing documents) of Parent or any Transferred Entity, (ii) result in a breach, violation or infringement of, give rise to any payment obligation or constitute (with or without due notice or lapse of time or both) a default (or give rise to the creation of any Lien, except for Permitted Liens, or any right of termination, amendment, cancellation or acceleration) under, any of the terms, conditions or provisions of any Business Material Contract or material Business Real Property Lease, or (iii) violate any Law applicable to any Transferred Entity or any of their respective properties or assets, except, in the case of clause (ii) or clause (iii), as would not reasonably be expected to have, individually or in the aggregate, a Business Material Adverse Effect or prevent, materially impede or materially delay the ability of Parent to consummate the transactions contemplated hereby or by the Ancillary Agreements.

Section 3.5          Financial Statements; Liabilities.

(a)          

(b)          There are no liabilities or obligations of the Transferred Entities of any nature, whether or not accrued, contingent or otherwise, that would be required by GAAP to be reflected on a combined balance sheet of the Business, other than those that (i) are adequately reserved against on the Business Audited Financial Statements or reflected in the determination of Working Capital or Net Indebtedness; (ii) have been incurred in the ordinary course of business since September 30, 2023; (iii) have been discharged or paid off; (iv) constitute Carrier Liabilities; or (v) would not reasonably be expected to have, individually or in the aggregate, a Business Material Adverse Effect.

(c)          Parent has established and maintains a system of internal accounting controls sufficient to provide reasonable assurance that, with respect to the Business and the Transferred Entities, transactions are recorded as necessary to permit preparation of the Business Financial Statements in conformity with GAAP, except for any deficiency that, individually or in the aggregate, would not reasonably be expected to be material to the Business and the Transferred Entities, taken as a whole.

(d)          Parent has, and does not have any reason to believe that it will not have available at the applicable time, sufficient immediately available funds and the financial ability to satisfy and perform its obligations under this Agreement and the Ancillary Agreements.

Section 3.6          Absence of Certain Changes or Events.  Except as contemplated by this Agreement (including the reorganizations and transactions undertaken to facilitate the Sale, including the Pre-Closing Restructuring, and including any actions taken as a result of, or in reaction to COVID-19 or COVID-19 Measures), (a) since September 30, 2023, and through the date of this Agreement, the Business has been operated in the ordinary course in all material respects and no action has been taken which, if taken after the date hereof, would be prohibited by Sections 5.4(a)(B), (D)(2), (D)(3), (J), (M), (N)(1) (other than with respect to material amendments) and (R) (with respect to such subsections only), and (b) since September 30, 2023, there has not occurred any event, change, development or effect that would reasonably be expected to have, individually or in the aggregate, a Business Material Adverse Effect.

Section 3.7          Litigation.

(a)         (i) There is no Action pending or, to the Knowledge of Parent, threatened, against any Transferred Entity, or relating to, arising out of or resulting from the Business, except as would not reasonably be expected to have, individually or in the aggregate, a Business Material Adverse Effect or that would prevent, materially impede or materially delay the ability of Parent to consummate the transactions contemplated hereby or by the Ancillary Agreements and (ii) no Transferred Entity (nor any member of the Parent Group solely with respect to the Business) is subject to any Order, except as would not reasonably be expected to have, individually or in the aggregate, a Business Material Adverse Effect or that would prevent, materially impede or materially delay the ability of Parent to consummate the transactions contemplated hereby or by the Ancillary Agreements.

(b)         (i) There is currently no pending, and for the last two (2) years, there has been no pending or, to the Knowledge of Parent, threatened Action and the Business has no Liability with respect to (A) any product now or formerly manufactured, distributed, sold or offered for sale by the Business or any Transferred Entity (“Product”) and alleged to have a defect in manufacture or design or (B) any claim for the breach of any express or implied product warranty or any similar claim with respect to any such Product other than standard warranty obligations (to replace, repair or refund) made in the ordinary course of business to purchasers of any Product; (ii) for the last two (2) years, there has not been any actual or alleged defect in the manufacture, design, materials or workmanship relating to any Product; and (iii) there is currently no pending, and for the last two (2) years, there has been no pending or, to the Knowledge of Parent, threatened voluntary or compulsory recall, market withdrawal, safety alert, investigation or any other similar notice or action relating to any alleged defect or violation, or lack of safety or efficacy of any Product or of any goods or products of any direct or indirect customer of the Business into which any Product has been incorporated, in the case of each of the foregoing clauses (i) – (iii), except as would not reasonably be expected to have, individually or in the aggregate, a Business Material Adverse Effect.

Section 3.8          Compliance with Laws.

(a)         (i) None of the Transferred Entities or, solely with respect to the Business, Parent or its other Subsidiaries, is, or since the date that is three (3) years prior to the date of this Agreement has been, in violation of any Laws or Order issued by a Governmental Entity and (ii) neither Parent nor any of its Subsidiaries has, since the date that is three (3) years prior to the date of this Agreement, received any (A) written notice alleging any such violation in connection with the Business or (B) investigation closures in connection with the Business, in each case except as would not reasonably be expected to have, individually or in the aggregate, a Business Material Adverse Effect.

(b)          Except as would not reasonably be expected to have, individually or in the aggregate, a Business Material Adverse Effect, since the date that is five (5) years prior to the date of this Agreement, (i) neither Parent nor any of its Subsidiaries has violated, in connection with the Business, any applicable Law relating to anti-bribery or anti-corruption, including the U.S. Foreign Corrupt Practices Act of 1977, as amended, and the U.K. Bribery Act 2010, in each case, as in effect at the time of such action (all such Laws, “Anticorruption Laws”), (ii) no director, officer, or, to the Knowledge of Parent, agent, employee, representative, consultant, joint venture partner or other Person acting for or on behalf of Parent or any of its Subsidiaries has, with respect to the Business, violated any Anticorruption Law, and (iii) through the date of this Agreement, neither Parent nor any of its Subsidiaries has, with respect to the Business, received any written notice alleging any such violation of any Anticorruption Law.

Section 3.9          Permits.  The Transferred Entities hold, or will hold as of the Closing, all Permits necessary for the conduct of the Business as conducted on the date of this Agreement (the “Transferred Entity Permits”), except for failures to hold such Transferred Entity Permits that would not reasonably be expected to be material to the Business and the Transferred Entities, taken as a whole.  The Products, in all material respects, meet the appropriate UL or ULC standard, meet and bear appropriate CE, CCC, CB Scheme, C-Tick requirements and markings and are otherwise in material compliance with all applicable government electrical and emissions standards and marking requirements in countries for which such Products are designed, sold, or intended for use.  Except as would not reasonably be expected to be material to the Business and the Transferred Entities, taken as a whole, no written notice has been received by Parent or any of its Subsidiaries alleging the failure to hold or fail to comply in any material respect with any applicable Permit in connection with the Business.  Except where the failure to so comply would not reasonably be expected to be material to the Business and the Transferred Entities, taken as a whole, (a) the Transferred Entities are in compliance with the terms of the Transferred Entity Permits and (b) each such Transferred Entity Permit is valid, subsisting and in full force and effect.

Section 3.10        Employee Benefit Plans.

(a)         Section 3.10(a) of the Parent Disclosure Schedule sets forth a list, as of the date of this Agreement, of each Transferred Entity Benefit Plan that is (i) a Defined Benefit Pension Plan, (ii) a material Transferred Entity Benefit Plan (other than any employment agreement or other individual compensatory agreement) maintained in a Material Jurisdiction, and (iii) an employment agreement with the President of the Business as of the date of this Agreement, or any Business Employee who directly reports to the President of the Business as of the date of this Agreement, and, with respect to each such Transferred Entity Benefit Plan, Parent has made available to Purchaser a copy or a description thereof (provided, that compensation amounts and other personal information may be redacted from each applicable employment agreement) and the most recent actuarial valuation report, if applicable, and (iv) forms of offer letter or employment agreements.  Parent has used reasonable best efforts to set forth on Section 3.10(a) of the Parent Disclosure Schedule a list, as of the date of this Agreement, of each material Transferred Entity Benefit Plan (other than any employment agreement or other individual compensatory agreement) maintained in a country other than a Material Jurisdiction and make available to Purchaser the documents with respect to each such plan that are set forth in the first sentence of this Section 3.10(a).  “Material Jurisdiction” means each of the United States, Canada, India, Poland and Spain.

(b)         Section 3.10(b) of the Parent Disclosure Schedule lists each material Seller Benefit Plan (including each Defined Benefit Pension Plan that is not a Transferred Entity Benefit Plan).  Parent has made available to Purchaser copies of the following, as applicable, with respect to each material Seller Benefit Plan and each material Transferred Entity Benefit Plan, in each case, maintained in the United States (and, with respect to each such Benefit Plan that is maintained in a Material Jurisdiction other than the United States, Parent has used reasonable best efforts to make available to Purchaser): (i) current plan documents (including all amendments thereto) or, if such plan is not in writing or is a Seller Benefit Plan, a written description of such plan, (ii) if such plan is a Transferred Entity Benefit Plan and is funded through a trust or any other funding arrangement, a copy of such trust or other funding arrangement, (iii) the most recent summary plan description, (iv) the most recent determination or opinion letter received from the Internal Revenue Service (or similar document received or required by a Governmental Entity or applicable Law in respect of a Benefit Plan that is not subject exclusively to the laws of the United States (an “International Plan”)), and (v) the most recent annual reports on Form 5500 required to be filed with the Internal Revenue Service with respect to each Benefit Plan (if any such report was required) (or similar report required by a Governmental Entity or applicable Law in respect of an International Plan).

(c)         Section 3.10(c) of the Parent Disclosure Schedule lists each Business Employee (by employee identification number) who holds a Parent LTIP Award and, in respect of each such Parent LTIP Award, (i) the type of award and number of shares of Parent common stock related thereto, (ii) the grant date, (iii) the vesting schedule, and (iv) if applicable, the exercise or reference price (the “Equity Award Schedule”).

(d)         Except as would not reasonably be expected to have, individually or in the aggregate, a Business Material Adverse Effect, (i) each Transferred Entity Benefit Plan has been maintained, administered and operated in compliance with the terms of such Transferred Entity Benefit Plan and the requirements of applicable Law, (ii) all contributions or premiums required to be made by any Transferred Entity or Parent or any of their Affiliates to any Transferred Entity Benefit Plan have been timely made or accrued, (iii) each Transferred Entity Benefit Plan that is a “nonqualified deferred compensation plan” (as defined in Section 409A(d)(1) of the Code) is in documentary compliance with, and is in operational compliance with Section 409A of the Code and all applicable Internal Revenue Service guidance promulgated thereunder, and (iv) each International Plan (x) that is intended to qualify for special Tax treatment has met all requirements for such Tax treatment and (y) if intended or required to be qualified, approved or registered with a Governmental Entity, is so qualified, approved or registered and, to the Knowledge of Parent, nothing has occurred that could reasonably be expected to result in the loss of such qualification, approval or registration, as applicable.

(e)         Each Benefit Plan that is intended to meet the requirements of a “qualified plan” under Section 401(a) of the Code has received a favorable determination letter from the Internal Revenue Service or is in the form of a prototype document that is the subject of a favorable opinion letter from the Internal Revenue Service regarding the tax-qualified status of such plan and, to the Knowledge of Parent, no event has occurred or condition exists that could reasonably be expected to adversely affect such tax-qualified status.

(f)          No Transferred Entity Benefit Plan is (i) an “employee pension benefit plan” (as defined in Section 3(2) of ERISA) subject to Title IV of ERISA, Section 412 of the Code or Section 302 of ERISA (including any “multiemployer plan” within the meaning of Section (3)(37) of ERISA), (ii) a “multiple employer plan” as defined in Section 413(c) of the Code, (iii) a “multiple employer welfare arrangement” within the meaning of Section 3(40) of ERISA or (iv) a Defined Benefit Pension Plan (or, in each case, a similar type of plan that is not subject exclusively to the laws of the United States).  Except as would not reasonably be expected to have, individually or in the aggregate, a Business Material Adverse Effect, no Liability under Title IV or Section 302 of ERISA (or otherwise to provide any pension (or benefit in connection with retirement or death) which is not calculated solely by reference to assets which (because of the nature of the calculation) must necessarily suffice for the purposes of its provision to or in respect of the recipient) has been incurred by any Transferred Entity or any ERISA Affiliate that has not been satisfied in full and, to the Knowledge of Parent, no condition exists that presents a risk to any Transferred Entity or any ERISA Affiliate or incurring any such Liability.

(g)         With respect to any Transferred Entity Benefit Plan, except as would not reasonably be expected to have, individually or in the aggregate, a Business Material Adverse Effect, (i) no Actions are pending, or, to the Knowledge of Parent, threatened against any Transferred Entity Benefit Plan, (ii) to the Knowledge of Parent, no facts or circumstances exist that could reasonably be expect to give rise to any such Actions and (iii) no Transferred Entity Benefit Plan is, or within the last six (6) years has been, the subject of an application or filing under, or a participant in, a government-sponsored amnesty, voluntary compliance, self-correction or similar program.

(h)          None of the Transferred Entity Benefit Plans obligates a Transferred Entity to provide a current or former employee, consultant, director or other service provider (or any beneficiary or dependent thereof) of a Transferred Entity any life insurance or medical or health benefits after his or her termination of employment or service with a Transferred Entity other than as required under Part 4 of Subtitle B of Title I of ERISA, Section 4980B of the Code or any similar state Law or Law of any other relevant jurisdiction.

(i)          Except as contemplated by this Agreement, neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby, either alone or in connection with any other event, will (i) accelerate the timing of vesting, funding or payment, or increase the amount, of any compensation or benefits to any Business Employee or Business Independent Contractor or any current or former employee or other service provider of any Transferred Entity that would result in Liability to the Transferred Entities or Purchaser or be payable by the Transferred Entities or Purchaser or (ii) give rise to payments or benefits that would be nondeductible to the payor under Section 280G of the Code or that would result in an excise Tax on any recipient under Section 4999 of the Code.

(j)          No contribution notice, financial support direction or warning notice has been issued or, to the Knowledge of Parent, threatened to be issued to any Transferred Entity under the UK Pensions Act 2004, and, to the Knowledge of Parent, no Transferred Entity has been a party to any act or failure to act which could fall within section 38(5), UK Pensions Act 2004 nor, to the Knowledge of Parent, are there any grounds on which a financial support direction might be issued to any Transferred Entity.

Section 3.11        Employees; Labor Matters.

(a)         Section 3.11(a) of the Parent Disclosure Schedule sets forth a list, as of the date of this Agreement, of each (i) written collective bargaining, works council and other material agreement (“Collective Bargaining Agreement”) with any Business Employee Representative Body to which any Transferred Entity is a party or otherwise bound or to which Parent or its Subsidiaries (other than the Transferred Entities) are a party or otherwise bound with respect to any Business Employee or the Business, and (ii) Business Employee Representative Body to which each Transferred Entity is a party or otherwise bound.

(b)         (i) To the Knowledge of Parent, there is no organizational effort currently being made or threatened by, or on behalf of, any Business Employee Representative Body to organize any Business Employees, (ii) no demand for recognition as the bargaining representative of any Business Employees has been made by, or on behalf of, any Business Employee Representative Body, and (iii) during the three (3)-year period immediately prior to the date of this Agreement, there have been no strikes, lockouts or other material disputes with any Business Employee Representative Body related to the Transferred Entities or the Business.

(c)         To the extent permitted by applicable Law, Parent has made available to Purchaser a complete and accurate single list of all Business Employees as of October 31, 2023, stating such Business Employee’s (i) employee identification number, (ii) job title, (iii) employing entity, (iv) salary, (v) bonus and target incentive compensation, if applicable, or other rate of pay, as reflected in the human resources information systems of the Parent Group or the Transferred Entities, (vi) full-time or part-time status, (vii) exempt or non-exempt status (as applicable) and (viii) active or leave status, as such list may be updated in accordance with Section 6.1(a).  Each Business Employee’s duties either primarily relate to, or have otherwise reasonably been determined by Parent to be necessary to the operation of, the Business.

(d)         As soon as practicable (and no later than thirty (30) days following) the date of this Agreement, to the extent permitted by applicable Law, Parent shall make available to Purchaser a single list that is true, complete and accurate of all Business Independent Contractors, stating such Business Independent Contractor’s (i) legal entity engaging the Business Independent Contractor (as applicable), (ii) date of commencement of service and anticipated termination date, if applicable, (iii) rate of renumeration and (iv) whether such Business Independent Contractor is party to a written contract for the work such contractor provides to the Business.

(e)         During the three (3)-year period immediately prior to the date of this Agreement, to the Knowledge of Parent, (i) no officer, director or employee with the title of Vice President or above of Transferred Entities or (solely with respect to the Business) of Parent and its Subsidiaries has been the subject of an allegation of unlawful discrimination, sexual harassment or other sexual misconduct (in each case, solely in connection with such individual’s employment with the Transferred Entities or the Business) and (ii) none of the Transferred Entities or (solely with respect to the Business) Parent and its Subsidiaries has entered into any written settlement agreement related to any such allegations.

(f)          Parent and its Subsidiaries (including the Transferred Entities) have complied with their legal and contractual requirements to (i) provide notice to, or enter into and complete any required consultation procedure with, any Business Employee Representative Body which represents any Business Employees and (ii) inform the applicable Business Employees, in each case, in connection with the execution of this Agreement or the transactions contemplated by this Agreement.

Section 5.22        Payoff Letters.  No later than three (3) Business Days prior to the Closing, Parent shall deliver or cause to be delivered to Purchaser (a) duly executed payoff letters (or local equivalents) in customary form reasonably satisfactory to Parent for all third party Indebtedness for borrowed money of the Transferred Entities, which payoff letters (or local equivalents) shall state (i) the aggregate amount of the obligations of the Transferred Entities (including unpaid principal, accrued and unpaid interest, prepayment penalties, breakage costs and premiums in connection with the repayment thereof) that will be outstanding thereunder as of the Closing, (ii) that upon receipt of the payoff amount set forth therein, the applicable instruments evidencing and/or giving rise to such Indebtedness shall be automatically terminated and all Liabilities and obligations thereunder of the Transferred Entities shall be satisfied, released and discharged (except for (i) the provisions in such instruments that, by their terms, expressly survive such termination and (ii) any Existing Letters of Credit contemplated by the applicable payoff letter to remain in effect or outstanding following the release of the Liens described in clause (a)(iii) below) and (iii) that all Liens securing such Liabilities and obligations thereunder shall be, upon the payment of applicable payoff amount, automatically released and terminated, and (b) documents necessary to release and/or evidence the release of the Liens described in clause (a)(iii) above, including, all relevant statements, authorizations and other relevant documents to enable Purchaser or Parent to make all filings or to take all other appropriate actions in each applicable jurisdiction to release or evidence the release of the Liens described in clause (a)(iii) above. With respect to any Existing Letter of Credit, prior to the Closing, Parent shall, and shall cause the Transferred Entities to, use reasonable best efforts to take all actions requested by Purchaser to terminate or assist with Purchaser’s backstop of such Existing Letters of Credit (including the release and discharge of all related Liens and security interests); provided, that if any Existing Letter of Credit is not backstopped or terminated on or prior to Closing, such Existing Letter of Credit shall be subject to Section 5.9.

Section 5.23       Intellectual Property Assignment Agreement.  Following the execution of this Agreement, Parent and Purchaser shall in good faith discuss any modifications to the Intellectual Property Assignment Agreement reasonably requested by Purchaser and necessary to carry out the transactions contemplated by this Agreement.

Section 5.24       Requested License to Patents.  Prior to the Closing, Parent shall in good faith review the Patents owned by Parent or any of its Affiliates set forth on Schedule IX to determine whether any such Patents are used or held for use by, or otherwise necessary for the conduct of, the Business as currently conducted, and if any such Patents are determined to be used or held for use by, or otherwise necessary for the conduct of, the Business as currently conducted, Schedule VIII and Exhibit A to the Intellectual Property Cross License Agreement shall be updated to include such Patents.  In addition, prior to the Closing, if either party reasonably believes a Patent owned by Parent or any of its Affiliates (A) is (x) used or held for use by, or otherwise necessary for the conduct of, the Business as currently conducted and not set forth on Exhibit A to the Intellectual Property Cross License Agreement or (y) set forth on Exhibit A to the Intellectual Property Cross License Agreement but is not used or held for use by, or otherwise necessary for the conduct of, the Business as currently conducted, or (B) is (x) Business Intellectual Property that is not set forth on Section 3.16(a) of the Parent Disclosure Schedule or (y) included in Section 3.16(a) of the Parent Disclosure Schedule and is not primarily used or held for use in the Business, then (i) such party shall provide the other party written notice thereof, (ii) the parties shall review such Patent in good faith and (iii) if such requesting party’s belief is correct, then (1) in the case of the foregoing clause (A), Schedule VIII and Exhibit A to the Intellectual Property Cross License Agreement shall be updated to include or delete such Patent, as applicable and (2) in the case of the foregoing clause (B), Section 3.16(a) of the Parent Disclosure Schedule shall be updated to include or delete such Patent, as applicable.

Section 6.1          Continuation of Employment.

(a)          On a monthly basis and no later than ten (10) Business Days prior to the Closing Date, Parent shall make available to Purchaser updates (as of the most reasonably practicable date prior to the date that such update is made available) to the list of (i) Business Employees (with each such update including the information required pursuant to Section 3.11(c)(i) through (viii), including, if a Business Employee is on leave, the nature of the leave and, if known, the expected return date, and further including (to the maximum extent permitted by applicable Law), within thirty (30) days following the date hereof and on each subsequent update to such list, the name of each Business Employee), and (ii) Business Independent Contractors (including the information required pursuant to Section 3.11(d)(i) through (iv)), in each case, to reflect new hires or engagements, terminations or other personnel changes occurring between the date hereof and the date which is ten (10) Business Days prior to the Closing Date, subject, in each case, to Section 5.4.

(b)          As of the Closing Date, Purchaser shall cause each of the Transferred Entities to continue to employ on the Closing Date its respective Transferred Entity Employees who are employed by a Transferred Entity at such time.  From and after the date of this Agreement until sixty (60) Business Days prior to the anticipated Closing Date, Purchaser will consider in good faith any proposal by Parent to add additional individuals to the list of (i) Business Employees and (ii) Excluded Employees set forth in Section 1.1(a) of the Parent Disclosure Schedule.

(c)          As early as necessary taking account any applicable termination notice periods and in any event no later than one (1) month prior to the Closing Date, Purchaser shall cause, or shall cause an Affiliate to, make an offer of employment to each Offer Employee, with such offer effective as of the Closing, on terms and conditions consistent with the requirements of this Article VI.  Notwithstanding the foregoing, and subject to applicable Law, Purchaser shall, or shall cause one of its Affiliates to, offer employment on terms consistent with this Article VI to any Offer Employee who is an Inactive Employee as of the Closing Date to the extent that any such Inactive Employee, within one hundred eighty (180) days following the Closing Date (or such longer period as required by applicable Law), presents himself or herself for, and is able to return to, active service.  Any Inactive Employee who accepts such an offer of employment shall be treated as an Offer Employee under this Agreement as of the date of such employment commencement.  Parent shall, or shall cause its Affiliates to, promptly notify Purchaser of the occurrence and end of any such leave of absence of an Inactive Employee.

(d)          Notwithstanding anything to the contrary contained in this Agreement; in the event that Purchaser, in consultation with Parent or its Affiliate, reasonably determines by no later than one (1) month prior to the Closing Date, that, (i) pending the establishment or operationalizing of a new entity that is, or will be, an Affiliate of Purchaser in a particular jurisdiction or (ii) Parent failed to implement the steps set out in the Pre-Closing Restructuring Plan with respect to the Business Employees, in each case, such that Purchaser and its Affiliates are not legally or operationally able to employ any Business Employee in such jurisdiction as of the Closing Date, then Parent shall use its reasonable best efforts (to the extent permitted by applicable Law) to effect that Purchaser or its Affiliates shall be supplied the services of such employees (each such employee, a “Delayed Transfer Employee”) in any such jurisdiction until Purchaser or any of its Affiliates is legally and operationally able to employ any such Delayed Transfer Employees (which date shall in no event be later than nine (9) months after the Closing Date), at which time Purchaser or one of its Affiliates shall promptly offer employment to each such Delayed Transfer Employee in accordance with the terms of Section 6.1(c).  For and in consideration of the services of each Delayed Transfer Employee provided to Purchaser or its Affiliates pursuant to this Section 6.1(d), Purchaser shall promptly pay and deliver to Parent a monthly payment equal to the total amount of compensation, employee benefit expenses and employment taxes (in each case, to the extent reasonable and documented) actually incurred by Parent in connection with the services provided by each Delayed Transfer Employee to Purchaser or its Affiliates.  Purchaser shall indemnify and hold harmless the Parent Indemnified Parties for all Liabilities arising from, or relating to, any actions by, or omissions of, Purchaser and its Affiliates (and their respective employees and service providers) relating to the Delayed Transfer Employees who become Delayed Transfer Employees by operation of subsection (i) of this Section 6.1(d), and such Delayed Transfer Employees’ provision of services to Purchaser and its Affiliates, including any employment-related Actions brought by Delayed Transfer Employees.

(e)          Purchaser and Parent agree to take, or cause their respective Affiliates to take, all actions required under applicable Law (including the Transfer Regulations) and all other actions as are necessary or appropriate such that the employment of each Automatic Transfer Employee will transfer to Purchaser or its Affiliates (including the Transferred Entities).  Notwithstanding the foregoing, if any Automatic Transfer Employee, to the extent permitted in accordance with applicable Law, objects to such automatic transfer, Purchaser shall (or shall cause an Affiliate to) make a written offer of employment to such Automatic Transfer Employee, on the terms and conditions consistent with this Article VI, applicable Law and the terms and conditions which would have applied had such Automatic Transfer Employee’s employment transferred pursuant to the Transfer Regulations.  Effective as of the Closing, Parent and their Affiliates shall cease to employ any such Automatic Transfer Employee who accepts such offer.

(f)          To the extent that any Business Employee does not become a Transferred Entity Employee pursuant to this Section 6.1, Parent or its applicable Affiliate shall, effective as no later than the Closing Date, either (i) terminate the employment of such employee or (ii) after consultation with Purchaser, reassign such employee to a position with Parent or any of its Subsidiaries (other than the Transferred Entities); provided that, in the case of this clause (ii) of this Section 6.1(f), from the effective date of such reassignment, such employee shall not be considered a Business Employee for any purpose under this Agreement.

Section 6.2          Terms and Conditions of Employment.

(a)          With respect to each Transferred Business Employee, Purchaser shall, provide or cause to be provided, for the twelve (12)-month period commencing on the Closing Date, (i) at least the same wage rate or cash salary level in effect for such Transferred Business Employee immediately prior to the Closing, (ii) non-equity incentive compensation opportunities that are no less favorable than those in effect with respect to such Transferred Business Employee immediately prior to Closing, and (iii) retirement and health and welfare benefits (other than those under any defined benefit pension plans, retiree health or retiree welfare plans or arrangements, or deferred compensation plans) that are no less favorable in the aggregate than those in effect with respect to such Transferred Business Employee immediately prior to the Closing (other than those under any defined benefit pension plans, retiree health or retiree welfare plans or arrangements, or deferred compensation plans).  Notwithstanding the foregoing, Purchaser shall not be prohibited by this Section 6.2 from terminating the employment of any Transferred Business Employee following the Closing Date.  Purchaser shall cause the Transferred Entities and their Affiliates to, and the Transferred Entities and their Affiliates shall, in addition to meeting the applicable requirements of this Article VI, comply with any additional obligations or standards arising under applicable Laws or Contracts governing the terms and conditions of employment or termination of employment of the Transferred Business Employees, including any Collective Bargaining Agreements.

(b)          In addition, and without limiting the application of Section 6.2(a), in the event that Purchaser and its Affiliates fail to provide to any Transferred Business Employee the terms and conditions of employment required under applicable Law or any Benefit Plan set forth on Section 3.10(a) or 3.10(b) of the Parent Disclosure Schedule, and such failure results in any obligation, contingent or otherwise, of any member of the Parent Group to pay any severance or other compensation payments to any Transferred Business Employee, or any additional Liability incurred by any member of the Parent Group in connection therewith, in each case, under any Benefit Plan set forth on Section 3.10(a) or 3.10(b) of the Parent Disclosure Schedule, Purchaser shall, and shall cause its Affiliates to, reimburse and otherwise indemnify and hold harmless any member of the Parent Group for all such severance and other compensation and additional Liabilities.  Notwithstanding the foregoing, for the twelve (12)-month period commencing on the Closing Date, Purchaser shall, or shall cause its Affiliates to, provide each Transferred Business Employee who suffers a termination of employment under circumstances that would have given the Transferred Business Employee a right to severance payments and benefits under Parent’s or its Affiliate’s severance policies in effect immediately prior to the Closing Date, each as set forth on Section 3.10(a) or 3.10(b) of the Parent Disclosure Schedule (the “Severance Policy”), with severance payments and benefits no less favorable than those that would have been provided to such Transferred Business Employee under the Severance Policy; provided, that any such severance payments and benefits be paid pursuant to the terms and conditions of Purchaser’s applicable severance policy.

(c)          With respect to each unvested equity award relating to common stock of Parent that is outstanding as of the date of this Agreement and held by a Transferred Business Employee as of immediately prior to the Closing (each, a “Parent LTIP Award”), Parent shall take such actions as are necessary so that upon the Closing, (i) a pro-rated portion of each such Parent LTIP Award shall vest (at target for any performance based equity award) and such vested pro-rated portion of the Parent LTIP Award shall be settled in common stock of Parent or cash and (ii) the remaining portion of each such Parent LTIP Award (each, an “Unvested Parent LTIP Award”) shall be cancelled for no consideration.  The pro-ration of any time-based vesting Parent LTIP Award shall be determined by dividing the number of days in the applicable vesting period elapsed through the Closing Date by the total number of days in such vesting period.  The pro-ration of any performance-based vesting Parent LTIP Award shall be determined by dividing the number of days in the applicable performance period elapsed through the Closing Date by the total number of days in such performance period.  Purchaser agrees to grant to each Transferred Business Employee who holds an Unvested Parent LTIP Award a cash or, at the discretion of Purchaser, an equity incentive award relating to common stock of Purchaser (each, a “New LTIP Award”). Each New LTIP Award shall have a grant date value equal to the value of any Unvested Parent LTIP Award, as determined in accordance with this Section 6.2(c), and shall have the same time-based vesting schedule as applied to such Unvested Parent LTIP Award immediately prior to the Closing; provided that such New LTIP Award shall be subject to the terms and conditions of Purchaser’s applicable equity or incentive award plan or program.  No later than thirty (30) days prior to the Closing, Parent shall deliver an updated Equity Award Schedule to Purchaser containing the applicable information as of the Business Day prior to the Closing Date.  The grant date value of the New LTIP Awards shall equal (x) in the case of an Unvested Parent LTIP Award of restricted or performance stock units, the aggregate value of the shares of Parent common stock underlying the corresponding Unvested Parent LTIP Award (at target for any performance stock unit) based on the closing price per share of common stock of Parent on the Closing Date (or the last trading day preceding that Closing Date, if the Closing Date is not a trading day) and (y) in the case of an Unvested Parent LTIP Award of stock appreciation rights, the grant date target value of the Unvested Parent LTIP Award.

Section 6.3        Service Credit.  As of and after the Closing, Purchaser shall, or shall cause the applicable Transferred Entity to, give each Transferred Business Employee full credit for all purposes under (a) any Transferred Entity Benefit Plans, (b) each other employee benefit plan, policy or arrangement, and (c) any other service-based or seniority-based entitlement, in each case maintained or made available for the benefit of Transferred Business Employees as of and after the Closing by Purchaser or any of its Affiliates, for such Transferred Business Employee’s service prior to the Closing with Parent and its applicable Affiliates (including the Transferred Entities) and their respective predecessors, to the same extent such service is recognized by Parent and its applicable Affiliates (including the Transferred Entities) immediately prior to the Closing and as reported by Parent to Purchaser; provided, that such credit shall not be given (i) to the extent that it would result in a duplication of benefits for the same period of service and (ii) for purposes of (1) benefit accruals under any Defined Benefit Pension Plans or retiree health or retiree welfare plans or arrangements or (2) vesting of any equity or equity-based compensation.

Section 6.4          Health Coverages.  Purchaser shall use commercially reasonable efforts to cause each Transferred Business Employee (and his or her eligible dependents) to be covered by a group health plan or plans that (a) comply with the provisions of Section 6.2(a),(b) do not limit or exclude coverage on the basis of any pre-existing condition of such Transferred Business Employee or dependent (other than any limitation already in effect under the corresponding group health Seller Benefit Plan or Transferred Entity Benefit Plan) or on the basis of any other exclusion or waiting period not in effect under the applicable group health Seller Benefit Plan or Transferred Entity Benefit Plan, and (c) the extent that such plans are the Transferred Entity group health plans in which such Transferred Business Employee becomes eligible to participate for the first time following the Closing, provide such Transferred Business Employee full credit, for the first year of eligibility, for any deductible, co-payment or out-of-pocket expenses already incurred by the Transferred Business Employee under the applicable group health Seller Benefit Plan or Transferred Entity Benefit Plan during such year for purposes of any deductible, co-payment or maximum out-of-pocket expense provisions, as applicable, of such Transferred Entity group health plans.

Section 6.5          Accrued Vacation, Sick Leave and Personal Time.  Purchaser will, or will cause an Affiliate (including the Transferred Entities) to, recognize and assume all Liabilities with respect to accrued but unused vacation time for all Transferred Business Employees (including any Liabilities to Transferred Business Employees for payments in respect of earned but unused vacation time and accrued but unused time off in lieu of overtime pay that arise as a result of the transfer of employment contemplated by this Article VI), but solely to the extent such amounts are reflected in Working Capital.  Purchaser shall cause the Transferred Entities to, and the Transferred Entities shall, allow Transferred Business Employees to use the vacation, sick leave and personal time recognized or established in accordance with the first sentence of this Section 6.5 in accordance with the terms of the applicable policies and programs of Purchaser or its relevant Affiliates as may be in effect from time to time.  Notwithstanding the foregoing, solely to the extent required by applicable Law, on or immediately prior to the Closing Date (or, with respect to an Inactive Employee, the date such Inactive Employee becomes a Transferred Business Employee), Parent or its Affiliate shall pay, or cause to be paid, to each Transferred Business Employee, any earned amounts that are required to be paid by Parent or its Affiliates as a result of the Pre-Closing Restructuring or the transactions contemplated in this Agreement, including but unused vacation time, accrued but unused time off in lieu of overtime pay, long-service awards and termination payments, and Purchaser shall promptly (and, in any event, within ten (10) Business Days following the later of the Closing Date and the date of the applicable payment) reimburse Parent or its Affiliate for such payment.

Section 6.6        Cash Incentive Compensation.  Purchaser shall assume all Liability for any cash incentive compensation (including sales commissions) payable under any Benefit Plan in respect of the calendar year in which the Closing occurs (or any portion thereof) to Transferred Business Employees in connection with their services to the Business (the “Cash Incentive Compensation”) and the Parent Group shall not have any Liability for the Cash Incentive Compensation.  All Cash Incentive Compensation shall be governed by plans, programs or arrangements maintained by Purchaser and its Affiliates (including the Transferred Entities) in their discretion, subject to Purchaser’s obligations under Section 6.2(a); provided, that the amount of Cash Incentive Compensation actually paid by Purchaser and its Affiliates (including the Transferred Entities) to Transferred Business Employees shall be not less than the accrued amount of Cash Incentive Compensation included in Working Capital.  If the Closing occurs prior to the date on which any of the Transferred Entities pay Cash Incentive Compensation for any open performance period, then Purchaser shall cause the applicable Transferred Entity to, and the applicable Transferred Entity shall, pay the applicable Cash Incentive Compensation to each Transferred Business Employee who is otherwise eligible to receive it for such open performance period; provided, that Cash Incentive Compensation payments shall be (a) based on the Cash Incentive Compensation plan and targets in effect as of immediately prior to the Closing and consistent with the accruals set forth on the Closing Statement, (b) determined reasonably and in good faith by the applicable Transferred Entity in the ordinary course of business and (c) paid by the applicable Transferred Entity at the same time that such Cash Incentive Compensation is typically paid in the ordinary course of business.

Section 6.7         Collective Bargaining Agreements.  Purchaser agrees that, to the extent required by applicable Law, as of and following the Closing Date, each Transferred Entity shall recognize the Business Employee Representative Bodies that are signatories to the Collective Bargaining Agreements covering Transferred Business Employees as the representatives of the Transferred Business Employees who are members of the bargaining units described therein.  Notwithstanding anything to the contrary in this Article VI to the contrary, the terms and conditions of employment for any Transferred Business Employee covered or bound by a Collective Bargaining Agreement shall be governed by the terms of such applicable Collective Bargaining Agreement.

Section 6.8        Labor Consultations.  Following the date of this Agreement, Parent shall (and shall cause its Affiliates to) satisfy all requirements under applicable Law or pursuant to any Collective Bargaining Agreement to provide notifications to, and conduct consultations, discussions or negotiations with, applicable Business Employees and Business Employee Representative Bodies (or any other representatives elected specifically for this purpose) in connection with the transactions contemplated by this Agreement, including as required pursuant to the Transfer Regulations.  Purchaser shall (and shall cause its Affiliates to) reasonably cooperate with Parent and its Affiliates, as Parent and its Affiliates may reasonably request, in satisfying such obligations.

Section 6.9       Foreign National Employees.  Parent shall, or shall cause its Affiliates (including the Transferred Entities) to, use reasonable best efforts to procure, transfer or maintain the visa, foreign worker status or other permissions that Business Employees who are foreign nationals may require in order that such Business Employee may continue to work in such Business Employee’s current position as a Transferred Business Employee following the Closing Date (or, with respect to an Inactive Employee, the date such Inactive Employee becomes a Transferred Business Employee).

Section 6.10    Business Independent Contractors.  Prior to the Closing Date, Parent shall, or shall cause its Affiliates to, use commercially reasonable efforts to make each Business Independent Contractor available to Purchaser or its Affiliates for purpose of allowing Purchaser or its Affiliates to interview each such Business Independent Contractor and determine each such Business Independent Contractor’s continued provision of services to Purchaser or its Affiliates (including the Transferred Entities), if any, following the Closing Date.  As of the Closing, Parent shall, or shall cause its Affiliates to, ensure that each Business Independent Contractor who enters into a new agreement with Purchaser or its Affiliates (including the Transferred Entities) is released form any engagement with Parent or its Affiliates, including any post-termination restrictive covenants that would prohibit or restrict such Business Independent Contractor form providing services to Purchaser or its Affiliates (including the Transferred Entities).

Section 6.11      Seller Benefit Plans; Transferred Entity Benefit Plans; International Plans.  Except as provided by the Transition Services Agreement, each Transferred Business Employee shall cease to actively participate in the Seller Benefit Plans effective as of the Closing.  Except as otherwise expressly provided in this Article VI, Purchaser shall not assume any obligations under, or Liabilities with respect to, or receive any right or interest in any trusts relating to, any assets of or any insurance, administration or other contracts, or related obligations pertaining to, any Seller Benefit Plan.  For the avoidance of doubt, as of the Closing, Purchaser and its Affiliates shall assume, or shall cause the Transferred Entities to assume or retain, as the case may be, sponsorship of, and all Liabilities and other obligations with respect to, the Transferred Entity Benefit Plans.  To the extent that any Transferred Entity Benefit Plans are not listed on Section 3.10(a) of the Parent Disclosure Schedule or documents relating to Benefit Plans in Sections 3.10(a) and (b) are not made available to Purchaser before the date of this Agreement, Parent shall make available to Purchaser a list of such plans and such documents as soon as reasonably practicable after the date of this Agreement, and such updated list of such plans shall be deemed to amend Section 1.1(e) of the Parent Disclosure Schedule; provided, that no such update or amendment to Section 1.1(e) of the Parent Disclosure Schedule shall include any (v) Benefit Plan that is a Defined Benefit Pension Plan or post-employment health and welfare plan, (x) any Benefit Plan (other than individual offer letter or employment agreements) that provides for severance or termination benefits other than those required by applicable Law, (y) any Benefit Plan (other than individual offer letter or employment agreements) for which the Liabilities in respect of or arising from such Benefit Plan are not accrued and reflected in Indebtedness, Net Working Capital, or Parent Transaction Expenses, or (z) any Benefit Plan that includes Liabilities related to any Person other than a Transferred Business Employee or former employee of the Business.

Section 6.12         No Third Party Beneficiaries.  Without limiting the generality of Section 11.5, nothing in this Agreement is intended to or shall (a) be treated as an amendment to, or be construed as amending, any Seller Benefit Plan, Transferred Entity Benefit Plan or other benefit plan, program or agreement sponsored, maintained or contributed to by Parent, any Transferred Entity or any of their respective Affiliates, (b) prevent Purchaser or its Affiliates from terminating any Transferred Entity Benefit Plan or any other benefit plan in accordance with its terms, (c) prevent Purchaser or its Affiliates, on or after the Closing Date, from terminating the employment of any Business Employee, or (d) confer any rights or remedies (including third-party beneficiary rights) on any current or former director, employee, consultant or independent contractor of Parent, any Transferred Entity or any of their respective Affiliates or any beneficiary or dependent thereof or any other Person.

Section 7.1          Tax Returns.

(a)          Parent shall prepare or shall cause to be prepared and timely file or cause to be timely filed (i) any combined, consolidated or unitary Tax Return that includes any member of the Parent Group, on the one hand, and any of the Transferred Entities, on the other hand (a “Combined Tax Return”) and (ii) any Tax Return that includes or relates to any Parent Tax Liability for which Parent may be liable under Section 10.2 (an “Indemnified Tax Return”).  Purchaser shall not amend or revoke, and shall not cause or permit to be amended or revoked, any Combined Tax Return or Indemnified Tax Return (or any notification or election relating thereto) without the prior consent of Parent (not to be unreasonably withheld, conditioned or delayed).  In the case of any Indemnified Tax Return that is required to be authorized and signed by any Transferred Entity after Closing, Parent shall (x) provide the Purchaser with a draft of such Indemnified Tax Return for Purchaser’s review and comment not later than twenty (20 Business Days prior to the filing thereof, (y) consider in good faith any reasonable comments provided by Purchaser and (z) deliver such Indemnified Tax Return (as revised pursuant to the immediately preceding clause (y)), along with any Taxes shown as due and owing thereon for which Parent is responsible in accordance with this Agreement, to the Purchaser for authorization and signing of such Indemnified Tax Return prior to submission, and Purchaser shall procure that such Indemnified Tax Return is so authorized and signed as soon as reasonably practicable and without further amendment by and on behalf of the relevant Transferred Entity, and submitted to the appropriate Tax authority along with such Taxes received from Parent as soon as reasonably practicable (and in any event within any relevant time limit); provided, that none of Purchaser or any of its Affiliates (including the Transferred Entities) will be required to file any Indemnified Tax Return to the extent that Parent does not incorporate comments thereto that are provided by Purchaser pursuant to this Section 7.1(a) and Purchaser reasonably determines, in reliance on written advice of nationally-recognized tax counsel, that Parent’s failure to incorporate such comments has resulted in such Indemnified Tax Return reflecting a position for which there is not “substantial authority” (within the meaning of Treasury Regulations Section 1.6662-4(d) or any comparable, analogous or similar provision of state, local or non-U.S. Law).

(b)          Notwithstanding anything to the contrary in this Agreement, neither Purchaser nor any member of the Parent Group shall be required to provide any Person with any Tax Return or copy of any Tax Return of (i) Purchaser or any of its Affiliates, or Parent or any other member of the Parent Group, as the case may be, or (ii) a consolidated, combined, affiliated or unitary group that includes the Purchaser or any of its Affiliates, or Parent or any member of the Parent Group (including any Combined Tax Return), as the case may be.

(c)          From and after the Closing Date, without the consent of the Parent (which shall not be unreasonably withheld, conditioned, or delayed), Purchaser shall not, and shall not permit any of its Affiliates (including the Transferred Entities) to, take any of the following actions with respect to Parent Tax Liabilities: (A) make any material Tax election, (B) amend any income or other material Tax Return or (C) initiate any voluntary disclosure, in each case except as required by a “determination” within the meaning of Section 1313(a) of the Code.  Purchaser shall not, and shall not permit any of its Affiliates (including the Transferred Entities) to take any action outside the ordinary course of business on the Closing Date after the Closing, except to the extent contemplated by this Agreement.

(a)          If any Taxing Authority asserts a Tax Claim for which the non-recipient is liable (including, for the avoidance of doubt, Parent Tax Liabilities for which Parent is liable under Section 10.2), then the party to this Agreement first receiving notice of such Tax Claim promptly shall provide written notice thereof to the other party or parties to this Agreement; provided, however, that any delay or failure to so notify the liable party shall only relieve the liable party of its obligations hereunder to the extent, if at all, that the liable party is materially prejudiced (as determined by a court of competent jurisdiction) by reason of such delay or failure.  Such notice shall specify in reasonable detail the basis for such Tax Claim and shall include a copy of the relevant portion of any correspondence received from the Taxing Authority.

(b)          In the case of a Tax Proceeding of or with respect to any Transferred Entity for any taxable period ending on (and including) or before the Closing Date (except with respect to Parent Tax Liabilities), Purchaser shall have the exclusive right to control such Tax Proceeding; provided, however, that (i) Parent shall have the right to participate in such Tax Proceedings and attend any meetings or conferences with the relevant Taxing Authority at its own expense and (ii) Purchaser shall not settle, compromise or abandon any such Tax Proceeding without obtaining the prior written consent of Parent (which consent shall not be unreasonably withheld, conditioned or delayed) if such Tax Proceeding (x) relates to Taxes for which Parent is responsible pursuant to this Agreement or (y) is reasonably expected to have an impact on the Tax Returns of (1) Parent or any other member of the Parent Group or (2) a consolidated, combined or unitary group that includes any member of the Parent Group (including any Combined Tax Return).  Except as otherwise set forth in this Section 7.2(b) and subject to Section 7.1 with respect to Parent Tax Liabilities, Purchaser shall have the exclusive right to control any Tax Proceeding with respect to any Transferred Entity.

(c)          Notwithstanding anything to the contrary in this Agreement, Parent shall have the exclusive right to control in all respects, and neither Purchaser nor any of its Affiliates shall be entitled to participate in, any Tax Proceeding with respect to (i) any Tax Return of Parent or a member of the Parent Group; and (ii) any Tax Return of a consolidated, combined or unitary group that includes any member of the Parent Group (including any Combined Tax Return).

Section 7.3         Tax Refunds.  Parent shall be entitled to any credits and refunds of Tax (including interest received thereon, but net of reasonable costs or expenses, including Taxes, incurred by Purchaser or any of its Affiliates (including, after the Closing, the Transferred Entities) in obtaining such refund) actually received (including through a reduction in cash Taxes otherwise payable) by Purchaser or any of its Affiliates (including, after the Closing, the Transferred Entities) with respect to Parent Tax Liabilities (a “Tax Refund”); provided, that Parent shall not be entitled to any Tax Refund to the extent such Tax Refund (a) relates to Taxes that were economically borne by Purchaser or any of its Affiliates (including the Transferred Entities) following the Closing, (b) was specifically taken into account in the determination of Working Capital or Indebtedness, as finally determined pursuant to Article II or (c) is attributable to the carryback of any Tax attribute generated in a taxable Period (or portion thereof) beginning after the Closing Date.  Purchaser shall cause the amount of any such Tax Refund (net of reasonable costs or expenses, including Taxes, incurred by Purchaser or any of its Affiliates (including, after the Closing, the Transferred Entities) in obtaining such refund) to be paid to Parent promptly after it is received.  To the extent a Tax Refund paid over to Parent or any of its Affiliates hereunder is subsequently disallowed or otherwise reduced, Parent shall (or shall cause its applicable Affiliate to) pay to Purchaser the amount of such disallowed or reduced Tax Refund (net of reasonable costs or expenses, including Taxes, incurred by Parent or its Affiliates in obtaining such Tax Refund).

Section 7.4          Cooperation and Exchange of Information.

(a)          Not more than sixty (60) days after the receipt of a request from the other party, Parent or Purchaser (as the case may be) shall, and shall cause their respective Affiliates to, use commercially reasonable efforts to provide to the other party a package of Tax information materials, including schedules and work papers and copies of books and records (to the extent permitted by applicable Law), reasonably requested by such party to enable such party to prepare and file all Tax Returns required to be prepared and filed by it with respect to the Transferred Entities for any Tax period (or portion thereof) ending on (and including) or prior to the Closing Date.  Parent and Purchaser shall prepare any such package completely and accurately, in good faith and in a manner consistent with the preparing party’s past practice.

(b)         Each party to this Agreement shall, and shall cause its Affiliates to, provide to the other parties to this Agreement such reasonable assistance, cooperation, documentation and information as any of them reasonably may request in (i) filing any Tax Return, amended Tax Return or claim for refund, (ii) determining a liability for Taxes or (iii) conducting any Tax Proceeding.  Such cooperation and information shall include providing necessary powers of attorney, copies of all relevant portions of relevant Tax Returns, together with all relevant portions of relevant accompanying schedules and relevant work papers, relevant documents relating to rulings or other determinations by taxing authorities and relevant records concerning the ownership and Tax basis of property and other information, which any such party may possess.  Each party shall make its employees reasonably available on a mutually convenient basis, at its cost, to provide an explanation of any documents or information so provided.

(c)         From and after the Closing, each party shall use commercially reasonable efforts to retain all Tax Returns, schedules and work papers, and all material records and other documents relating to Tax matters, of the relevant entities (including, any the case of parent, any member of the Parent Group that held Noel Assets or Noel Liabilities prior to the Pre-Closing Restructuring) for their respective Tax periods (or portions thereof) ending on (and including) or prior to the Closing Date until the original expiration of the statute of limitations for the Tax periods to which the Tax Returns and other documents relate.

Section 7.5        Straddle Periods.  For purposes of determining the Parent Tax Liabilities (and, with respect to income Taxes in Working Capital), the parties shall utilize the following conventions for determining the amount of Taxes attributable to the portion of the Straddle Period ending on (and including) the Closing Date: (i) in the case of property Taxes and other similar Taxes imposed on a periodic basis, the amount attributable to the portion of the Straddle Period ending on the Closing Date shall equal the Taxes for the entire Straddle Period multiplied by a fraction, the numerator of which is the number of calendar days in the portion of the Straddle Period ending on (and including) the Closing Date and the denominator of which is the number of calendar days in the entire Straddle Period; and (ii) in the case of all other Taxes (including income Taxes, sales Taxes, value-added Taxes, employment Taxes, withholding Taxes, capital gains and similar Taxes), the amount attributable to the portion of the Straddle Period ending on the Closing Date shall be determined as if the Transferred Entity (and to the extent relevant, any other entity in which a Transferred Entity owns an equity interest) filed a separate Tax Return with respect to such Taxes for the portion of the Straddle Period ending as of the end of the day on the Closing Date suing a “closing of the books methodology;” provided, that (A) exemptions, allowances or deductions that are calculated on an annual basis (including depreciation and amortization deductions) shall be allocated between the period ending on (and including) the Closing Date and the period beginning after the Closing Date in proportion to the number of days in each period to which such exemption, allowance or deduction is applicable, (B) all income Tax assets of the Transferred Entities that in each case are allocable to any taxable period (or portion thereof) ending on (and including) or before the Closing Date under the principles of this Agreement shall be utilized to reduce the liability for income Taxes otherwise included in the calculation of Working Capital, but only to the extent permitted under applicable Law to be utilized in such period with respect to such liability for income Taxes (and, to the extent such Tax assets are not utilized to reduce such liability in such period, such Tax assets shall not be included as assets in the calculation of Working Capital), and (C) Tax liabilities determined under Sections 951 and 951A of the Code shall be determined by assuming that the taxable period of each of the relevant CFCs ended as of the Closing Date (such that all Tax liabilities with respect to income of such CFCs under Sections 951 and 951A of the Code that are attributable to economic activity occurring on or before the Closing Date will be taken into account).

Section 7.6         Tax Sharing Agreements.  On or before the Closing Date, provided a Clear Exit Amount (if required) has been made by the Transferred Entities to the Seller Group under an Australian Tax Sharing Agreement, the rights and obligations of the Transferred Entities pursuant to all Tax Sharing Agreements or arrangements (other than this Agreement), if any, to which any of the Transferred Entities, on the one hand, and any member of the Parent Group, on the other hand, are parties, shall terminate, and neither any member of the Parent Group, on the one hand, nor any of the Transferred Entities, on the other hand, shall have any rights or obligations to each other after the Closing in respect of such agreements or arrangements, unless provided otherwise under an Australian Tax Sharing Agreement.

Section 7.7          Tax Treatment of Payments.  Except to the extent otherwise required pursuant to a “determination” (within the meaning of Section 1313(a) of the Code or any similar provision of state, local or foreign Law), Parent, Purchaser, the Transferred Entities and their respective Affiliates shall treat any and all payments under this Agreement following the Closing Date as an adjustment to the purchase price for all Tax purposes, in each case to the maximum extent permitted by applicable Law.

Section 7.8       Certain Tax Elections.  Purchaser shall make, or shall join with Parent in making, as applicable, and shall cause its Affiliates (including the other Transferred Entities) to make an election under Section 338(g) or Section 338(h)(10) of the Code (or any comparable election under state, local or foreign Law) (“Section 338 Elections”) with respect to the acquisition of a Transferred Entity at the request of Parent in accordance with this Section 7.8.  Purchaser shall not make, and shall cause its Affiliates (including the other Transferred Entities) not to make (i) any Section 338 Elections other than Section 338 Elections requested by Parent pursuant to the preceding sentence or (ii) any election with respect to any Transferred Entity (including any entity classification election pursuant to Treasury Regulations Section  ###-###-####-3), which election would be effective on or prior to the Closing Date.  If Parent has requested a Section 338 Election, the parties shall cooperate to prepare and timely file, or cause to be prepared and timely filed, IRS Form(s) 8023 and any comparable, analogous or similar forms under state or local Law, together with any attachments thereto required to be filed in order to effect any Section 338(h)(10) election made pursuant to this Section 7.8 (excluding any IRS Form 8883) (collectively, the “Section 338 Forms”).  Parent shall prepare an initial draft of any Form 8883 to be filed in connection with any Section 338 Elections made pursuant to this Section 7.8 consistently with the Allocation Schedule as finally determined pursuant to Section 7.13 and shall provide Purchaser with a draft copy of such IRS Form 8883 for review and comment not later than thirty (30) days prior to the due date for filing of such IRS Form 8883, and shall consider in good faith any reasonable comments provided by Purchaser not later than fifteen (15) days prior to the due date for filing such IRS Form 8883.  The Section 338 Forms will be duly executed (to the extent required to make valid any Section 338 Election) by Parent and Purchaser and will be timely filed by each Party as required by Law.  In the case of any Transferred Entity treated as a “controlled foreign corporation” (within the meaning of Section 957(a) of the Code) for U.S. federal income tax purposes as of the Closing Date (“CFC”) with respect to which no Section 338 Election is made pursuant to this Section 7.8 and with respect to which the election under Treasury Regulations Section 1.245A-5(e)(3)(i) to close the taxable year of such Transferred Entity for U.S. federal income Tax purposes as of the end of the Closing Date (“Section 245A Election”) is available under applicable Law, the parties shall, and shall cause their respective Affiliates (including the Transferred Entities) to, cooperate in timely making a Section 245A Election, and shall take any commercially reasonable actions reasonably necessary and appropriate to effect and preserve any Section 245A Election in accordance with the provisions of Treasury Regulations Section 1.245A-5(e)(3)(i); provided, that (i) with respect to each CFC, Parent shall notify Purchaser within forty-five (45) Business Days after the Closing Date whether Parent has determined to make a Section 338 Election, a Section 245A Election or neither pursuant to this Section 7.8 (provided, that in the event that Parent determines to make a Section 338 Election or a Section 245A Election for such CFC, such determination shall be final and binding for purposes of this Agreement) and (ii) with respect to any CFC for which no Section 338 Election or Section 245A Election will be made, the CFC Tax Amount for such CFC shall be taken into account as a Tax liability in Working Capital.  Parent and Purchaser shall reasonably cooperate to determine the CFC Tax Amount.  For the avoidance of doubt, no CFC Tax Amount shall be taken into account as a Tax liability in Working Capital with respect to any CFC for which Parent has determined in accordance with this Section 7.8 that a Section 338 Election or a Section 245A Election will be made.  This Section 7.8 is intended to satisfy the requirement for a binding agreement under Treasury Regulations Section 1.245A-5(e)(3)(i)(C)(2) with respect to each Transferred Entity for which a Section 245A Election is made.  Neither Parent nor Purchaser shall file, and or cause its Affiliates to file, any Tax Returns in a manner that is inconsistent with any Section 338 Elections or Section 245A Elections made pursuant to this Section 7.8, except as otherwise required by a “determination” within the meaning of Section 1313(a) of the Code.

Section 7.9        Transfer Taxes.  Notwithstanding anything to the contrary in this Agreement, each of Parent and Purchaser shall pay, when due, and be responsible for, fifty percent (50%) of any sales, use, transfer, real property transfer, registration, documentary, stamp or similar Taxes and related fees and costs imposed on or payable in connection with the transactions contemplated by this Agreement (excluding any Taxes measured by net income or gain, or any franchise, withholding or similar Taxes, “Transfer Taxes”); provided that any Transfer Taxes with respect to the Pre-Closing Restructuring shall be borne exclusively by Parent.  The party responsible under applicable Law for filing the Tax Returns with respect to any such Transfer Taxes shall prepare and timely file such Tax Returns and promptly provide a copy of such Tax Return to the other party; provided, further, that in the case of United Kingdom stamp duty Purchaser shall be deemed to be responsible for filing any required Tax Returns in relation to the transfer of the Transferred Entities incorporated in the United Kingdom for these purposes only.  Parent and Purchaser shall, and shall cause their respective Affiliates to, cooperate to timely prepare and file any Tax Returns or other filings relating to such Transfer Taxes, including any claim for exemption or exclusion from the application or imposition of any Transfer Taxes; provided, that, notwithstanding any of the foregoing, neither Purchaser or any of its Affiliates nor Parent or any of its Affiliates shall be required to file any claim for exemption or exclusion from the application or imposition of any Transfer Taxes, or any claim for any reduction thereof, if such party reasonably determines that the filing of such claim or any related action would have an adverse effect on either Purchaser or any of its Affiliates or Parent or any of its Affiliates, as the case may be.

Section 7.10     Withholding.  All sums payable under this Agreement shall be paid free and clear of all deductions, withholdings, set-offs or counterclaims whatsoever save only as required by Law; provided that notwithstanding any other provision of this Agreement to the contrary, Purchaser and its agents or Affiliates shall be entitled to deduct and withhold from any amounts payable pursuant to this Agreement such amounts as are required to be deducted and withheld under applicable Law.  If any deductions or withholdings are required by Law, the payer shall account to the relevant Governmental Entity or Taxing Authority for the amount so required to be deducted or withheld and to the extent that amounts are so deducted or withheld in accordance with the preceding sentence and paid over to the relevant Governmental Entity or Taxing Authority, such amounts shall be treated for all purposes of this Agreement as having been paid to the Person in respect of which such deduction or withholding was made. To the extent any amounts are required to be deducted or withheld by Purchaser (i) other than with respect to capital gains Taxes imposed by Brazilian or Indian Law (the “Known Withholding Taxes”), Purchaser shall give to Parent written notice at least ten (10) Business Days prior to such payment, (ii) Purchaser shall reasonably cooperate with Parent to mitigate and reduce such withholding to the extent permitted by applicable Tax Law and (iii) to the extent such information is relevant to determining Purchaser’s obligation to deduct or withhold such amounts, Parent shall provide to Purchaser, no later than the delivery of the Preliminary Allocation pursuant to Section 7.12(b), calculations detailing the adjusted basis, the amount realized and any other information reasonably relevant to determine the obligations of Purchaser (the “Withholding Calculations”), which Withholding Calculations shall be prepared in accordance with applicable Law.  Parent and Purchaser shall utilize such Withholding Calculations to determine the amount of any required deduction or withholding.  Notwithstanding anything in this Section 7.10 to the contrary, to the extent that any Tax (other than the Known Withholding Taxes) is required to be withheld from any payment hereunder pursuant to this Section 7.10 as a result of Purchaser assigning, pursuant to Section 11.8, its right to purchase any Transferred Entity to an Affiliate organized in a jurisdiction other than (x) the jurisdiction of organization of such Transferred Entity or (y) the jurisdiction of organization of the entity that is selling such Transferred Entity, then Purchaser or such Affiliate, as applicable, shall remit to the applicable payee, along with such payment, an additional amount to place such payee in the same after-tax position as such payee would have been in had the applicable payment not been subject to such deduction or withholding.

Section 7.11        VAT.  Where under the terms of this Agreement one party is liable to indemnify or reimburse another party in respect of any costs, charges or expenses, the payment shall include an amount equal to any VAT thereon not otherwise recoverable by the other party or the representative member of any VAT group of which it forms part.  If any payment under this Agreement constitutes the consideration for a taxable supply for VAT purposes, then (i) the recipient shall provide to the payer a valid VAT invoice, and (ii) except where the reverse charge procedure applies, and subject to the provision of a valid VAT invoice in accordance with (i), in addition to that payment the payer shall pay to the recipient any VAT due.

Section 7.12       Allocation of Purchase Price.

(a)         Within one hundred twenty (120) days after final determination of the Post-Closing Adjustment and the Final Purchase Price (or as soon as reasonably practicable thereafter), Parent shall provide to Purchaser a schedule allocating the Final Purchase Price (together with any other relevant amounts, including liabilities deemed assumed for U.S. federal income tax purposes) among each of (i) the Transferred Entities, with any amount allocated to a Transferred Entity that is either (A) classified as a disregarded entity for U.S. federal income tax purposes or (B) for which a Section 338 Election has been or will be made allocated amongst the assets of such Transferred Entity and (ii) any other assets acquired pursuant to this Agreement or any Ancillary Agreement (including any treated as having been acquired for Tax purposes) in accordance with Code Sections 1060 and 338 and Treasury Regulations thereunder (the “Allocation Schedule”); provided, that the Allocation Schedule shall reflect not less than 88.6% of the Final Purchase Price as allocated to F&S Americas (the “Agreed U.S. Allocation”).  If within thirty (30) days after receiving the Allocation Schedule, Purchaser has not objected, the Allocation Schedule shall be final and binding.  If within thirty (30) days Purchaser objects to the Allocation Schedule, Parent and Purchaser shall cooperate in good faith to resolve their differences; provided, that to the extent the parties fail to agree on the Allocation Schedule, (x) the Allocation Schedule shall consist solely of the Agreed U.S. Allocation and (y) Parent, on the one hand, and Purchaser, on the other hand, shall otherwise each be entitled to prepare (and cause its respective Affiliates, including the Transferred Entities to prepare) its Tax Returns as it otherwise determines appropriate.  Purchaser and Parent agree for all U.S. federal, state and local Tax reporting purposes to report the transactions contemplated by this Agreement in accordance with the agreements in this Section 7.12(a) and the Allocation Schedule as finally determined pursuant to this Section 7.12(a), and to not take any position during the course of any audit or other legal proceeding inconsistent with the agreements in this Section 7.12(a) as to such Allocation Schedule unless required by “determination” within the meaning of Section 1313(a) of the Code.

(b)         Parent shall provide Purchaser no later than one (1) Business Day following the delivery of the Estimated Closing Statement an allocation of the Closing Purchase Price among the (i) Shares and (ii) any other assets acquired pursuant to this Agreement (including any treated as having been acquired for Tax purposes) (the “Preliminary Allocation”) which Preliminary Allocation shall be prepared in accordance with applicable Law and shall, to the extent applicable, be consistent with the Withholding Calculations delivered pursuant to Section 7.10.  If Purchaser disagrees with the Preliminary Allocation provided by Parent, Parent shall reasonably consider in good faith any comments of Purchaser.  For the avoidance of doubt, the Preliminary Allocation shall not be binding on the parties for purposes of Section 7.12(a); provided, however, that any such amounts shall be treated as final to the extent that such allocation is required to be final pursuant to applicable Law.

Section 7.13        Transaction Tax Deductions.  Parent, Purchaser, the Transferred Entities and their respective Affiliates agree that for all Tax purposes, the Transaction Tax Deductions shall be allocated to the Parent Group (to the maximum extent permitted under Law) and included in the Tax Returns that relate to the Pre-Closing Period, and the parties shall apply the safe harbor election set forth in IRS Revenue Procedure 2011-29 with respect to any success-based fees.

Section 7.14       Survival.  The covenants and agreements in this Article VII shall survive the Closing until ninety (90) days following the expiration of the applicable statute of limitations for the underlying Tax or Tax matter.

Section 8.1          Conditions to Obligation of Each Party to Close.  The respective obligations of each party to consummate the Closing shall be subject to the satisfaction or waiver at or prior to the Closing of the following conditions:

(a)          Regulatory Approvals.  The consents, authorizations and approvals required to be obtained in connection with the consummation of the Closing from any Governmental Entities set forth on Section 8.1(a) of the Parent Disclosure Schedule shall have been obtained (or any applicable waiting period thereunder shall have expired or been terminated).

(b)          No Injunctions.  No Governmental Entity of competent authority in the jurisdictions set forth on Section 8.1(b) of the Parent Disclosure Schedule shall have issued an Order or enacted a Law that remains in effect and makes illegal or prohibits the consummation of the Closing (collectively, the “Legal Restraints”).

Section 8.2         Conditions to Purchaser’s Obligation to Close.  Purchaser’s obligation to consummate the Closing shall be subject to the satisfaction or waiver at or prior to the Closing of all of the following conditions:

(a)          Representations and Warranties.  In the case of (i) and (iv), disregarding all “materiality,” “Business Material Adverse Effect” and similar qualifications contained in such representations and warranties, (i) the representations and warranties of Parent set forth in the first sentence of Section 3.1 (Organization and Qualification; Transferred Entities), Section 3.2 (Capitalization of the Transferred Entities) (other than the second sentence of Section 3.2(b)), Section 3.3 (Authority Relative to this Agreement), Section 3.5(d) (Financial Statements; Liabilities) and Section 3.21 (Brokers) shall be true and correct in all material respects as of the date hereof and as of the Closing Date as if made on and as of the Closing Date, (ii) the representations and warranties of Parent set forth in the second sentence of Section 3.2(b) (Capitalization of the Transferred Entities) shall be true in all respects (other than de minimis inaccuracies) as of the date hereof and as of the Closing Date as if made on and as of the Closing Date, (iii) the representations and warranties of Parent set forth in Section 3.6(b) (No Material Adverse Effect) shall be true and correct as of the date hereof and as of the Closing Date as if made on and as of the Closing Date and (iv) each of the other representations and warranties of Parent contained in Article III shall be true and correct as of the date hereof and as of the Closing Date as if made on and as of the Closing Date except (A) in each case of clauses (i), (ii), (iii) and (iv), representations and warranties that are made as of a specific date shall be true and correct (subject to the standards set forth herein) only on and as of such date and (B) in the case of clause (iv), where the failure of such representations and warranties to be true and correct would not reasonably be expected to have, individually or in the aggregate, a Business Material Adverse Effect.

(b)          Covenants and Agreements.  The covenants and agreements of Parent (including the covenants relating to the Pre-Closing Restructuring set forth in Section 5.15) to be performed on or before the Closing Date in accordance with this Agreement shall have been performed in all material respects.

(c)          Officer’s Certificate.  Purchaser shall have received a certificate, dated as of the Closing Date and signed on behalf of Parent by an executive officer of Parent, stating that the conditions specified in Section 8.2(a) and Section 8.2(b) have been satisfied.

Section 8.3          Conditions to Parent’s Obligation to Close.  The obligations of Parent to consummate the Closing shall be subject to the satisfaction or waiver at or prior to the Closing of all of the following conditions:

(a)          Representations and Warranties.  In the case of (ii), disregarding all “materiality,” “Purchaser Material Adverse Effect” and similar qualifications contained in such representations and warranties, (i) the representations and warranties of Purchaser set forth in Section 4.1 (Organization and Qualification), Section 4.2 (Authority Relative to this Agreement) and Section 4.5 (Brokers) shall be true and correct in all respects (other than de minimis inaccuracies) as of date hereof and as of the Closing Date as if made on and as of the Closing Date and (ii) each of the other representations and warranties of Purchaser contained in Article IV shall be true and correct in all respects as of date hereof and as of the Closing Date as if made on and as of the Closing Date, except (A) in each case, for such representations and warranties that are made as of a specific date shall be true and correct (subject to the standards set forth herein) only on and as of such date and (B) in the case of clause (ii), where the failure of such representations and warranties to be true and correct would not reasonably be expected to have, individually or in the aggregate, a Purchaser Material Adverse Effect.

(b)          Covenants and Agreements.  The covenants and agreements of Purchaser to be performed on or before the Closing Date in accordance with this Agreement shall have been performed in all material respects.

(c)          Officer’s Certificate.  Parent shall have received a certificate, dated as of the Closing Date and signed on behalf of Purchaser by an executive officer of Purchaser, stating that the conditions specified in Section 8.3(a) and Section 8.3(b) have been satisfied.

Section 8.4          Frustration of Closing Conditions.  No party may rely on the failure of any condition set forth in this Article VIII to be satisfied if such failure was caused by such party’s failure to perform any of its obligations under this Agreement.

Section 9.1          Termination.  This Agreement may be terminated at any time prior to the Closing:

(a)          by mutual written consent of Parent and Purchaser;

(b)          by either Parent or by Purchaser, if:

Section 9.2         Notice of Termination.  In the event of termination of this Agreement by either or both of Parent and Purchaser pursuant to Section 9.1, written notice of such termination shall be given by the terminating party to the other.

Section 9.3          Effect of Termination.  In the event of termination of this Agreement by either or both of Parent and Purchaser pursuant to Section 9.1, this Agreement shall terminate and become void and have no effect, and there shall be no Liability on the part of any party to this Agreement or its officers, directors, employees, equity holders, Affiliates, agents, successor or assigns, except as set forth in the Confidentiality Agreement, Section 5.2 (Confidentiality), Section 5.6 (Public Announcements), Article XI (General Provisions) and the second to last sentence of Section 5.1(a) (Access Indemnity); provided, that termination of this Agreement shall not relieve any party hereto from Liability for Willful Breach of this Agreement or in the case of Fraud.  Nothing herein shall limit or prevent any party from exercising any rights or remedies it may have under Section 11.11.  Notwithstanding anything to the contrary in this Agreement, the provisions of Section 5.2 (Confidentiality), Section 5.6 (Public Announcements), Article XI (General Provisions), the second to last sentence of Section 5.1(a) (Access Indemnity) and this Section 9.3 shall survive any termination of this Agreement.

Section 9.4          Extension; Waiver.  At any time prior to the Closing, either Parent, on the one hand, or Purchaser, on the other hand, may (a) extend the time for performance of any of the obligations or other acts of the other, (b) waive any inaccuracies in the representations and warranties of the other contained in this Agreement or in any document delivered pursuant to this Agreement or (c) waive compliance with any of the agreements or conditions of the other contained in this Agreement.  Any such extension or waiver shall be valid only if set forth in an instrument in writing signed by the party granting such extension or waiver.

Section 10.1     Survival of Representations, Warranties, Covenants and Agreements.  This Article X and those covenants and agreements set forth in this Agreement that by their terms contemplate performance in whole or in part after the Closing shall survive the Closing in accordance with their respective terms.  All representations and warranties, and all other covenants and agreements in this Agreement shall terminate at and not survive the Closing, and there shall be no liability after the Closing in respect thereof, except in the case of Fraud.  Without limiting the generality of the foregoing or anything else in this Agreement, from and after the Closing (other than in the case of Fraud), Purchaser, on behalf of itself, its Affiliates, and its and their respective Representatives, hereby fully, unconditionally and irrevocably waives (and discharges and releases Parent, its Affiliates and its and their respective Representatives, and its and their respective successors and assignees for) any and all claims, demands, torts, liens, suits, Actions, causes of action, debts, damages, obligations, liabilities and rights whatsoever, at law or in equity, whether known or unknown, suspected or unsuspected, now existing or which may hereafter accrue, directly or indirectly, arising out of or related to the transactions contemplated by this Agreement, other than with respect to any covenants or agreements that expressly survive the Closing pursuant to this Section 10.1 and the express rights to indemnification pursuant to Section 10.2.  Purchaser shall not make, and Purchaser shall not permit any of its Affiliates to make, any claim or demand, or commence any proceeding asserting any claim or demand, including any claim of contribution or any indemnification, against any of Parent, its Affiliates and its and their respective Representatives, and its and their respective successors and assignees with respect to any Liabilities released pursuant to this Section 10.1.

Section 10.2       Indemnification by the Parent.  Effective as of and after the Closing, Parent shall defend, indemnify and hold harmless Purchaser, its Affiliates, its and their respective successors and assigns, and its and their respective directors, officers and employees (collectively, the “Purchaser Indemnified Parties”) from and against (i) any and all Losses (regardless of whether or not such Losses relate to a Third Party Claim) of the Purchaser Indemnified Parties, in each case, to the extent arising out of or resulting from any breach of any covenant or agreement of Parent contained in this Agreement that by its terms contemplate performance in whole or in part after the Closing and (ii) any and all Actions, Losses and Liabilities (regardless of whether or not such Losses or Liabilities relate to a Third Party Claim) of the Purchaser Indemnified Parties, in each case, arising out of or resulting from any Carrier Liabilities, including any Liability relating to, arising out of, or resulting from, the matters set forth on Schedule IV, in the case of clause (ii), whether any such Liability arises before or after the Closing, is known or unknown or contingent or accrued.  Parent covenants and agrees to the agreements and obligations in Schedule IV as if fully set forth herein.  Notwithstanding anything in this Agreement to the contrary, Parent’s indemnification obligations hereunder in respect of the Specified Tax Liability shall terminate at and not survive the seven (7) year anniversary of the Closing Date and there shall be no liability to Parent or any of its Affiliates under this Agreement after such date in respect of the Specified Tax Liability.  The termination of Parent’s indemnification obligations hereunder in respect of the Specified Tax Liability shall not be tolled, delayed, or stayed to any period after the seven (7) year anniversary of the Closing Date for any reason, including due to any Purchaser Indemnified Party having made (whether before or after the termination of the applicable period) an indemnification claim pursuant to this Agreement or due to any pending or ongoing Tax Claim.

Section 10.3      Indemnification by Purchaser.  Effective as of and after the Closing, Purchaser shall indemnify and hold harmless Parent, its Affiliates, its and their respective successors and assigns, and its and their respective directors, officers and employees (collectively, the “Parent Indemnified Parties”), from and against any and all Losses (regardless of whether or not such Losses relate to a Third Party Claim) actually incurred or suffered by any of the Parent Indemnified Parties, to the extent arising out of or resulting from (i) any breach of any covenant or agreement of Purchaser or any other Transferred Entity contained in this Agreement that by its terms contemplate performance in whole or in part after the Closing; and (ii) any Noel Liability, whether any such Liability arises before or after Closing, is known or unknown, or contingent or accrued.

Section 10.4        Indemnification Procedures.

(a)          A Person that may be entitled to be indemnified under this Agreement (the “Indemnified Party”) shall promptly notify the party liable for such indemnification (the “Indemnifying Party”) in writing of any pending or threatened claim or demand asserted, or any other matter or circumstance that arises, that has given or could reasonably be expected to give rise to a right of indemnification under this Agreement (including a pending or threatened claim or demand asserted by a third party against the Indemnified Party, such claim being a “Third Party Claim”); provided, that the failure to provide such notice shall not release the Indemnifying Party from any of its obligations under this Article X except if the Indemnifying Party is materially prejudiced by such failure (and then only to the extent of such material prejudice), it being agreed that any such notice must describe in reasonable detail the facts and circumstances with respect to the subject matter of such claim, demand, matter or circumstance, the provisions of this Agreement pursuant to which indemnification may be sought and an estimate of the Indemnified Party’s Losses.

(b)          Upon receipt of a notice of a Third Party Claim for indemnity from an Indemnified Party pursuant to Section 10.2, or Section 10.3, the Indemnifying Party will be entitled, by notice to the Indemnified Party delivered within fifteen (15) Business Days of the receipt of notice of such Third Party Claim (or sooner, if the nature of such Third Party Claim so requires), to assume the defense and control of such Third Party Claim (at the expense of such Indemnifying Party); provided that any such assumption shall include an acknowledgment that the Indemnified Party is entitled to indemnification pursuant to this Article X; provided, further, that no Indemnifying Party shall have the right to assume the defense of any Third Party Claim that is a criminal claim or involves any allegations of criminal wrongdoing or fraud.  If the Indemnifying Party does not assume the defense and control of any Third Party Claim pursuant to this Section 10.4(b), the Indemnified Party shall be entitled to assume and control such defense, but the Indemnifying Party may nonetheless participate in the defense of such Third Party Claim with its own counsel and at its own expense.  If the Indemnifying Party assumes the defense and control of a Third Party Claim, the Indemnifying Party shall be entitled to select counsel, contractors and consultants.  Purchaser or Parent, as the case may be, shall, and shall cause each of their Affiliates and Representatives to, reasonably cooperate with the Indemnifying Party in the defense of any Third Party Claim, including by furnishing and preserving books and records, personnel and witnesses, as appropriate for any defense of such Third Party Claim.  If the Indemnifying Party has assumed the defense and control of a Third Party Claim, it shall be authorized to consent to a settlement of, or the entry of any judgment arising from, any Third Party Claim, in its sole discretion and without the consent of any Indemnified Party; provided, that such settlement or judgment (i) does not involve any injunctive relief or finding or admission of any violation of Law or admission of any wrongdoing or liability by any Indemnified Party or otherwise impose any material obligation on any Indemnified Party, (ii) includes a complete and unconditional release of, or dismissal with prejudice of claims against, the Indemnified Party from all matters that were asserted in connection with such claims and any and all Liabilities in respect of such Third Party Claim, and (iii) requires the Indemnifying Party (and not the Indemnified Party or any other Person) to pay or cause to be paid all amounts in such settlement or judgment.  No Indemnified Party will consent to the entry of any judgment or enter into any settlement or compromise with respect to a Third Party Claim without the prior written consent of the Indemnifying Party (not to be unreasonably withheld, conditioned or delayed).

(c)          This Section 10.4 shall not apply to Third Party Claims with respect to Taxes, which shall be governed by Section 7.2.

Section 10.5       Exclusive Remedy.  Except with respect to the matters covered by Section 2.5 through 2.7, Section 5.2, Section 5.6, Section 5.9 through Section 5.11, Section 5.14 and Article VII, for the parties’ right to seek and obtain any equitable relief pursuant to Section 11.11 and in the event of Fraud, the parties acknowledge and agree that, following the Closing, the indemnification provisions of this Article X shall be the sole and exclusive remedies of Parent and Purchaser for any Liabilities or Losses (including any Liabilities or Losses from claims for breach of contract, warranty, tortious conduct (including negligence) or otherwise and whether predicated on common law, statute, strict liability, or otherwise) that each party may at any time suffer or incur, or become subject to, as a result of, or in connection with, the Sale or the other transactions contemplated hereby, including any breach of any representation or warranty in this Agreement by any party, or any failure by any party to perform or comply with any covenant or agreement that, by its terms, was to have been performed, or complied with, under this Agreement and the Pre-Closing Restructuring Agreements (but excluding, for the avoidance of doubt, the Ancillary Agreements and the Confidentiality Agreement).

Section 10.6      Additional Indemnification Provisions.  With respect to each indemnification obligation contained in this Agreement, all Losses shall be reduced by the amount of any third-party insurance or self-insurance (including under any R&W Insurance Policy), representation and warranty or other indemnity or reimbursement proceeds that have been actually received by the Indemnified Party (net of any Losses in connection with the collection of such proceeds) in connection with the facts giving rise to the right of indemnification (it being agreed that if such proceeds in respect of such facts are recovered by the Indemnified Party subsequent to the Indemnifying Party’s making of an indemnification payment in satisfaction of its applicable indemnification obligation, such proceeds shall be promptly remitted to the Indemnifying Party to the extent such reduction of the Losses would have reduced the Indemnifying Party’s indemnification obligations).

Section 10.7        Limitation of Liability.  Notwithstanding anything to the contrary in this Agreement, (a) except to the extent awarded by a court of competent jurisdiction to a third party, in no event shall any Indemnifying Party have Liability to any Indemnified Party for, and Losses shall not be deemed to include punitive damages, (b) neither the Purchaser Indemnified Parties, on the one hand, nor the Parent Indemnified Parties, on the other hand, shall be entitled to recover more than once in respect of any Loss, (c) in no event shall any Indemnified Party be entitled to indemnification pursuant to this Article X to the extent any Losses were attributable to such Indemnified Party’s own fraud, gross negligence or willful misconduct and (d) no Purchaser Indemnified Parties shall be entitled to be indemnified for any Losses to the extent such Losses are reflected in the Final Closing Statement.  In no event shall Parent’s aggregate Liability arising out of Section 10.2(i) of this Agreement exceed the Closing Purchase Price.

Section 10.8        Mitigation.  Except with respect to the matters covered by Section 5.14, each of the parties agrees to use, and to cause its Affiliates to use, its reasonable best efforts to mitigate its respective Losses upon and after becoming aware of any event or condition that would reasonably be expected to give rise to any Losses that are indemnifiable hereunder, and no Indemnifying Party shall be liable for any Losses to the extent they arise out of or result from the Indemnified Party’s failure to use reasonable best efforts to mitigate such Losses; provided that no party, nor any of such party’s Affiliates, shall be required to mitigate its Losses by pursuing any Action against any of their respective customers or suppliers.

Section 10.9          No Right of Set-Off.  Neither Parent, on the one hand, nor Purchaser, on the other hand, shall have any right to set off any Losses under this Article X against any payments to be made by such party or parties pursuant to this Agreement or any other agreement among the parties, including any Ancillary Agreement.

Section 11.1        Interpretation; Absence of Presumption.

(a)         It is understood and agreed that the specification of any dollar amount in the representations and warranties contained in this Agreement or the inclusion of any specific item in the Parent Disclosure Schedule or Purchaser Disclosure Schedule is not intended to imply that such amounts or higher or lower amounts, or the items so included or other items, are or are not material or would reasonably be expected to have a Business Material Adverse Effect or Purchaser Material Adverse Effect, and no party shall use the fact of the setting of such amounts or the fact of the inclusion of any such item in the Parent Disclosure Schedule or Purchaser Disclosure Schedule in any dispute or controversy between the parties as to whether any obligation, item or matter not described in this Agreement or included in the Parent Disclosure Schedule or Purchaser Disclosure Schedule is or is not material or would reasonably be expected to have a Business Material Adverse Effect or Purchaser Material Adverse Effect for the purposes of this Agreement.

(b)         For the purposes of this Agreement, (i) words in the singular shall be held to include the plural and vice versa, and words of one gender shall be held to include the other gender as the context requires; (ii) references to the terms Article, Section, paragraph, Exhibit and Schedule are references to the Articles, Sections, paragraphs, Exhibits and Schedules to this Agreement unless otherwise specified; (iii) all Exhibits and Schedules annexed hereto or referred to herein are hereby incorporated in and made a part of this Agreement as if set forth in full herein; (iv) any capitalized terms used in any Exhibit or Schedule but not otherwise defined therein shall have the meaning as defined in this Agreement; (v) the terms “hereof,” “herein,” “hereby,” “hereto” and derivative or similar words refer to this entire Agreement, including the Schedules and Exhibits hereto; (vi) references to “$” shall mean U.S. dollars; (vii) the word “including” and words of similar import when used in this Agreement and the Ancillary Agreements shall mean “including without limitation,” unless otherwise specified; (viii) the word “or” shall not be exclusive; (ix) references to “written” or “in writing” include in electronic form; (x) provisions shall apply, when appropriate, to successive events and transactions; (xi) Parent and Purchaser have each participated in the negotiation and drafting of this Agreement and the Ancillary Agreements and if an ambiguity or question of interpretation should arise, this Agreement and the Ancillary Agreements shall be construed as if drafted jointly by the parties thereto and no presumption or burden of proof shall arise favoring or burdening either party by virtue of the authorship of any of the provisions in this Agreement or the Ancillary Agreements; (xii) references to any statute shall be deemed to refer to such statute as amended through the date of this Agreement and to any rules or regulations promulgated thereunder as amended through the date of this Agreement (provided, that for purposes of any representations and warranties contained in this Agreement that are made as of a specific date, references to any statute shall be deemed to refer to such statute and any rules or regulations promulgated thereunder as amended through such specific date); (xiii) references to any Contract are to that Contract as amended, modified or supplemented from time to time in accordance with the terms hereof and thereof to the extent such amendment, modification or supplement has been provided to Purchaser on or prior to the date hereof; (xiv) a reference to any Person includes such Person’s successors and permitted assigns; (xv) any reference to “days” shall mean calendar days unless Business Days are expressly specified; (xvi) when calculating the period of time before which, within which or following which any act is to be done or step taken pursuant to this Agreement, the date that is the reference date in calculating such period shall be excluded and if the last day of such period is not a Business Day, the period shall end on the next succeeding Business Day; (xvii) references from or through any date mean, unless otherwise specified, from and including or through and including, respectively; (xviii) amounts used in any calculations for purposes of this Agreement may be either positive or negative, it being understood that the addition of a negative number shall mean the subtraction of the absolute value of such negative number and the subtraction of a negative number shall mean the addition of the absolute value of such negative number; (xix) references to “ordinary course of business” shall mean the ordinary course of business, consistent with past practice of the Business or with the then-current practices in similar circumstances of other companies generally in the industry in which the Business operates; (xx) although the same or similar subject matters may be addressed in different provisions of this Agreement, the Parties intend that, except as expressly provided in this Agreement, each such provision shall be read separately, be given independent significance and not be construed as limiting any other provision of this Agreement (whether or not more general or more specific in scope, substance or content); and (xxi) the phrases “delivered,” “made available,” or “furnished” means that the information referred to has been physically or electronically delivered to the relevant parties or their respective Representatives no later than 11:59 p.m. on the date that is one (1) Business Day prior to the execution of this Agreement, including material that has been posted to the Data Room as of such time.  In the event of any conflict or inconsistency between the terms of this Agreement and any Ancillary Agreement, this Agreement will control.

(c)          Any disclosure with respect to a Section or schedule of this Agreement, including any Section of the Parent Disclosure Schedule or the Purchaser Disclosure Schedule, shall be deemed to be disclosed for other Sections and schedules of this Agreement, including any Section of the Parent Disclosure Schedule or Purchaser Disclosure Schedule, to the extent that the relevance of such disclosure is reasonably apparent on its face.

Section 11.2      Headings; Definitions.  The Section and Article headings contained in this Agreement and the Ancillary Agreements are inserted for convenience of reference only and will not affect the meaning or interpretation of this Agreement or the Ancillary Agreements.

Section 11.3         Governing Law; Jurisdiction and Forum; Waiver of Jury Trial.

(a)          This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of Delaware, without regard to any choice or conflict of law provision or rule (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.  In addition, each of the parties hereto irrevocably (i) submits to the personal jurisdiction of the Delaware Court of Chancery in and for New Castle County, or in the event (but only in the event) that such Delaware Court of Chancery does not have subject matter jurisdiction over such dispute, the United States District Court for the District of Delaware, or in the event (but only in the event) that such United States District Court also does not have jurisdiction over such dispute, any Delaware State court sitting in New Castle County, in the event any dispute (whether in contract, tort or otherwise) arises out of this Agreement or the transactions contemplated hereby, (ii) agrees that it will not attempt to deny or defeat such personal jurisdiction by motion or other request for leave from any such court, (iii) waives any objection to the laying of venue of any Action relating to this Agreement or the transactions contemplated hereby in such court, (iv) waives and agrees not to plead or claim in any such court that any Action relating to this Agreement or the transactions contemplated hereby brought in any such court has been brought in an inconvenient forum, and (v) agrees that it will not bring any Action relating to this Agreement or the transactions contemplated hereby in any court other than the Delaware Court of Chancery in and for New Castle County, or in the event (but only in the event) that such Delaware Court of Chancery does not have subject matter jurisdiction over such Action, the United States District Court for the District of Delaware, or in the event (but only in the event) that such United States District Court also does not have jurisdiction over such Action, any Delaware State court sitting in New Castle County.  Each party agrees that service of process upon such party in any such Action shall be effective if notice is given in accordance with Section 11.7.

(b)          EACH PARTY TO THIS AGREEMENT KNOWINGLY, UNCONDITIONALLY AND IRREVOCABLY WAIVES TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY ANY OF THEM AGAINST THE OTHER ARISING OUT OF OR CONNECTED WITH THIS AGREEMENT, THE ANCILLARY AGREEMENTS, THE CONFIDENTIALITY AGREEMENT OR ANY OTHER AGREEMENTS EXECUTED IN CONNECTION HEREWITH OR THEREWITH OR THE ADMINISTRATION HEREOF OR THEREOF OR THE SALE OR ANY OF THE OTHER TRANSACTIONS CONTEMPLATED HEREIN OR THEREIN, WHETHER SUCH CLAIMS ARE BASED IN TORT, CONTRACT OR OTHERWISE.  NO PARTY TO THIS AGREEMENT SHALL SEEK A JURY TRIAL IN ANY LAWSUIT, PROCEEDING, COUNTERCLAIM OR ANY OTHER LITIGATION PROCEDURE BASED UPON, OR ARISING OUT OF, THIS AGREEMENT OR ANY ANCILLARY AGREEMENTS, THE CONFIDENTIALITY AGREEMENT OR RELATED INSTRUMENTS.  NO PARTY WILL SEEK TO CONSOLIDATE ANY SUCH ACTION IN WHICH A JURY TRIAL HAS BEEN WAIVED WITH ANY OTHER ACTION IN WHICH A JURY TRIAL CANNOT BE OR HAS NOT BEEN WAIVED.  EACH PARTY TO THIS AGREEMENT CERTIFIES THAT IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS SET FORTH ABOVE IN THIS SECTION 11.3.  NO PARTY HAS AGREED WITH OR REPRESENTED TO ANY OTHER PARTY THAT THE PROVISIONS OF THIS SECTION 11.3 WILL NOT BE FULLY ENFORCED IN ALL INSTANCES.

Section 11.4      Entire Agreement.  This Agreement, together with the Ancillary Agreements and the Exhibits and Schedules hereto and thereto, and the Confidentiality Agreement, constitute the entire agreement between the parties with respect to the subject matter hereof and thereof and supersede any prior discussion, correspondence, negotiation, proposed term sheet, letter of intent, agreement, understanding or arrangement, whether oral or in writing.

Section 11.5       No Third Party Beneficiaries.  Except for the Purchaser Indemnified Parties and the Parent Indemnified Parties pursuant to Article X, the current and former directors and officers of the Transferred Entities indemnified pursuant to Section 5.10(a) which are intended to benefit, and to be enforceable by, the Persons specified therein, this Agreement is not intended to confer in or on behalf of any Person not a party to this Agreement (and their successors and assigns) any rights, benefits, causes of action or remedies with respect to the subject matter or any provision hereof.

Section 11.6        Expenses.  Except as otherwise set forth in this Agreement, whether the transactions contemplated by this Agreement are consummated or not, all legal and other costs and expenses incurred in connection with this Agreement and the transactions contemplated by this Agreement shall be paid by the party incurring such costs and expenses; provided, that Purchaser shall bear, in their entirety, the Competition and Foreign Investment Expenses and all Liabilities related to the D&O Tail.

Section 11.7         Notices.  All notices and other communications to be given to any party hereunder shall be sufficiently given for all purposes hereunder if in writing and delivered by hand, courier or overnight delivery service, or three (3) days after being mailed by certified or registered mail, return receipt requested, with appropriate postage prepaid, or by electronic mail (“e-mail”) transmission (so long as no failure message is generated), and shall be directed to the address set forth below (or at such other address as such party shall designate by like notice):

Section 11.8       Successors and Assigns.  This Agreement shall be binding upon and inure to the benefit of and be enforceable by the parties to this Agreement and their respective successors and assigns; provided, that no party to this Agreement may directly or indirectly assign (whether by operation of Law or otherwise) any or all of its rights or delegate any or all of its obligations under this Agreement without the express prior written consent of each other party to this Agreement; provided, further, that Purchaser may assign its rights and/or obligations, in whole or in part, to a direct or indirect wholly owned Subsidiary of Purchaser so long as (a) no such assignment will relieve Purchaser of its obligations under this Agreement and (b) such assignment is not reasonably expected to prevent, materially impair or materially delay the consummation of the transactions contemplated by this Agreement.  Any purported assignment in violation of this Section 11.8 shall be null and void.

Section 11.9        Amendments and Waivers.  This Agreement may not be modified or amended except by an instrument or instruments in writing signed by the party against whom enforcement of any such modification or amendment is sought.  Any party to this Agreement may, only by an instrument in writing, waive compliance by the other party to this Agreement with any term or provision of this Agreement on the part of such other party to this Agreement to be performed or complied with.  The waiver by any party to this Agreement of a breach of any term or provision of this Agreement shall not be construed as a waiver of any subsequent breach.  No failure or delay by any party in exercising any right, power or privilege hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege.

Section 11.10    Severability.  If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction or other authority to be invalid, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions of this Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any party hereto.  Upon such a determination, the parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the fullest extent possible.

Section 11.11       Specific Performance.

(a)          The parties hereto agree that irreparable damage, for which monetary damages (even if available) would not be an adequate remedy, would occur in the event that the parties hereto do not perform any provision of this Agreement in accordance with its specified terms or otherwise breach such provisions.  Accordingly, the parties acknowledge and agree that the parties shall be entitled to an injunction, specific performance and other equitable relief to prevent breaches or threatened breaches of this Agreement and to enforce specifically the terms and provisions hereof, in addition to any other remedy to which they are entitled in Law or in equity.  Each of the parties agrees that it will not oppose the granting of an injunction, specific performance and other equitable relief on the basis that any other party has an adequate remedy at Law.  Any party seeking an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement shall not be required to provide any bond or other security in connection with such order or injunction.

Section 11.12       Waiver of Conflicts Regarding Representation; Nonassertion of Attorney-Client Privilege.

(a)          Purchaser waives and will not assert, and agrees to cause its Subsidiaries, including the Transferred Entities, to waive and not to assert, any conflict of interest arising out of or relating to the representation, after the Closing, of Parent, any of its Affiliates or any shareholder, officer, employee or director of Parent or any of its Affiliates (any such Person, a “Designated Person”) in any matter involving this Agreement, the Ancillary Agreements or any other agreements or transactions contemplated hereby or thereby, including in connection with a dispute with Purchaser or its Subsidiaries, and following the Closing, with any Transferred Entity (including in respect of any claim for indemnification by Purchaser), by any legal counsel currently representing Parent or any of its Affiliates in connection with this Agreement, the Ancillary Agreements or any other agreements or transactions contemplated hereby or thereby, including Paul, Weiss, Rifkind, Wharton & Garrison LLP (“Paul Weiss,” and such representation the “Current Representation”).

(b)         Purchaser will not assert, and agrees to cause its Subsidiaries, including the Transferred Entities, not to assert, any attorney-client or other applicable legal privilege or protection with respect to any communication during the Current Representation between Paul Weiss, on the one hand, and any Designated Person, on the other hand regarding this Agreement, the Ancillary Agreements or any other agreements or transactions contemplated hereby or thereby, it being the intention of the parties hereto that all such rights to such attorney-client and other applicable legal privilege or protection and to control such attorney-client and other applicable legal privilege or protection shall be retained by Parent and that Parent, and not Purchaser or its Subsidiaries, including the Transferred Entities, shall have the sole right to decide whether or not to waive any attorney-client or other applicable legal privilege or protection.  Accordingly, from and after the Closing, none of Purchaser, its Subsidiaries or the Transferred Entities shall have to the right to use any such communications or to access the files of the Current Representation, all of which shall be and remain the property of Parent and not of Purchaser or its Subsidiaries, including the Transferred Entities, or to internal counsel relating to such engagement.

Section 11.13     No Admission.  Nothing herein shall be deemed an admission by Purchaser, Parent or any of their respective Affiliates, in any Action or proceeding by or on behalf of a third party, that Purchaser, Parent or any of their respective Affiliates, or that such third party or any of its Affiliates, is or is not in breach or violation of, or in default in, the performance or observance of any term or provisions of any Contract.

Section 11.14       Release.

(a)          Effective as of the Closing, except as otherwise set forth herein or in the Ancillary Agreements, Parent, on behalf of itself and each of its Subsidiaries and Affiliates, and each of their respective current and former officers, managers, directors, employees, partners, members, advisors, successors and assigns (collectively, the “Parent Releasing Parties”), hereby irrevocably and unconditionally releases and forever discharges Purchaser, its Affiliates (including the Transferred Entities) and each of their respective current and former officers, managers, directors, employees, partners, members, successors and assigns (collectively, the “Purchaser Released Parties”) of and from any and all Actions, causes of action, suits, proceedings, executions, judgments, duties, debts, dues, accounts, bonds, contracts and covenants (whether express or implied), and claims and demands whatsoever whether in law or in equity which the Parent Releasing Parties may have against each of the Purchaser Released Parties, now or in the future, in each case in respect of any cause, matter or thing relating to any of the Purchaser Released Parties occurring or arising on or prior to the date of this Agreement; provided, however, that the foregoing release shall not apply (i) in the event of Fraud, (ii) to the terms of this Agreement and any Ancillary Agreement, including those that expressly apply in respect of periods after the Closing, including (if applicable) the director and officer indemnification obligations set forth in Section 5.10 and the R&W Insurance Policy obligations set forth in Section 5.16, (iii) to claims that a Person may have relating to their status, capacity or conduct as (A) a member of the board of managers of a Transferred Entity or (B) a person who served at the specific request of the board of managers of the Company on behalf of a Transferred Entity as a partner, member, manager, member, officer, director, employee or agent of any other entity, (iv) to any Liability or Contract expressly contemplated by this Agreement or any Ancillary Agreement or any other agreement to be in effect between Parent and Purchaser (or their respective Affiliates) after the Closing, or any enforcement thereof or (v) any commercial or trade agreements or arrangements in effect between Parent or its Affiliates (other than the Transferred Entities), on the one hand, and Purchaser or its Affiliates (including the Transferred Entities), on the other hand.  Parent shall not, and shall cause the Parent Releasing Parties not to, make, any claim or demand, or commence any Action asserting any claim or demand, including any claim of contribution or any indemnification, against the Purchaser Released Parties and their respective successors and assignees with respect to any Liabilities released pursuant to this Section 11.14(a). The Purchaser Released Parties shall be entitled to recover consequential damages (including reasonable attorneys’ fees) in defending any claim, demand or Action brought in contravention of the foregoing sentence.

(b)          Effective as of the Closing, except as otherwise set forth herein or in the Ancillary Agreements or in the event of Fraud, the Purchaser, on behalf of itself and each of its Subsidiaries and Affiliates, and each of their respective current and former officers, managers, directors, employees, partners, members, advisors, successors and assigns (collectively, the “Purchaser Releasing Parties”), hereby irrevocably and unconditionally releases and forever discharges Parent, its Affiliates (but not the Transferred Entities) and each of their respective current and former officers, managers, directors, employees, partners, members, successors and assigns (collectively, the “Parent Released Parties”) of and from any and all Actions, causes of action, suits, proceedings, executions, judgments, duties, debts, dues, accounts, bonds, contracts and covenants (whether express or implied), and claims and demands whatsoever whether in law or in equity which the Purchaser Releasing Parties may have against each of the Parent Released Parties, now or in the future, in each case in respect of the Parent’s ownership of the Transferred Entities prior to the Closing of this Agreement; provided, however, that the foregoing release shall not apply (i) to the terms of this Agreement and any Ancillary Agreement, (ii) to any Liability or Contract expressly contemplated by this Agreement or any Ancillary Agreement or any other agreement to be in effect between Parent and Purchaser (or their respective Affiliates) after the Closing, or any enforcement thereof or (iii) any commercial or trade agreements or arrangements in effect between Parent or its Affiliates (other than the Transferred Entities), on the one hand, and Purchaser or its Affiliates (including the Transferred Entities), on the other hand.  Purchaser shall not, and shall cause the Purchaser Releasing Parties not to, make, any claim or demand, or commence any Action asserting any claim or demand, including any claim of contribution or any indemnification, against the Parent Released Parties and their respective successors and assignees with respect to any Liabilities released pursuant to this Section 11.14(b).  The Parent Released Parties shall be entitled to recover consequential damages (including reasonable attorneys’ fees) in defending any claim, demand or Action brought in contravention of the foregoing sentence.

Section 11.15      Counterparts.  This Agreement may be executed in one or more counterparts, and by the different parties in separate counterparts, each of which when executed shall be deemed to be an original but all of which taken together shall constitute one and the same agreement.  Delivery of an executed counterpart of a signature page to this Agreement by facsimile or other electronic method shall be as effective as delivery of a manually executed counterpart of this Agreement.