Agreement and Plan of Merger, dated as of April 16, 2023, by and among Acquisition Parent 0423 Inc., Acquisition Sub April 2023 Inc. and Charah Solutions, Inc

THIS AGREEMENT AND PLAN OF MERGER, dated as of April 16, 2023 (this “Agreement”), is made by and among Acquisition Parent 0423 Inc., a Delaware corporation (“Parent”), Acquisition Sub April 2023 Inc., a Delaware corporation and a direct, wholly owned Subsidiary of Parent (“Acquisition Sub”), and Charah Solutions, Inc., a Delaware corporation (the “Company”).

WHEREAS, the parties intend that, upon the terms and subject to the conditions set forth in this Agreement, Acquisition Sub shall merge with and into the Company (the “Merger”), with the Company continuing as the surviving corporation in the Merger, subject to, and pursuant to the terms of, the Delaware General Corporation Law (the “DGCL”).

WHEREAS, the board of directors of the Company has unanimously (a) approved this Agreement, the Merger and the other transactions contemplated hereby, (b) determined and declared that the Merger Agreement, the Merger and the other transactions contemplated hereby, taken together, are advisable and in the best interests of the Company and its stockholders and, (c) subject to the terms of this Agreement, resolved to recommend the adoption of this Agreement by the Company’s stockholders;

WHEREAS, the board of directors of Acquisition Sub has unanimously (a) approved and declared advisable this Agreement, the Merger and the other transactions contemplated hereby, (b) determined that the Merger and the other transactions contemplated hereby, taken together, are advisable and in the best interests of Acquisition Sub and its stockholder and (c) recommended the approval of this Agreement by Parent, as Acquisition Sub’s sole stockholder;

WHEREAS, concurrently with the execution of this Agreement, the holders of the Company Preferred Stock have entered into a letter agreement with Parent, substantially in the form attached hereto as Exhibit A (the “Letter Agreement”), pursuant to which such holders will, among other things, accept the offer of the redemption of the Company Preferred Stock (in order to effect a redemption of all of the Company Preferred Stock in accordance with Sections 7 or 8, as applicable, of the Company Certificates of Designation), with the acceptance of such redemption to be conditioned upon the consummation of the Merger (the “Company Preferred Redemption”);

WHEREAS, Parent, acting in its capacity as the sole stockholder of Acquisition Sub, has adopted this Agreement and the consummation of the transactions contemplated hereby, including the Merger;

WHEREAS, concurrently with the execution of this Agreement, and as a condition and inducement to the willingness of the Company to enter into this Agreement, Parent and Acquisition Sub have delivered to the Company limited guarantees (collectively, the “Guarantees”) of the Guarantors (as defined below), dated as of the date hereof, pursuant to which the Guarantors have guaranteed the obligations of Parent and Acquisition Sub; and

WHEREAS, each of Parent, Acquisition Sub and the Company desire to make certain representations, warranties, covenants and agreements in connection with the Merger and also to prescribe various conditions to the Merger.

NOW, THEREFORE, in consideration of the foregoing and the representations, warranties and covenants and subject to the conditions herein contained, and intending to be legally bound hereby, the parties hereby agree as follows:

Section 1.1          Definitions. Defined terms used in this Agreement have the respective meanings ascribed to them by definition in this Agreement or in Appendix I. Terms defined in the text of this Agreement have such meaning throughout this Agreement, unless otherwise indicated in this Agreement, and all terms defined in this Agreement shall have the meanings when used in any certificate or other document made or delivered pursuant hereto unless otherwise defined therein. Any capitalized terms used in any exhibits, annexes, appendices and schedules to this Agreement but not otherwise defined therein shall have the meaning as defined in this Agreement.

Section 1.2          Interpretation; Construction.

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

(b)        Disclosure of any fact, circumstance or information in any section of the Company Disclosure Letter or Parent Disclosure Letter shall be deemed to be disclosure of such fact, circumstance or information with respect to any other section of the Company Disclosure Letter or Parent Disclosure Letter, respectively, if it is reasonably apparent that such disclosure relates to any such other section. The inclusion of any item in the Company Disclosure Letter or Parent Disclosure Letter shall not be deemed to be an acknowledgment that the information is required to be disclosed or admission or evidence of materiality of such item, nor shall it establish any standard of materiality for any purpose whatsoever.

(c)        The words “hereof,” “herein,” “hereby,” “hereunder” and “herewith” and words of similar import shall refer to this Agreement as a whole and not to any particular provision of this Agreement. The word “party” will refer to the Parent, Company or Acquisition Sub, as the context requires, and the word “parties” will refer to the Parent, Company or Acquisition Sub, inclusive. The word “extent” in the phrase “to the extent” shall mean the degree to which a subject or other thing extends, and such phrase shall not mean simply “if.” References to articles, sections, clauses, paragraphs, exhibits, annexes, appendices and schedules are to the articles, sections, clauses and paragraphs of, and exhibits, annexes, appendices and schedules to, this Agreement, unless otherwise specified, and the table of contents and headings in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. Whenever the words “include,” “includes” or “including” are used in this Agreement, they shall be deemed to be followed by the phrase “without limitation.” Words describing the singular number shall be deemed to include the plural and vice versa, words denoting any gender shall be deemed to include all genders, words denoting natural persons shall be deemed to include business entities and vice versa and references to a Person are also to its permitted successors and assigns. The phrases “the date of this Agreement” and “the date hereof” and terms or phrases of similar import shall be deemed to refer to the date set forth in the Preamble. When used in reference to the Company or its Subsidiaries, the term “material” shall be measured against the Company and its Subsidiaries, taken as a whole. Whenever this Agreement requires Acquisition Sub to take any action, such requirement shall be deemed to include an undertaking by Parent to cause Acquisition Sub to take such action. Any Law defined or referred to herein or in any agreement or instrument that is referred to herein means such Law as from time to time amended, modified or supplemented, including (in the case of statutes) by succession of comparable successor Laws (provided that for purposes of any representations and warranties contained in this Agreement that are made as of a specific date or dates, references to any statute shall be deemed to refer to such statute, as amended, and to any rules or regulations promulgated thereunder, in each case, as of such date). References to any Person include the successors and permitted assigns of that Person. All references to “dollars” or “$” refer to currency of the United States of America. All references to “U.S.” or the “United States” are to the United States of America, including its territories and possessions. Any accounting terms used, but not specifically defined, in this Agreement shall be construed in accordance with GAAP as applied by the Company in its latest audited financial statements prior to the date hereof. Any reference to “days” means calendar days unless Business Days are expressly specified. 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. Unless otherwise specified, the words “made available to” or “delivered to” Parent or Acquisition Sub (or words of similar import) include the documents and information posted to the VDR at least two Business Days prior to the date of this Agreement.

Section 2.1          The Merger. Upon the terms and subject to the conditions of this Agreement, and in accordance with the DGCL, at the Effective Time, Acquisition Sub shall be merged with and into the Company, whereupon the separate corporate existence of Acquisition Sub shall cease, and the Company shall continue under the name “Charah Solutions, Inc.” as the surviving corporation (the “Surviving Corporation”) and shall continue to be governed by the laws of the State of Delaware.

Section 2.2          The Closing. Subject to the provisions of Article VII, and unless this Agreement shall have been earlier terminated in accordance with Section 8.1, the closing of the Merger (the “Closing”) shall take place at 9:00 a.m. (New York time) on a date to be specified by the Company and Parent, but no later than the third Business Day after the satisfaction or, to the extent not prohibited by Law, waiver of all of the conditions set forth in Article VII (other than those conditions that by their terms are to be satisfied at the Closing, but subject to the satisfaction or, to the extent not prohibited by Law, waiver of such conditions at the Closing), and the Closing shall take place remotely by the electronic exchange of documents, unless another time, date or place is agreed to in writing by the Company and Parent (such date being the “Closing Date”).

Section 2.3          Effective Time.

(a)       Concurrently with the Closing, each of the Company, Parent and Acquisition Sub shall cause a certificate of merger with respect to the Merger (the “Certificate of Merger”) to be executed, acknowledged, delivered to and filed with the Office of the Secretary of State of the State of Delaware (the “Secretary”) as provided under the DGCL. The Merger shall become effective on the date and time at which the Certificate of Merger has been filed with the Secretary (such date and time of filing, or such later time as may be agreed to by Parent, Acquisition Sub and the Company and set forth in the Certificate of Merger, being hereinafter referred to as the “Effective Time”).

(b)         From and after the Effective Time, the Merger shall have the effects set forth in the applicable provisions of the DGCL, this Agreement and the Certificate of Merger. Without limiting the generality of the foregoing, from and after the Effective Time, the Surviving Corporation shall possess all properties, rights, privileges, immunities, powers and franchises of the Company and Acquisition Sub, and all of the claims, obligations, liabilities, debts and duties of the Company and Acquisition Sub shall become the claims, obligations, liabilities, debts and duties of the Surviving Corporation.

Section 2.4        Certificate of Incorporation and Bylaws. Subject to compliance with Section 6.6, at the Effective Time, the certificate of incorporation and bylaws of the Surviving Corporation shall be amended and restated to be identical to the certificate of incorporation and bylaws of Acquisition Sub (in the forms attached hereto as Exhibit B), until thereafter amended in accordance with the applicable provisions of the certificate of incorporation and bylaws of the Surviving Corporation and the DGCL, except that (a) in each case, the name of the Surviving Corporation shall be Charah Solutions, Inc. and (b) the indemnity provisions shall be the same as those under the Company Charter and the Company Bylaws, respectively, in each case, as in effect immediately prior to the Effective Time.

Section 2.5        Board of Directors. The board of directors of the Surviving Corporation effective as of, and immediately following, the Effective Time shall consist of the members of the board of directors of Acquisition Sub immediately prior to the Effective Time, each to hold office in accordance with the certificate of incorporation and bylaws of the Surviving Corporation until their respective successors shall have been duly elected, designated and qualified, or until their earlier death, resignation or removal in accordance with the certificate of incorporation and bylaws of the Surviving Corporation.

Section 2.6          Officers. From and after the Effective Time, the officers of Acquisition Sub at the Effective Time shall be the officers of the Surviving Corporation, until their respective successors shall have been duly elected or appointed and qualified, or until their earlier death, resignation or removal in accordance with the certificate of incorporation and bylaws of the Surviving Corporation.

(a)          Cancellation of Company Securities. At the Effective Time, by virtue of the Merger and without any action on the part of the Company, Parent, Acquisition Sub, any Company stockholder or any other Person, each share of common stock, par value $0.01 per share, of the Company (the “Company Common Stock” and together with the Company Preferred Stock, the “Company Stock”) held by the Company or any Subsidiary of the Company (including shares held as treasury Stock) and not held on behalf of third parties or held, directly or indirectly, by Parent or Acquisition Sub or any of their wholly owned Subsidiaries, in each case, immediately prior to the Effective Time, shall automatically be cancelled and retired and shall cease to exist as issued or outstanding shares, and no consideration or payment shall be delivered in exchange therefor or in respect thereof.

(b)          Conversion of Company Common Stock; Redemption of Preferred Stock.

(c)          Conversion of Acquisition Sub Capital Stock. At the Effective Time, by virtue of the Merger and without any action on the part of the Company, Parent, Acquisition Sub, any holder of equity interest in the Company or any other Person, each share of common stock, $0.01 par value per share, of Acquisition Sub issued and outstanding immediately prior to the Effective Time shall automatically be converted into and become one validly issued, fully paid, non-assessable share of common stock, $0.01 par value per share, of the Surviving Corporation and shall constitute the only issued or outstanding shares of capital stock of the Surviving Corporation as of immediately following the Effective Time.

(d)          Adjustments. Without limiting the other provisions of this Agreement, if at any time during the period between the date of this Agreement and the Effective Time, any change in the number of outstanding shares of Company Common Stock shall occur as a result of a reclassification, recapitalization, stock split (including a reverse stock split) or similar event, or combination, exchange or readjustment of shares, or any stock dividend with a record date during such period, the Common Per Share Merger Consideration and any other similarly dependent items, as the case may be, shall be equitably adjusted to provide the same economic effect as contemplated by this Agreement prior to such event. Nothing in this Section 3.1(d) shall be construed to permit any party to take any action that is otherwise prohibited or restricted by any other provision of this Agreement.

Section 3.2          Payment for Securities; Exchange of Certificates.

(a)          Designation of Paying Agent; Deposit of Exchange Fund. No later than five days prior to the Effective Time, Parent shall, at its sole cost and expense, designate a reputable bank or trust company (the “Paying Agent”) that is organized and doing business under the laws of the United States, the identity and the terms of appointment of which to be reasonably acceptable to the Company, for the purposes of exchanging Certificates and Book-Entry Evidence for the Merger Consideration into which the number of shares of Company Stock previously represented by such Certificate or Book-Entry Evidence shall have been converted pursuant to this Agreement, and to act as paying agent for the payment of the Aggregate Merger Consideration, and shall enter into an agreement (the “Paying Agent Agreement”) relating to the Paying Agent’s responsibilities with respect thereto, in form and substance reasonably acceptable to the Company. Prior to the Effective Time, Parent shall deposit, or cause to be deposited with the Paying Agent, cash constituting an amount equal to the Aggregate Merger Consideration (such Aggregate Merger Consideration as deposited with the Paying Agent, the “Exchange Fund”).  In the event the Exchange Fund shall be insufficient to make the payments contemplated by Section 3.1(b), Parent shall promptly deposit, or cause to be deposited, additional funds with the Paying Agent in an amount which is equal to the deficiency in the amount required to make such payments in full. Parent shall cause the Exchange Fund to be (i) held for the benefit of the holders of Company Stock and (ii) applied promptly to making the payments pursuant to Section 3.1(b). The Exchange Fund shall not be used for any purpose other than to fund payments pursuant to Section 3.1(b), except as expressly provided for in this Agreement or agreed to by the parties.

(b)          Procedures for Exchange.

(i)          Certificates. As promptly as reasonably practicable following the Effective Time and in any event not later than the second Business Day thereafter, Parent shall cause the Paying Agent to mail to each holder of record of a Certificate that immediately prior to the Effective Time represented outstanding shares of Company Stock (A) a letter of transmittal, which shall specify that delivery shall be effected, and risk of loss and title to the Certificates shall pass, only upon proper delivery of the Certificates (or affidavits of loss in lieu thereof) to the Paying Agent and which shall be in the form and have such other provisions as Parent and the Company may reasonably specify and (B) instructions for use in effecting the surrender of the Certificates in exchange for an amount equal to the Merger Consideration into which the number of shares of Company Stock previously represented by such Certificate shall have been converted pursuant to this Agreement (which instructions shall be in the form and have such other provisions as Parent and the Company may reasonably specify).

(ii)          Book-Entry Evidence. As promptly as reasonably practicable following the Effective Time and in any event not later than the second Business Day thereafter, Parent shall cause the Paying Agent to mail to each holder of record of a Book-Entry Evidence not held through American Stock Transfer & Trust Company, LLC (and to deliver to American Stock Transfer & Trust Company, LLC, in the case of holders of Book-Entry Evidence held through the American Stock Transfer & Trust Company, LLC) that immediately prior to the Effective Time represented outstanding shares of Company Stock (A) a letter of transmittal, which shall be in the form and have such other provisions as Parent and the Company may reasonably specify, and (B) instructions for returning such letter of transmittal in exchange for the right to receive an amount equal to the Merger Consideration into which the number of shares of Company Stock previously represented by such Book-Entry Evidence shall have been converted pursuant to this Agreement (which instructions shall be in the form and have such other provisions as Parent and the Company may reasonably specify). Notwithstanding anything to the contrary contained in this Agreement, (y) no holder of Book-Entry Evidence shall be required to deliver a Certificate and (z) no holders of Book-Entry Evidence held through American Stock Transfer & Trust Company, LLC shall be required to deliver an executed letter of transmittal to the Paying Agent to receive an amount equal to the Merger Consideration that such holder is entitled to receive pursuant to Section 3.1(b).

(c)        Timing of Exchange. Upon surrender of a Certificate (or affidavit of loss in lieu thereof) or Book-Entry Evidence for cancellation to the Paying Agent, together with, in the case of Certificates and Book-Entry Evidence not held through American Stock Transfer & Trust Company, LLC, a letter of transmittal duly completed and validly executed in accordance with the instructions thereto, or, in the case of Book-Entry Evidence held through American Stock Transfer & Trust Company, LLC, receipt of an “agent’s message” by the Paying Agent, and such other documents as may reasonably be required pursuant to such instructions, the holder of such Certificate or Book-Entry Evidence shall be entitled to receive in exchange therefor an amount equal to the Merger Consideration for each share of Company Stock formerly represented by such Certificate or Book-Entry Evidence upon the later to occur of (i) the Effective Time or (ii) the Paying Agent’s receipt of such Certificate (or affidavit of loss in lieu thereof), Book-Entry Evidence or “agent’s message,” and the Certificate (or affidavit of loss in lieu thereof) or Book-Entry Evidence so surrendered shall be forthwith cancelled. The Paying Agent Agreement shall provide that the Paying Agent shall accept such Certificates (or affidavits of loss in lieu thereof) or Book-Entry Evidence upon compliance with such reasonable terms and conditions as the Paying Agent may impose to effect an orderly exchange thereof in accordance with normal exchange practices. No interest shall be paid or accrued for the benefit of holders of the Certificates or Book-Entry Evidence on the Merger Consideration payable upon the surrender of the Certificates or Book-Entry Evidence.

(d)        Transfers; No Further Ownership Rights. From and after the Effective Time, there shall be no registration of transfers on the stock transfer books of the Company of shares of Company Stock that were outstanding immediately prior to the Effective Time. If Certificates or Book-Entry Evidence are presented to the Surviving Corporation, Parent or Paying Agent for transfer following the Effective Time, they shall be cancelled against delivery of the applicable Merger Consideration as provided for in Section 3.1(b) for each share of Company Stock formerly represented by such Certificates or Book-Entry Evidence. Payment of the Merger Consideration in accordance with the terms of this Article III shall be deemed to have been paid in full satisfaction of all rights pertaining to the shares of Company Stock formerly represented by such Certificates or Book-Entry Evidence.

(f)        Lost Certificates. If any Certificate shall have been lost, stolen, defaced or destroyed, then upon the making of an affidavit, in form and substance reasonably acceptable to Parent and the Company, of that fact by the Person claiming such Certificate to be lost, stolen or destroyed and, if reasonably required by the Surviving Corporation, the posting by such Person of a bond, in such reasonable and customary amount as the Surviving Corporation may direct, as indemnity against any claim that may be made against it with respect to such Certificate, the Paying Agent will issue in exchange for such lost, stolen, defaced or destroyed Certificate, an amount equal to the Merger Consideration to which the holder thereof is entitled pursuant to this Article III.]

(g)       Termination of Exchange Fund. Any portion of the Exchange Fund which remains unclaimed by or undistributed to the holders of the Certificates or Book-Entry Evidence for one year after the Effective Time shall be delivered to the Surviving Corporation, upon written demand, and any such holders prior to the Merger who have not theretofore complied with this Article III shall thereafter look only to the Surviving Corporation as a general creditor thereof for payment of their claims for Merger Consideration (without any interest thereon) in respect thereof, subject to abandoned property, escheat or similar Law.

(h)          No Liability. None of Parent, Acquisition Sub, the Company, the Surviving Corporation or the Paying Agent shall be liable to any Person in respect of any cash held in the Exchange Fund delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law.

(i)          Investment of Exchange Fund. The Paying Agent Agreement shall provide that the Paying Agent shall invest any cash included in the Exchange Fund as directed by Parent or, after the Effective Time, the Surviving Corporation; provided that (i) no such investment (including any losses thereon) shall relieve Parent or the Paying Agent from making the payments required by this Article III, and following any losses (or any diminishment of the Exchange Fund for any other reason below the level required to make prompt cash payment in full of the aggregate funds required to be paid pursuant to the terms hereof) Parent shall promptly provide additional funds to the Paying Agent for the benefit of the holders of Company Stock in the amount of such losses, (ii) no such investment shall have maturities that could prevent or delay payments to be made pursuant to this Agreement and (iii) all such investments shall be in short-term obligations of the United States of America with maturities of no more than 30 days or guaranteed by the United States of America and backed by the full faith and credit of the United States of America. Any interest or income produced by such investments will be payable to the Surviving Corporation or Parent, as directed by Parent.

(j)          Withholding. Notwithstanding anything to the contrary, each of Parent, Acquisition Sub, the Company, the Surviving Corporation and the Paying Agent, as applicable, shall be entitled to deduct and withhold from the amounts otherwise payable pursuant to this Agreement such amounts as it is required to deduct and withhold with respect to the making of such payment under applicable Tax Law. To the extent that amounts are so withheld and paid over to or deposited with the relevant Governmental Authority, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the Person in respect of which such deduction and withholding was made.

Section 3.3          Company Equity Awards.

(a)          Treatment of Company RSUs. At the Effective Time, each Company RSU that is outstanding immediately prior to the Effective Time shall, automatically and without any required action on the part of the holder thereof, vest (if unvested) and be cancelled and converted into the right to receive an amount in cash, without interest, equal to the product of (i) the total number of shares of Company Common Stock underlying such Company RSU (including any shares of Company Common Stock in respect of dividend equivalent units credited thereon) multiplied by (ii) the Merger Consideration, subject to Section 3.3(c).

(b)          Treatment of Company PSUs. At the Effective Time, each Company PSU that is outstanding immediately prior to the Effective Time shall, automatically and without any required action on the part of the holder thereof, vest (if unvested) and be cancelled and converted into the right to receive an amount in cash, without interest, equal to the product of (i) the number of shares of Company Common Stock underlying such Company PSU (determined based on the target level of performance and including any shares of Company Common Stock in respect of dividend equivalent units credited thereon) multiplied by (ii) the Merger Consideration, subject to Section 3.3(c).

(c)          Delivery of Company Equity Award Consideration; Withholding; Section 409A. Parent shall cause the Surviving Corporation to pay through the payroll system of the Surviving Corporation (to the extent applicable) to each holder of a Company Equity Award the amounts due pursuant to this Section 3.3, less any required withholding Taxes and without interest, promptly after the Effective Time (but no later than the first payroll date that occurs more than two Business Days following the Effective Time). Notwithstanding anything herein to the contrary, with respect to any Company Equity Award that constitutes nonqualified deferred compensation subject to Section 409A of the Code, such payment will be made at the earliest time permitted that will not trigger a Tax or penalty under Section 409A of the Code.

(d)          Further Actions.  All Company Equity Awards shall terminate as of the Effective Time, provided that such termination shall not impact the rights of any holder of a Company Equity Award to receive any amounts pursuant to Section 3.3(a), Section 3.3(b), and Section 3.3(c), and following the Effective Time, no holder of any Company Equity Awards will have any right to acquire any equity securities of the Company, the Surviving Corporation or any of their Subsidiaries as a result of such holder’s Company Equity Awards. Prior to the Effective Time, the Company shall take all actions that are reasonably necessary to effectuate the provisions of this Section 3.3.

Section 3.4          Dissenting Shares. Notwithstanding Section 3.1(b) or anything to the contrary contained in this Agreement, shares of Company Common Stock issued and outstanding immediately prior to the Effective Time, and held by a holder who is entitled to, and has properly exercised his, her or its demand for, appraisal rights under Section 262 of the DGCL (the “Dissenting Shares”), shall not be converted into or represent the right to receive an amount equal to the Merger Consideration to which the holder thereof is entitled pursuant to Article III, but the holders of such Dissenting Shares shall be entitled to receive payment of the fair value of such Dissenting Shares in accordance with the provisions of Section 262 of the DGCL; provided, however, that if any such holder of Dissenting Shares fails to perfect or  effectively withdraws or waives or otherwise loses his or her right to appraisal and payment under Section 262 of the DGCL (whether occurring before, at or after the Effective Time) or a court of competent jurisdiction determines that such holder is not entitled to the relief provided by Section 262 of the DGCL, such holder’s shares of Company Common Stock shall thereupon be deemed to have been converted into, as of the Effective Time, the right to receive the Common Per Share Merger Consideration, without any interest thereon, and such shares shall not thereafter be deemed to be Dissenting Shares. The Company shall give Parent prompt notice of any demands received by the Company for appraisal of shares of Company Common Stock, and Parent shall have the right to participate in all negotiations and proceedings with respect to such demands prior to the Effective Time and the Company shall not, except with the prior written consent of Parent, make any payment with respect to, or settle or offer to settle, any such demands.

Except (i) as disclosed in the Company Disclosure Letter (subject to Section 1.2(b)) or (ii) other than with respect to Section 4.1, Section 4.2, Section 4.3, or Section 4.4, as disclosed in the Company SEC Documents filed or furnished by the Company in the two years prior to the date of this Agreement (other than any disclosures set forth in any risk factor section (except to the extent such information under the heading “Risk Factors” consists of factual historical statements) or in any other section to the extent they are forward-looking statements or cautionary, predictive or forward-looking in nature), to the extent that it is reasonably apparent that the disclosure is relevant to a Section of this Article IV, the Company hereby represents and warrants to Parent as of the date hereof as follows:

Section 4.1        Organization and Qualification; Subsidiaries. Each of the Company and its Subsidiaries is a corporation, limited liability company or other entity duly organized, validly existing and (to the extent applicable) in good standing under the laws of the jurisdiction of its incorporation or organization and has the requisite entity power and authority to conduct its business as it is now being conducted. Each of the Company and its Subsidiaries is duly qualified or licensed to do business and (to the extent applicable) is in good standing in each jurisdiction in which the nature of the business conducted by it makes such qualification or licensing necessary, except where the failure to be so duly qualified or licensed and (to the extent applicable) in good standing would not have a Company Material Adverse Effect. The Company has made available to Parent true, complete and correct copies of (a) the Company’s amended and restated certificate of incorporation (as amended, the “Company Charter”), Certificate of Designations of Series A Preferred Stock and Certificate of Designations of Series B Preferred Stock (in each case, as amended, and collectively, the “Company Certificates of Designations”) and amended and restated bylaws (as amended, the “Company Bylaws”) and (b) the certificate of incorporation and bylaws or other organizational or constitutive documents or governing instruments of each of the Subsidiaries of the Company, in each case as currently in effect. The Company is not in violation of any of the provisions of the Company Charter, Company Certificates of Designations, or the Company Bylaws and no Subsidiary of the Company is in violation of any of the provisions of its organizational or constitutive documents or governing instruments. Section 4.1 of the Company Disclosure Letter sets forth a complete and correct list of each Subsidiary of the Company and its jurisdiction of organization.

Section 4.2          Capitalization.

(a)          As of April 14, 2023, the authorized capital stock of the Company consists of (i) 200,000,000 shares of Company Common Stock, (A) 3,402,624 of which were issued and outstanding, (B) 54,121 of which are reserved for issuance upon the vesting of outstanding Company RSUs and including any shares of Company Common Stock in respect of dividend equivalent units credited thereon, and (C) 23,700 of which are reserved for issuance of Company PSUs (assuming attainment of the target level of performance), and, in each case, including any shares of Company Common Stock in respect of dividend equivalent units credited thereon); and (ii) 50,000,000 shares of Company Preferred Stock, 26,000 of which were issued and outstanding, designated as Series A Preferred Stock, and 30,000 of which were issued and outstanding, designated as Series B Preferred Stock. All of the issued and outstanding shares of Company Common Stock and Company Preferred Stock have been, and all shares of Company Common Stock that may be issued prior to the Effective Time when issued will be, duly authorized and validly issued and are fully paid, nonassessable and not subject to or issued in violation of any purchase option, call option, right of first refusal, preemptive right, subscription right or any similar right under any provision of the DGCL, the Company Charter, the Company Certificates of Designation or any Contract to which the Company or any of its Subsidiaries is a party or otherwise bound. As of the date hereof, except as set forth above in this Section 4.2(a) or in Section 4.2(a) or Section 4.12(d) of the Company Disclosure Letter, there are no existing and outstanding (A) options, calls, warrants, subscriptions, Company Equity Awards or other rights, convertible securities, “phantom” stock rights, stock appreciation rights, agreements or commitments of any character to which the Company or any of its Subsidiaries is a party obligating the Company or any of its Subsidiaries to issue, transfer, purchase, exchange or sell any shares of capital stock or other equity interests in the Company or securities convertible into or exchangeable for such shares or equity interests, (B) contractual obligations of the Company or any of its Subsidiaries to (1) repurchase, redeem or otherwise acquire any shares of Company Common Stock or capital stock of the Company or any of its Subsidiaries, voting securities of, or any other equity interests in the Company or any of its Subsidiaries or any securities representing the right to purchase or otherwise receive any shares of Company Common Stock, or any capital stock, voting securities of, or any other equity interests in the Company or any of its Subsidiaries or (2) pursuant to which the Company or any of its Subsidiaries is or could be required to register shares of Company Common Stock or other securities under the Securities Act (C) voting trusts or similar agreements to which the Company is a party with respect to the voting or registration of any Company Common Stock, or any capital stock, voting securities of or any equity interests in the Company or any of its Subsidiaries, or (D) bonds, debentures, notes or other indebtedness having the right to vote (or convertible into, or exercisable or exchangeable for, securities having the right to vote) on any matters on which stockholders may vote in respect of the Company or any of its Subsidiaries are issued or outstanding.

(b)          All of the outstanding shares of capital stock or equivalent equity interests of each of the Company’s Subsidiaries are owned of record and beneficially, directly or indirectly, by the Company or the relevant wholly owned Subsidiary and free and clear of all Liens except for restrictions imposed by applicable securities Laws, and all of such shares or equity interests are duly authorized and validly issued and are fully paid, nonassessable and free of preemptive rights.

(c)          Except as set forth in Section 4.2(c) of the Company Disclosure Letter, neither the Company nor any of its Subsidiaries owns any interest or investment (whether equity or debt) in any corporation, partnership, joint venture, trust or other entity, other than a Subsidiary of the Company.

Section 4.3          Authority Relative to Agreement.

(a)          The Company has all necessary corporate power and authority to execute and deliver this Agreement and, subject to obtaining the Requisite Stockholder Approval, to consummate the transactions contemplated hereby, including the Merger. The execution, delivery and performance of this Agreement by the Company, and the consummation by the Company of the transactions contemplated by this Agreement, including the Merger, have been duly and validly authorized by all necessary corporate action by the Company, and except for the Requisite Stockholder Approval, no other corporate Action on the part of the Company is necessary to authorize the execution, delivery and performance of this Agreement by the Company and the consummation by the Company of the transactions contemplated by this Agreement, including the Merger. This Agreement has been duly executed and delivered by the Company and, assuming due authorization, execution and delivery of this Agreement by the other parties, constitutes a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except that such enforcement may be subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws, now or hereafter in effect, affecting creditors’ rights and remedies generally.

(b)       The board of directors of the Company has unanimously (i) approved and declared advisable this Agreement, the Merger and the other transactions contemplated hereby, (ii) determined that the Merger and the other transactions contemplated hereby are advisable and in the best interests of the Company and its stockholders and (iii) resolved to make the Company Recommendation (provided that any change, modification or rescission of such recommendation by the board of directors of the Company in accordance with Section 6.5 shall not be a breach of the representation in clause (iii)).

Section 4.4          No Conflict; Required Filings and Consents.

(a)          Neither the execution and delivery of this Agreement by the Company nor the consummation by the Company of the transactions contemplated hereby, including the Merger, subject to the Requisite Stockholder Approval, will (i) violate any provision of the Company Charter or Company Bylaws, (ii) assuming that the Consents, registrations, declarations, filings and notices referred to in Section 4.4(b) have been obtained or made, any applicable waiting periods referred to therein have expired and any condition precedent to any such Consent has been satisfied, conflict with or violate any Law applicable to the Company or any of its Subsidiaries or by which any property or asset of the Company or any of its Subsidiaries is bound or affected, (iii) result in any breach of, or constitute a default (with or without notice or lapse of time, or both) under, or give rise to any right of termination, acceleration or cancellation of, any Company Material Contract, Real Property Lease or Company Permit or (iv) result in the creation or imposition of any Lien, other than Permitted Liens, on any asset of the Company or any of its Subsidiaries other than, in the case of clauses (ii), (iii) and (iv) any such conflict, violation, breach, default, termination, acceleration or cancellation that would not have a Company Material Adverse Effect.

(b)          No consent, approval, license, permit, Order or authorization (a “Consent”) of, or registration, declaration or filing with, or notice to, any Governmental Authority is required to be obtained or made by or with respect to the Company or any of its Subsidiaries in connection with the execution, delivery and performance of this Agreement or the consummation of the transactions contemplated hereby, including the Merger, other than (i) the filing with the SEC of the Proxy Statement in preliminary and definitive forms and the applicable requirements of and filings with the SEC under the Exchange Act, (ii) the filing of the Certificate of Merger with the Secretary in accordance with the DGCL and appropriate documents with the relevant authorities of the other jurisdictions in which the Company or any of its Subsidiaries is qualified to do business, (iii) applicable requirements under corporation or Blue Sky Laws of various states, (iv) filings with the New York Stock Exchange (the “NYSE”), (v) such other items required solely by reason of the participation of Parent or Acquisition Sub in the transactions contemplated hereby, (vi) consent from the FCC for the transfer of control of the FCC Licenses under the Communications Act of 1934 and (vii) such other Consents, registrations, declarations, filings or notices the failure of which to be obtained or made would not have a Company Material Adverse Effect.

Section 4.5          Permits; Compliance with Laws.

(a)       The Company and its Subsidiaries are in possession of all material licenses, permits, approvals, registrations, franchises, grants, easements, variances, exceptions, Consents and certificates necessary for the Company and its Subsidiaries to own, lease or operate their properties and assets and to carry on their business as it is now being conducted (the “Company Permits”), and all Company Permits are in full force and effect and no suspension or cancellation of any of the Company Permits is pending or, to the Knowledge of the Company, threatened, except where the failure to be in possession of or be in full force and effect, or the suspension or cancellation of, any of the Company Permits would not have a Company Material Adverse Effect.

(b)       Since January 1, 2020, none of the Company or any of its Subsidiaries is in default or violation of any Law applicable to the Company or any of its Subsidiaries, except for any such defaults or violations that would not have a Company Material Adverse Effect. Except as has not had a Company Material Adverse Effect, since January 1, 2020, neither the Company nor any of its Subsidiaries has received written notice from any Governmental Authority alleging any conflict with or breach of any Law or any such Company Permit.

(c)        Except as would not have a Company Material Adverse Effect, to the Knowledge of the Company, the businesses of each of the Company and each of its Subsidiaries are being, and since January 1, 2020, have been, conducted in material compliance with the U.S. Foreign Corrupt Practices Act 1977 and other similar applicable anti-bribery laws, rules or regulations in other jurisdictions (together, the “Anti-Bribery Laws”). Except as would not have a Company Material Adverse Effect, there are no internal investigations or, to the Knowledge of the Company, prior or pending governmental or other regulatory investigations or proceedings, in each case, regarding any action or any allegation of any action described above in this Section 4.5(c). Without limiting the generality of the foregoing, the Company, its Subsidiaries and each of their respective officers, directors, employees, agents, distributors and other persons acting for or on behalf of the Company or any of its Subsidiaries have not, to the Knowledge of the Company, directly or indirectly taken any act in furtherance of any payment, gift, bribe, rebate, loan, payoff, kickback or any other transfer of value (or offer, promise or authorization thereof) to any Person, including any Governmental Authority, for the purpose of: (i) improperly influencing or inducing such Person to do or omit to do any act or to make any decision in an official capacity or in violation of a lawful duty; (ii) inducing such person to influence improperly his, her or its employer, public or private, or any Governmental Authority, to affect an act or decision of such employer or Governmental Authority, including to assist any person in obtaining or retaining business; or (iii) securing any improper advantage (including, for example, to obtain a Tax rate lower than allowed by applicable Law).

Section 4.6          Company SEC Documents; Financial Statements.

(a)        Since January 1, 2020, the Company has timely filed or furnished with the SEC all material forms, documents and reports required to be filed or furnished prior to the date hereof by it with the SEC (the “Company SEC Documents”). As of their respective dates, or, if amended or suspended, as of the date of the last such amendment or suspension, the Company SEC Documents complied in all material respects with the requirements of the Securities Act and the Exchange Act, as the case may be, and the applicable rules and regulations promulgated thereunder, and none of the Company SEC Documents at the time it was filed (or, if amended, as of the date of the last amendment) contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. Except as set forth on Section 4.6 of the Company Disclosure Letter, the Company is in compliance in all material respects with the applicable listing and corporate governance rules and regulations of the NYSE. None of the Company’s Subsidiaries is, or at any time since January 1, 2020, has been, required to file any forms, reports or other documents with the SEC. As of the date hereof, (i) there are no outstanding or unresolved comments in any comment letters of the staff of the SEC received by the Company relating to the Company SEC Documents and (ii) none of the Company SEC Documents is, to the Knowledge of the Company, the subject of ongoing SEC review.

(b)        The consolidated financial statements (including all related notes) of the Company included in the Company SEC Documents fairly present in all material respects the consolidated financial position of the Company and its consolidated Subsidiaries as of the respective dates thereof, and its consolidated statements of operations and consolidated statements of cash flows for the respective periods then ended (subject, in the case of unaudited interim statements, to normal year-end audit adjustments, the absence of notes and any other adjustments described therein, including in any notes thereto) were prepared from, and are in accordance with, the books and records of the Company and its Subsidiaries, complied as to form, as of their respective dates of filing with the SEC, in all material respects with applicable accounting requirements and with published rules and regulations of the SEC with respect thereto, were prepared in conformity with GAAP (except, in the case of unaudited statements, as permitted by Form 10-Q, Form 8-K or any successor form or other rules under the Exchange Act) applied on a consistent basis during the periods involved (except as may be indicated therein or in the notes thereto).

Section 4.7          Information Supplied. None of the information supplied or to be supplied by or on behalf of the Company or any of its Subsidiaries expressly for inclusion or incorporation by reference in the proxy statement relating to the approval by the stockholders of the Company of this Agreement and, if applicable, any approvals related thereto (together with any amendments or supplements thereto, the “Proxy Statement”) will, at the date it is first mailed to the stockholders of the Company and at the time of the Stockholders’ Meeting, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they are made, not misleading, except that no representation or warranty is made by the Company with regard to statements made therein based on information supplied by or on behalf of Parent or Acquisition Sub (or any of their Affiliates) for inclusion therein. The Proxy Statement will comply as to form in all material respects with the requirements of the Exchange Act.

Section 4.8          Disclosure Controls and Procedures.

(a)          The Company has established and maintains “disclosure controls and procedures” and “internal control over financial reporting” (as such terms are defined in paragraphs (e) and (f), respectively, of Rule 13a-15 promulgated under the Exchange Act) as required by Rule 13a-15 promulgated under the Exchange Act. To the Knowledge of the Company, the Company has disclosed, based on its most recent evaluation of the Company’s internal control over financial reporting prior to the date hereof, to the Company’s auditors and the audit committee of the board of directors of the Company (and made summaries of such disclosures available to Parent): (i) any significant deficiencies and material weaknesses in the design or operation of its internal controls over financial reporting (as defined in Rule 13a-15(f) under the Exchange Act) that are reasonably likely to adversely affect in any material respect the Company’s ability to record, process, summarize and report financial information and (ii) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s internal control over financial reporting. Each of the Company and its Subsidiaries has substantially addressed any such deficiency, material weakness or fraud.

(b)          Since January 1, 2020, (i) none of the Company or any of its Subsidiaries nor, to the Knowledge of the Company, any of their respective directors, officers, employees, auditors, accountants or Representatives has received or otherwise had or obtained knowledge of any material complaint, allegation, assertion or claim, whether written or oral, regarding the accounting or auditing practices, procedures, methodologies or methods of the Company, its Subsidiaries or their respective internal accounting controls, including any material complaint, allegation, assertion or claim that the Company or any of its Subsidiaries has engaged in questionable accounting or auditing practices and (ii) no attorney representing the Company or any of its Subsidiaries, whether or not employed by the Company or any of its Subsidiaries, has reported evidence of a violation of securities Laws, breach of fiduciary duty or similar violation by the Company, its Subsidiaries or any of their respective officers, directors, employees or agents to the board of directors of the Company or any committee thereof or to the chief executive officer or general counsel of the Company.

Section 4.9        Absence of Certain Changes or Events. From December 31, 2022, to the date of this Agreement, (i) except with respect to the process conducted by the Company to consider strategic alternatives, including the sale of the Company and the negotiation, execution and delivery of this Agreement, the businesses of the Company and its Subsidiaries have been conducted in all material respects in the ordinary course of business consistent with past practice and (ii) there has not been any adverse change, event, effect or circumstance that has had a Company Material Adverse Effect.

Section 4.11         Litigation. Except as set forth in Section 4.11 of the Company Disclosure Letter, as of the date hereof, there is no Action pending or, to the Knowledge of the Company, threatened against the Company or any of its Subsidiaries, that would have a Company Material Adverse Effect, nor is there any Order of any Governmental Authority outstanding against, or, to the Knowledge of the Company, investigation by any Governmental Authority involving, the Company or any of its Subsidiaries. As of the date hereof, there is no Action pending or, to the Knowledge of the Company, threatened seeking to prevent, enjoin, modify, materially delay or challenge the Merger or any of the other transactions contemplated by this Agreement.

Section 4.12          Employee Benefit Plans.

(a)          Section 4.12(a) of the Company Disclosure Letter sets forth a true and complete list, as of the date hereof, of each material Company Benefit Plan. The Company has made available to Parent a true and complete copy of the current plan document for each material Company Benefit Plan (or a written description of any unwritten Company Benefit Plan) and all amendments thereto and a true and complete copy of the following items (in each case, only if applicable) with respect to such material Company Benefit Plans: (i) the current summary plan description and any summary of material modifications thereto, (ii) the most recently filed annual report on IRS Form 5500, (iii) the most recently received IRS determination letter or IRS opinion letter, (iv) the current trust agreements, insurance contracts, and other documents relating to the funding or payment of benefits under each Company Benefit Plan; and (v) any material correspondence outside the ordinary course of business relating to any such Company Benefit Plan between the Company, its Subsidiaries or their Representatives and any government agency or regulatory body within three years of the date hereof.

(b)        Except as would not have a Company Material Adverse Effect, (i) each of the Company Benefit Plans has been maintained, operated and administered in accordance with its terms and in compliance with applicable Laws, (ii) no proceeding (other than routine claims for benefits) is pending against or, to the Knowledge of the Company, is threatened against any Company Benefit Plan before any court or arbitrator or any Governmental Authority, (iii) payments required to have been paid by the Company or any of its Subsidiaries pursuant to the terms of a Company Benefit Plan or by applicable Law (including, all contributions and insurance premiums) have been paid by the Company or its Subsidiaries in accordance with the provisions of such Company Benefit Plan or applicable Law, (iv) no non-exempt “prohibited transaction,” within the meaning of Section 4975 of the Code and Section 406 of ERISA, has occurred or is reasonably expected to occur with respect to a Company Benefit Plan and (v) there have been no breaches of any of the duties imposed on “fiduciaries” (within the meaning of Section 3(21) of ERISA) by ERISA with respect to the Company Benefit Plans that could reasonably be likely to result in any liability or excise Tax under ERISA or the Code being imposed on the Company.

(c)        (i) Each Company Benefit Plan intended to be qualified under Section 401(a) of the Code is so qualified and each such Company Benefit Plan has either received a favorable determination letter from the IRS with respect to each such Company Benefit Plan as to its qualified status under the Code, or with respect to a prototype Company Benefit Plan, the prototype sponsor has received a favorable IRS opinion letter, or the Company Benefit Plan or prototype sponsor has remaining a period of time under applicable Code regulations or pronouncements of the IRS in which to apply for such a letter and make any amendments necessary to obtain a favorable determination or opinion as to the qualified status of each such Company Benefit Plan, and (ii) no event has occurred since the most recent determination or opinion letter that would reasonably be expected to result in the IRS revoking the qualification of such Company Benefit Plan.

(d)          Section 4.12(d)(i) of the Company Disclosure Letter includes a complete and accurate list of all Company Equity Awards under the Company Equity Plan that are outstanding as of the date hereof and includes the following information with respect to each outstanding Company Equity Award: (i) the grantee, (ii) the number of shares subject to such Company Equity Award, (iii) the type of Company Equity Award, and (iv) the vesting schedule applicable to such Company Equity Award. Except as set forth on Section 4.12(d)(ii) of the Company Disclosure Letter, each outstanding Company Equity Award was granted pursuant to the forms of award agreement under the Company Equity Plan provided to Parent and disclosed as Company Benefit Plans on Section 4.12(a) of the Company Disclosure Letter.

(e)         Except as set forth on Section 4.12(e) of the Company Disclosure Letter, neither the Company nor any member of its Controlled Group currently sponsors, maintains, administers or contributes to, or has any liability in respect of (or has in the past six years sponsored, maintained, administered, contributed to, or had any liability in respect of), (i) a plan subject to Title IV of ERISA, Section 302 of ERISA or Section 412 of the Code, (ii) a “multiple employer welfare arrangement” as defined in Section 3(40) of ERISA, or (iii) a “multiple employer plan” within the meaning of Section 210(a) of ERISA or Section 413(c) of the Code. Except as set forth in Section 4.11(e)(iv) of the Company Disclosure Letter, neither the Company nor any of its Subsidiaries is bound by any contract or has any liability or obligation described in Section 4204 of ERISA.

(f)          Section 4.12(f) of the Company Disclosure Letter sets forth each Multiemployer Plan. With respect to each Multiemployer Plan, (i) neither the Company nor any member of its Controlled Group has incurred any withdrawal liability within the meaning of Title IV of ERISA on account of a “complete withdrawal” or a “partial withdrawal” (within the meaning of Sections 4203 and 4205 of ERISA, respectively) from any Multiemployer Plan for which there is any outstanding liability to the Company or any member of its Controlled Group, and (ii) to the Knowledge of the Company, no Multiemployer Plan has been terminated, has undergone or is expected to undergo a mass withdrawal, or has been, or is expected to become, insolvent (within the meaning of Section 4245 of ERISA) or in “endangered,” “critical,” or “critical and declining” status (within the meaning of Section 432 of the Code or Section 305 of ERISA) so as to result directly or indirectly in any increase in contributions or other liability to the Company or any of its Subsidiaries in relation to which there is any outstanding liability to the Company or any member of its Controlled Group. All contributions (including installments) required to be made by the Company or any of its Subsidiaries to any Multiemployer Plan have been timely made, except as could not reasonably be expected to result in any material liabilities. With respect to any Multiemployer Plan that has requested and received approval from the PBGC with respect to any special withdrawal liability rules, to the Knowledge of the Company no conditions or pending acts or omissions exist which would be expected to result in the loss, revocation, denial or failure to meet the requirements of such special withdrawal liability rules.

(g)          Neither the execution or delivery of this Agreement nor the consummation of the Merger will (i) except as expressly provided in this Agreement, entitle any employee of the Company or any of its Subsidiaries to any material payment of compensation, (ii) increase the amount or value of any benefit or compensation or other obligation payable or required to be provided to any such employee, (iii) except as expressly provided in this Agreement, accelerate the time of payment or vesting of amounts due any such employee or accelerate the time of any funding (whether to a trust or otherwise) of compensation or benefits in respect of any of the Company Benefit Plans or (iv) result in any payments or benefits under any agreement with the Company or any of its Subsidiaries that, individually or in combination with any other payment or benefit, could constitute the payment of any “excess parachute payment” to a “disqualified individual” within the meaning of Section 280G of the Code (and the regulations thereunder).

(h)          No Company Benefit Plan is funded through a “welfare benefit fund” as defined in Section 419(e) of the Code, and no benefits under any Company Benefit Plan are provided through a voluntary employees’ beneficiary association (within the meaning of subsection 501(c)(9) of the Code) or a supplemental unemployment benefit plan (within the meaning of Section 501(c)(17) of the Code).

(i)          None of the Company or its Subsidiaries has any obligations for post-employment health or welfare benefits, including, death, health or life insurance benefits under any Company Benefit Plan (other than (i) for continuation coverage required to be provided pursuant to Section 4980B of the Code or other applicable Law, or (ii) death or retirement benefits under any Company Benefit Plan that is intended to be qualified under Section 401(a) of the Code).

Section 4.13          Labor & Employment Matters.

(a)          The Company has made available to Parent a list of all officers, directors, managers and employees of the Company and its Subsidiaries as of the date of this Agreement, which list sets forth in respect of each such individual, as applicable, each employee’s date of hire, status as hourly or salaried employee, work location, and the rate of all regular compensation payable to each such Person in any and all capacities and any regular compensation that will be payable to each such Person in any and all capacities as of the Closing Date other than the then current accrual of regular payroll compensation.

(b)          Except as set forth in Section 4.13(b) of the Company Disclosure Letter, neither the Company nor any of its Subsidiaries is now or has, within the past three years been,  a party to or bound by any collective bargaining agreement. The Company has made available to Parent accurate and complete copies of each collective bargaining agreement. The execution and delivery of this Agreement, shareholder or other approval of this Agreement and the consummation of the transactions contemplated by this Agreement, either alone or in combination with another event, will not entitle any third party (including any labor organization or Governmental Authority) to any material payments under any of the collective bargaining agreements, and, the Company and its Subsidiaries are in compliance in all material respects with any notification or bargaining obligations arising under any collective bargaining agreements. There are no labor-related strikes, concerted walkouts or concerted work stoppages pending or, to the Knowledge of the Company, threatened in writing. To the Knowledge of the Company, there is no pending organizing campaign, nor, in the last five years, has any such effort commenced, and no labor union has made a pending written demand for recognition or certification, in each case, with respect to any employees of the Company or any of its Subsidiaries for the past three years.

(c)          There are no, and there have not been since January 1, 2020, any actual or, to the Company’s Knowledge, threatened (A) strikes, lockouts, slowdowns, other work stoppages or job actions, picketing, unfair labor practices or other labor disputes, (B)  unfair labor practice charge against the Company or any of its Subsidiaries before the National Labor Relations Board or any comparable labor relations authority, and (C) arbitrations or grievances, charges, complaints, audits or investigations by or before any Governmental Authority with respect to any current or former employees of, or other service providers to, the Company or any of its Subsidiaries.

(d)          Since January 1, 2020, each of the Company and its Subsidiaries has been in compliance in all material respects with its collective bargaining agreements and all applicable Laws respecting labor and employment matters, including fair employment practices (including equal employment opportunity laws), employment discrimination, sexual harassment, disability rights, terms and conditions of employment, labor relations, workers’ compensation and unemployment insurance, leaves of absence, occupational safety and health, affirmative action, employee privacy, classification as (A) exempt from overtime or (B) a contractor, plant closings, overtime pay, pay equity, mass layoffs, family and medical leave, unions, immigration and wages and hours.

(e)          There are no proceedings pending or, to the Company’s Knowledge, threatened against the Company or any of its Subsidiaries in any forum by or on behalf of any present or former employee, or present or former contractor, of the Company or any of its Subsidiaries, any applicant for employment or classes of the foregoing alleging breach of any express or implied employment contract, violation of any Law governing employment or the termination thereof, or any other alleged discriminatory, wrongful or tortious conduct on the part of the Company or any of its Subsidiaries in connection with the employment or other service-provider relationship, and there have not been any such proceedings since January 1, 2020.

(f)        The Company and its Subsidiaries have not implemented any plant closings or layoffs of employees that could implicate the Worker Adjustment and Retraining Notification Act or similar state Laws within the past six months.

(g)         To the Knowledge of the Company, as of the date of this Agreement, no officer, director or other management-level employee of the Company or any of its Subsidiaries is the subject of a pending allegation of workplace sexual harassment or assault, nor is any officer, director or other management-level employee of the Company or any of its Subsidiaries currently accused of engaging in workplace sexual harassment or assault.

Section 4.14         Intellectual Property Rights.

(a)          Except as would not have a Company Material Adverse Effect, the Company and its Subsidiaries own, or have the right to use in the manner currently used, all Intellectual Property Rights that are material to the business of the Company and its Subsidiaries as currently conducted. Except as would not have a Company Material Adverse Effect, neither the Company nor any of its Subsidiaries has received, since January 1, 2020, any written charge, complaint, claim, demand or notice challenging the validity of any Intellectual Property Rights owned or purported to be owned by the Company or any of its Subsidiaries (the “Company Intellectual Property Rights”). Except as would not have a Company Material Adverse Effect, the Company or its Subsidiaries exclusively own, free and clear of all Liens (other than Permitted Liens), all Company Intellectual Property Rights. Except as would not have a Company Material Adverse Effect, the Company Intellectual Property Rights are not subject to any exclusive license or exclusive right granted to any Person.

(b)       To the Knowledge of the Company, the conduct of the business of the Company and its Subsidiaries has not since January 1, 2020, infringed upon, misappropriated or otherwise violated any Intellectual Property Rights of any other Person, except for any such infringement, misappropriation or other violation that would not have a Company Material Adverse Effect. None of the Company or any of its Subsidiaries has received since January 1, 2020, any written charge, complaint, claim, demand or notice alleging any such infringement, misappropriation or other violation by the Company or any of its Subsidiaries that has not been settled or otherwise fully resolved, except for any such infringement, misappropriation or other violation that would not have a Company Material Adverse Effect. To the Knowledge of the Company, since January 1, 2020, no other Person has infringed, misappropriated or otherwise violated any Company Intellectual Property Rights, except for any such infringement, misappropriation or other violation as would not have a Company Material Adverse Effect. This Section 4.14(b) constitutes the only representation and warranty of the Company with respect to any actual or alleged infringement, misappropriation or other violation of any Intellectual Property Rights of any other Person.

(c)        Except as would not have a Company Material Adverse Effect, the Company Intellectual Property Rights collectively constitute all of the Intellectual Property Rights used, held for use or otherwise necessary for the Surviving Corporation to continue the operations of the Company and its Subsidiaries as presently conducted and as proposed to be conducted.

(d)          Except as would not have a Company Material Adverse Effect, the Company and its Subsidiaries takes and has taken at all times reasonable steps to protect its rights in its confidential information and trade secrets, and any trade secrets or confidential information of third parties provided to them under an obligation of confidentiality. Except as would not have a Company Material Adverse Effect, and to the Knowledge of the Company, no current or former employee, consultant or independent contractor of the Company and its Subsidiaries have either misappropriated or disclosed without authorization any such confidential information or trade secrets.

(e)         Except as would not have a Company Material Adverse Effect, (i) the Company and its Subsidiaries have implemented, maintained and monitored reasonable measures with respect to technical, administrative and physical safeguards to preserve and protect the confidentiality, availability, security and integrity of the Company IT Assets, (ii) the Company and its Subsidiaries have implemented commercially reasonable data backup, data storage, system redundancy and disaster avoidance and recovery procedures and (iii) to the Knowledge of the Company, the Company IT Assets are free of Malicious Code.

(f)        Except as would not have a Company Material Adverse Effect, since January 1, 2020, (i) there have been no claims pending or, to the Knowledge of the Company, threatened in writing against the Company or its Subsidiaries alleging a violation of any Privacy Obligations (including related to any fines or other sanctions), (ii) neither the Company nor any of its Subsidiaries has notified or been required to notify any Person of any information or data security breaches or other incidents, (iii) to the Knowledge of the Company, there has been no unauthorized access, unauthorized acquisition or disclosure, or any loss or theft of Personal Data that was in the possession or control of the Company, its Subsidiaries or third Persons acting on their behalf and (iv) the Company and its Subsidiaries have complied, and are in compliance, with all Privacy Obligations.

Section 4.15         Taxes.

(a)         Each of the Company and all of its Subsidiaries has duly and timely filed, or caused to be duly and timely filed, all income and other material Tax Returns that it was required to file (taking into account any validly obtained extensions) and all such Tax Returns were true, correct and complete in all material respects and prepared in material compliance with all applicable Tax Laws. All material Taxes required to be paid by the Company or any of its Subsidiaries have been duly and timely paid. Since September 30, 2022, neither the Company nor any of its Subsidiaries has incurred any liability for a material amount of Taxes outside the ordinary course of business.

(b)         There are no material Liens for Taxes (other than Permitted Liens described in clause (a) of the definition thereof) upon any assets of the Company or any of its Subsidiaries.

(c)          The Company and each of its Subsidiaries has deducted, withheld or collected and remitted to a Governmental Authority all material amounts of Taxes required to have been deducted, withheld or collected and remitted in connection with amounts paid or owing to any employee, independent contractor, stockholder or other equity holder, creditor or any other person and has each complied in all material respects with all Tax information reporting provisions of all applicable Laws.

(d)          There is no ongoing or pending audit, examination, dispute, claim or other Action concerning any material amount of Taxes or any material Tax Return of the Company or any of its Subsidiaries, and no such action has been threatened, claimed or raised by any Governmental Authority responsible for the imposition of Taxes in writing which remains unpaid or unresolved. No claim has been made in writing by any Governmental Authority in a jurisdiction where the Company or any of its Subsidiaries does not file Tax Returns to the effect that the Company or any of its Subsidiaries is or may be subject to taxation by that jurisdiction or any Governmental Authority thereof.

(e)          Neither the Company nor any of its Subsidiaries has waived any statutes of limitations in respect of any Taxes, which waiver remains in effect, or agreed to any extension of time with respect to any material Tax assessment or deficiency, which assessment or deficiency has not been paid.

(f)          None of the Company nor any of its Subsidiaries has been included in any “consolidated,” “unitary,” “combined” or other similar Tax Return (other than Tax Returns for which the Company is the common parent) provided for under the Laws of the United States, any non-U.S. jurisdiction or any state or locality with respect to Taxes for any taxable year, and neither the Company nor any of its Subsidiaries has any obligation or liability for any Tax of any person (other than the Company or any of its Subsidiaries) under Treasury Regulation Section 1.1502-6 (or any similar provision of state, local or non U.S. Tax Law), as transferee or successor or otherwise.

(g)        None of the Company nor any of its Subsidiaries is a party to or bound by any (i) Tax allocation, Tax sharing, Tax indemnity or other similar Contract, agreement or arrangement (other than any such agreements or arrangements pursuant to customary commercial contracts the primary purposes of which do not relate to Taxes) or (ii) Tax abatement, Tax incentive, Tax reduction, payment in lieu of Taxes or other similar Contract, agreement or arrangement with a Governmental Authority relating to Taxes. Neither the Company nor any of its Subsidiaries has received or applied for any Tax ruling or entered into a “closing agreement” pursuant to Code Section 7121 (or any similar or analogous provision of state, local or non-U.S. Tax Law) that would be binding upon the Company or any of its Subsidiaries after the Closing Date.

(h)          Neither the Company nor any of its Subsidiaries has engaged in any “listed transaction” as defined in Treasury Regulations Section 1.6011-4(b)(2) in any tax year for which the statute of limitations has not expired.

(i)          Section 4.15(i) of the Company Disclosure Letter sets forth the U.S. federal income Tax classification of each Company Subsidiary. Except as otherwise set forth on Section 4.15(i) of the Company Disclosure Letter, no IRS Form 8832 or other entity classification elections have been made by or on behalf of any Company Subsidiary.

(j)          Neither the Company nor any of its Subsidiaries (i) has made an election under Section 965(h) of the Code, or (ii) has had a permanent establishment (within the meaning of an applicable Tax treaty) or office or fixed place of business in a country other than the country in which it is organized.

(k)          Neither the Company nor any of its Subsidiaries will be required to include any item of income in, or exclude any item of deduction from, taxable income for any taxable period (or portion thereof) ending after the Closing Date as a result of any (i) change in, or use of an improper, method of accounting for a taxable period ending on or prior to the Closing Date, including under Code Section 481 (or any corresponding or similar provision of state, local or non-U.S. Tax Law), (ii) “closing agreement” as described in Code Section 7121 (or any corresponding or similar provision of state, local or non-U.S. Tax Law) executed on or prior to the Closing Date, (iii) intercompany transaction or excess loss account described in Treasury Regulations under Code Section 1502 (or any corresponding or similar provision of state, local or non-U.S. Tax Law), (iv) installment sale or open transaction disposition made on or prior to the Closing Date, (v) advanced payments or prepaid amounts received on or prior to the Closing Date, including as a result of any election or deferral method permitted under Code Section 451 or Revenue Procedure 2004-34, or (vi) election under Code Section 108(i).

Section 4.16         Material Contracts.

(a)          Section 4.16(a) of the Company Disclosure Letter sets forth a list, as of the date hereof, of each Company Material Contract. For purposes of this Agreement, “Company Material Contract” means any Contract (other than any Company SEC Documents, Company Benefit Plan, Real Property Lease or any Contract solely between or among the Company or any of its Subsidiaries) to which the Company or any of its Subsidiaries is a party or their respective properties or assets are bound, except for this Agreement, that:

(i)          would be required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act;

(ii)         is a joint venture, alliance or partnership agreement in which the Company owns, directly or indirectly, any voting or economic interest of 10% or more, other than with respect to any wholly owned Subsidiary of the Company;

(iii)         is a Contract relating to indebtedness for borrowed money (other than those related to trade payables arising in the ordinary course of business);

(iv)        is an acquisition agreement, asset purchase agreement, stock purchase agreement or other similar agreement (other than agreements to purchase or acquire inventory in the ordinary course of business) which has not yet been consummated or terminated or pursuant to which the Company or any of its Subsidiaries has any material continuing “earn-out” or other contingent payment obligations;

(v)         containing any standstill or similar provision remaining in effect pursuant to which the Company or any Subsidiary of the Company has agreed not to acquire securities or material assets of another Person;

(vi)       is an agreement entered into outside the ordinary course of business that involves future expenditures or receipts by the Company or any of its Subsidiaries of more than $250,000 in any one-year period that cannot be terminated on less than 90 days’ notice without material payment or penalty;

(vii)       except as would not be material to the Company and its Subsidiaries, taken as a whole, is an agreement that prohibits the Company or any of its Subsidiaries from engaging or competing in any material line of business, in any geographical location or with any Person;

(viii)       except as would not be material to the Company and its Subsidiaries, taken as a whole, is an agreement that (A) grants “most favored nation” status or is a “requirements” Contract, (B) provides for the purchase of goods or services exclusively from any third party, (C) limits in any material respect either the type of business in which the Company or its Subsidiaries may engage or the manner or locations in which any of them may so engage in any business or (D) would require the disposition of any material assets or line of business of the Company or its Subsidiaries;

(ix)        that grants (A) rights of first refusal, rights of first negotiation or similar pre-emptive rights, or (B) puts, calls or similar rights, to any Person (other than the Company or a wholly owned Subsidiary of the Company) with respect to any asset that is material to the Company or any of its Subsidiaries;

(x)         is an agreement pursuant to which the Company or any of its Subsidiaries is granted or grants a right to use material Intellectual Property Rights (other than Contracts (A) in which grants of Intellectual Property Rights are incidental to such Contracts, (B) granting non-exclusive rights according to the Company’s standard terms and/or (C) granting rights to use commercially available hardware or software including pursuant to shrink wrap, click through or other standard licensing terms);

(xi)        is an agreement with any (A) executive officer, director or beneficial owner of the Company or (B) affiliates or “associates” (or members of any of their “immediate family”) (as such terms are respectively defined in Rule 12b-2 and Rule 16a-1 of the Exchange Act) of any such executive officer, director or beneficial owner;

(xii)        that was entered into to settle any material litigation and which imposes material ongoing obligations on the Company or any of its Subsidiaries;

(xiii)     to which the Company or any of its Subsidiaries is a party, or by which any of them are bound, the ultimate contracting party of which is a Governmental Authority (including any subcontract with a prime contractor or other subcontractor who is a party to any such contract);

(xiv)     is an agreement for the purchase, exchange or sale of coal, coal ash, fly ash or any byproduct thereof entered into with a Company Material Customer; or

(xv)        is an agreement for the transportation or storage of coal, coal ash, fly ash or any byproduct thereof entered into with a Company Material Customer.

(b)          Neither the Company nor any Subsidiary of the Company is in breach of or default under the terms of any Company Material Contract where such breach or default would have a Company Material Adverse Effect. As of the date hereof, to the Knowledge of the Company, no other party to any Company Material Contract is in breach of or default under the terms of any Company Material Contract where such breach or default would have a Company Material Adverse Effect. Each Company Material Contract is a valid and binding obligation of the Company or its Subsidiary and, to the Knowledge of the Company, the other parties thereto, except such as would not have a Company Material Adverse Effect; provided that such enforcement may be subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws, now or hereafter in effect, relating to creditors’ rights and remedies generally. The Company has made available to Parent true, complete and correct copies of all written Company Material Contracts and complete descriptions of the material terms of all nonwritten Company Material Contracts.

Section 4.17        Real and Personal Property.

(a)        All of the real property owned by the Company or a Subsidiary of the Company is  set forth on Section 4.17(a) of the Company Disclosure Letter (the “Owned Real Property”). All real property leased, subleased, or licensed from a third party or otherwise occupied (whether as a tenant, subtenant or pursuant to other occupancy arrangements) by the Company or any of its Subsidiaries (collectively, including the improvements thereon, the “Leased Real Property”) is disclosed in Section 4.17(a) of the Company Disclosure Letter.

(b)        Except as would not have a Company Material Adverse Effect, the Company or one of its Subsidiaries has indefeasible fee simple title to each parcel of Owned Real Property and a valid leasehold, subleasehold or license interest in each parcel of Leased Real Property, in each case, free and clear of all Liens, except Permitted Liens.

(c)         As of the date hereof, to the Knowledge of the Company, neither the Company nor any of its Subsidiaries has received any written communication from, or given any written communication to, any other party to a lease for the Leased Real Property to which the Company or a Subsidiary is a party (each, a “Real Property Lease”) alleging that the Company or any of its Subsidiaries or such other party, as the case may be, is in default under a Real Property Lease. True, correct and complete copies of each Real Property Lease have been provided in the VDR, and each Real Property Lease is in full force and effect.

(d)         To the Knowledge of the Company, none of the Owned Real Property or Leased Real Property is in violation of any Laws of any Governmental Authority, and neither the Company nor any Subsidiary has received written notice of any such violation.

(e)         There are no pending condemnation proceedings affecting the Owned Real Property or, to the Knowledge of the Company, any of the Leased Real Property, and to the Knowledge of the Company, neither the Company nor any Subsidiary of the Company has received written notice of any threatened or contemplated condemnation proceeding affecting the Owned Real Property or Leased Real Property.

(f)         All material tangible assets (including Owned Real Property and Leased Real Property) of the Company and its Subsidiaries are, in the aggregate (and with due consideration for reasonable wear and tear and the age of each specific tangible asset), in sufficient operating condition and repair, except as would not, have a Company Material Adverse Effect.

(a)      The Company is, and since January 1, 2020, has been, in compliance with all applicable Environmental Laws, including any permits required under Environmental Laws for the operation of its business as currently conducted, except as would not, individually or in the aggregate, reasonably be expected to be a Company Material Adverse Effect.

(b)        Since January 1, 2020, the Company has not received any unresolved written notice of violation of Environmental Laws, except for any such violations that would not have a Company Material Adverse Effect.

(c)         Neither the Company nor any of  its Subsidiaries has received any written notice from any Governmental Authority or other Person that the Company or any Subsidiary thereof is subject to any pending claim based upon any provision of any Environmental Law, which claim, if adversely resolved, would, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect.

(d)        The Company has not Released any Hazardous Materials at any Owned Real Property or any Leased Real Property, except as would not, individually or in the aggregate, reasonably be expected to be a Company Material Adverse Effect.

Section 4.19        Vote Required. The adoption of this Agreement by the affirmative vote of the holders of a majority of the voting power of the outstanding shares of Company Common Stock and Company Preferred Stock, voting as a single class, on the record date for the Stockholders’ Meeting present in person or represented by proxy at the Stockholders’ Meeting and entitled to vote thereon (the “Requisite Stockholder Approval”) is the only approval of holders of securities of the Company that is required in connection with the consummation of any of the transactions contemplated hereby, including the Merger.

Section 4.20        Brokers. Except for those Persons set forth in Section 4.20 of the Company Disclosure Letter and Houlihan Lokey, Inc., no broker, finder, investment banker, consultant or intermediary is entitled to any investment banking, brokerage, finder’s or similar fee or commission in connection with the Merger or any of the other transactions contemplated by this Agreement based upon arrangements made by or on behalf of the Company or any of its Subsidiaries.

Section 4.21         Opinion of Financial Advisor. The board of directors of the Company has received the opinion, dated as of the date hereof, of Houlihan Lokey, Inc. that, as of the date hereof and subject to the limitations, qualifications and assumptions set forth in such opinion, the Merger Consideration is fair, from a financial point of view, to the holders of shares of Company Stock. A copy of such opinion shall be delivered to Parent as soon as practicable for information purposes only.

Section 4.22        Insurance. Section 4.22 of the Company Disclosure Letter contains a list of the material insurance policies maintained by the Company in effect as of the date of this Agreement. The Company has made available to Parent true, complete and correct copies of the insurance policies. To the Knowledge of the Company, except as would not have a Company Material Adverse Effect, as of the date of this Agreement, (a) each such insurance policy is in full force and effect and all premiums due thereon have been paid in full and (b) the Company has not received a written notice of cancellation from the insurer(s) of any such insurance policy. There is no material claim pending under any of such policies or bonds as to which coverage has been denied or disputed by the underwriters of such policies or bonds. The Company has not received notice of and, to the Knowledge of the Company, there has been no threatened termination of, or material premium increase with respect to, any of such policies.

Section 4.24        Takeover Statutes. The board of directors of the Company has taken such actions as are necessary to render the provisions of any “fair price,” “moratorium,” “control share acquisition” or any other takeover or anti-takeover statute or similar federal or state Law inapplicable to this Agreement, the Merger or any other transactions contemplated by this Agreement. The Company has no rights plan, “poison-pill” or other comparable agreement or arrangement designed to have the effect of delaying, deterring or discouraging any Person from acquiring control of the Company, and the board of directors of the Company has not adopted or approved or authorized the adoption or approval of such a plan.

Section 4.25       No Other Representations or Warranties. Except for the representations and warranties expressly set forth in this Article IV, neither the Company nor any other Person on behalf of the Company makes, or has made (and the Company, on behalf of itself, each of the Company’s Subsidiaries and their respective Affiliates and Representatives, hereby disclaims) any express or implied representation or warranty with respect to the Company or any of the Company’s Subsidiaries or with respect to the accuracy or completeness of any information provided, or made available, to Parent, Acquisition Sub or any of their Affiliates or Representatives, including with respect to their business, operations, assets, liabilities, conditions (financial or otherwise), prospects or otherwise in connection with this Agreement, the Merger or the other transactions contemplated by this Agreement, and Parent and Acquisition Sub and their respective Representatives and Affiliates are not relying on, and waive any claim based on reliance on, any representation, warranty or other information of the Company, any of the Company’s Subsidiaries or any other Person except for those expressly set forth in this Article IV. None of the Company, any of the Company’s Subsidiaries or any other Person makes (and the Company, on behalf of itself, each of the Company’s Subsidiaries and their respective Affiliates and Representatives, hereby disclaims) any express or implied representation or warranty (including as to completeness or accuracy) to Parent or Acquisition Sub with respect to, and none of the Company, the Company’s Subsidiaries or any other Person shall be subject to, any liability to Parent, Acquisition Sub or any other Person resulting from, the Company, the Company’s Subsidiaries or their respective Representatives providing or making available to Parent, Acquisition Sub or any of their Affiliates or their respective Representatives, or resulting from the omission of, any estimate, projection, prediction, forecast, data, financial information, memorandum, presentation or any other materials or information, including any materials or information made available to Parent or its Representatives or Affiliates in connection with presentations by the Company’s management or information made available on any electronic data room for “Project Quantum” and maintained by the Company for purposes of the Merger and the other transactions contemplated by this Agreement, including the electronic data room hosted by Intralinks under the title Project Quantum (collectively, the “VDR”). Except for the representations and warranties contained in Article V, the Company acknowledges and agrees that none of Parent, Parent’s Subsidiaries (including Acquisition Sub) or any other Person on behalf of Parent makes, or has made, any express or implied representation or warranty with respect to Parent or Acquisition Sub, including with respect to their business, operations, assets, liabilities, conditions (financial or otherwise), prospects or otherwise in connection with this Agreement, the Merger or the other transactions contemplated by this Agreement, and the Company is not relying on any representation, warranty or other information of any Person except for those expressly set forth herein.

Except as disclosed in the Parent Disclosure Letter (subject to Section 1.2(b)), Parent and Acquisition Sub hereby jointly and severally represent and warrant to the Company as of the date hereof as follows:

Section 5.1          Organization and Qualification. Each of Parent and Acquisition Sub is a corporation duly organized, validly existing and (to the extent applicable) in good standing under the laws of the jurisdiction of its incorporation or organization and has the requisite entity power and authority to conduct its business as it is now being conducted. Each of Parent and Acquisition Sub is duly qualified or licensed to do business and (to the extent applicable) is in good standing in each jurisdiction in which the nature of the business conducted by it makes such qualification or licensing necessary, except where the failure to be so duly qualified or licensed and (to the extent applicable) in good standing would not have a Parent Material Adverse Effect. Parent has made available to the Company a copy of the Parent Organizational Documents, as currently in effect, and neither Parent nor Acquisition Sub is in violation of any provision of such documents applicable to such party.

Section 5.2          Authority Relative to Agreement.

(a)          Parent and Acquisition Sub have all necessary corporate power and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby, including the Merger. The execution, delivery and performance of this Agreement by Parent and Acquisition Sub, and the consummation by Parent and Acquisition Sub of the transactions contemplated by this Agreement, including the Merger, have been duly and validly authorized by all necessary entity action by Parent and Acquisition Sub, and no other entity Action on the part of Parent and Acquisition Sub is necessary to authorize the execution, delivery and performance of this Agreement by Parent and Acquisition Sub and the consummation by Parent and Acquisition Sub of the transactions contemplated by this Agreement, including the Merger. This Agreement has been duly executed and delivered by Parent and Acquisition Sub and, assuming due authorization, execution and delivery of this Agreement by the other party hereto, constitutes a legal, valid and binding obligation of Parent and Acquisition Sub, enforceable against Parent and Acquisition Sub in accordance with its terms, except that such enforcement may be subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws, now or hereafter in effect, affecting creditors’ rights and remedies generally.

(b)         The board of directors or similar governing body of Acquisition Sub has unanimously (i) approved and declared advisable this Agreement, the Merger and the other transactions contemplated hereby, (ii) determined that the Merger and the other transactions contemplated hereby, taken as a whole, are advisable and in the best interests of Acquisition Sub and its stockholder, and (iii) recommended the approval of this Agreement by Parent, as Acquisition Sub’s sole stockholder. Parent, acting in its capacity as the sole stockholder of Acquisition Sub, has adopted this Agreement and the consummation of the transactions contemplated hereby, including the Merger, and no further vote of, or consent by, Parent or Acquisition Sub is required.

Section 5.3          No Conflict; Required Filings and Consents.

(a)          Neither the execution and delivery of this Agreement by Parent and Acquisition Sub nor the consummation by Parent and Acquisition Sub of the transactions contemplated hereby, including the Merger, will (i) violate any provision of Parent’s or its Acquisition Sub’s certificate of incorporation or bylaws (or equivalent organizational documents), (ii) assuming that the Consents, registrations, declarations, filings and notices referred to in Section 5.3(b) have been obtained or made, any applicable waiting periods referred to therein have expired and any condition precedent to any such Consent has been satisfied, conflict with or violate any Law applicable to Parent or any of its Subsidiaries (including Acquisition Sub) or by which any property or asset of Parent or any of its Subsidiaries (including Acquisition Sub) is bound or affected or (iii) result in any breach of, or constitute a default (with or without notice or lapse of time, or both) under, or give rise to any right of termination, acceleration or cancellation of, any Contract to which Parent or any of its Subsidiaries (including Acquisition Sub) is a party, or by which any of their respective properties or assets is bound, other than, in the case of clauses (ii) and (iii), any such conflict, violation, breach, default, termination, acceleration or cancellation that would not have a Parent Material Adverse Effect.

(b)          No Consent of, or registration, declaration or filing with, or notice to, any Governmental Authority is required to be obtained or made by or with respect to Parent or any of its Subsidiaries (including Acquisition Sub) in connection with the execution, delivery and performance of this Agreement or the consummation of the transactions contemplated hereby, including the Merger, other than (i) the applicable requirements, if any, of the Exchange Act and the rules and regulations promulgated thereunder, as may be required in connection with this Agreement and the transactions contemplated hereby, (ii) the filing of the Certificate of Merger with the Secretary in accordance with the DGCL and appropriate documents with the relevant authorities of the other jurisdictions in which the Parent or any of its Subsidiaries is qualified to do business, (iii) such filings as may be required in connection with the Taxes described in Section 9.9, (iv) applicable requirements under corporation or Blue Sky Laws of various states, (v) filings with the NYSE, (vi) such other items required solely by reason of the participation of the Company in the transactions contemplated hereby, (vii) consent from the FCC for the transfer of control of the FCC Licenses under the Communications Act of 1934, and (viii) such other Consents, registrations, declarations, filings or notices, the failure of which to be obtained or made would not have a Parent Material Adverse Effect.

Section 5.4          Litigation. As of the date hereof, there is no Action pending or, to the Knowledge of Parent, threatened against Parent or any of its Subsidiaries that would have a Parent Material Adverse Effect, nor is there any Order of any Governmental Authority outstanding against, or, to the Knowledge of Parent, investigation by any Governmental Authority involving, Parent or any of its Subsidiaries that would have a Parent Material Adverse Effect. As of the date hereof, there is no Action pending or, to the Knowledge of Parent, threatened seeking to prevent, enjoin, modify, materially delay or challenge the Merger or any of the other transactions contemplated by this Agreement.

Section 5.5          Information Supplied. None of the information supplied or to be supplied by or on behalf of Parent or any of its Affiliates (including Acquisition Sub) expressly for inclusion or incorporation by reference in the Proxy Statement will, at the date it is first mailed to the stockholders of the Company and at the time of the Stockholders’ Meeting, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they are made, not misleading, except that no representation or warranty is made by Parent or Acquisition Sub with regards to statements made therein based on information supplied by or on behalf of the Company (or any of its Affiliates) for inclusion therein.

Section 5.6          Equity Financing; Sufficient Funds.

(a)          Parent has delivered to the Company a true, correct and complete copy of the executed equity commitment letters, dated as of the date hereof (the “Equity Commitment Letters”) from each of SER Capital Partners I, LP, a Delaware limited partnership, SER Capital Partners I-A, LP, a Delaware limited partnership, SER Coinvest Partners I, LP, a Delaware limited partnership, SER Coinvest Partners I-A, LP, a Delaware limited partnership, and SER Coinvest Partners I-B, LP, a Delaware limited partnership (collectively, the “Guarantors”), pursuant to which the Guarantors have committed to invest in Parent, subject to the terms and conditions therein, the amounts set forth therein (the “Equity Financing”). The Equity Commitment Letters expressly provide, and will continue to expressly provide, that the Company is a third-party beneficiary thereof.

(b)          As of the date hereof, (i) the Equity Commitment Letters are in full force and effect, (ii) the Equity Commitment Letters have not been restated, modified, amended or supplemented in any respect or waived, and no such restatement, modification, amendment, supplement or waiver is contemplated, and (iii) the respective obligations and commitments contained in the Equity Commitment Letters have not been withdrawn, reduced, rescinded, amended, restated, otherwise modified or repudiated in any respect or terminated in any respect prior to the date of this Agreement, and no such withdrawal, reduction, rescission, amendment, restatement, other modification, repudiation or termination is contemplated. The Equity Commitment Letters, in the forms so delivered, constitute legal, valid and binding obligations of Parent and Acquisition Sub, as applicable, and (to the knowledge of Parent and Acquisition Sub) the other parties thereto and are enforceable in accordance with their respective terms against Parent and Acquisition Sub and (to the knowledge of Parent and Acquisition Sub) against each of the other parties thereto. Except for the fee letter, and other than as expressly set forth in the Equity Commitment Letters, there are no engagement letters, side letters, Contracts, understandings, agreements or other arrangements of any kind, whether written or oral, relating to the Equity Financing. Neither Parent nor Acquisition Sub is, nor any other party to any of the Equity Commitment Letters is, in default in the performance, observation or fulfillment of any obligation, covenant or condition contained in any Equity Commitment Letters, and no event has occurred or circumstance exists which, with or without notice, lapse of time or both, would reasonably be expected to (w) constitute or result in a default under or breach on the part of Parent or Acquisition Sub, or on the part of any other party under the Equity Commitment Letters, (x) constitute or result in a failure by Parent or Acquisition Sub or any other party to the Equity Commitment Letters to satisfy, or any delay in satisfaction of, any condition or other contingency to the full funding of the Equity Financing under the Equity Commitment Letters, (y) make any assumptions or any of the statements set forth in the Equity Commitment Letters inaccurate in any material respect or (z) otherwise result in any portion of the Equity Financing being unavailable on a timely basis, and in any event, not later than the Closing. Neither Parent nor Acquisition Sub has reason to believe that it will be unable to satisfy on a timely basis, and in any event, not later than the Closing, any term or condition of the Equity Commitment Letters required to be satisfied by it or that the full amounts committed pursuant to the Equity Commitment Letters will not be available on the Closing Date if the terms or conditions to be satisfied by it contained in the Equity Commitment Letters are satisfied. The aggregate proceeds from the Equity Financing when funded in accordance with the Equity Commitment Letters are sufficient and available to (A) fund all of the amounts required to be provided by Parent and/or Acquisition Sub for the consummation of the transactions contemplated hereby, including the Merger, and (B) perform all of Parent’s and Acquisition Sub’s payment obligations under this Agreement, including the payment of the Aggregate Merger Consideration, and any amounts payable pursuant to Section 3.3, and the payment of all associated costs and Expenses of the Merger (including any fees and expenses related to the transactions contemplated hereby, including the Equity Financing) (the “Funding Obligations” and such sufficient proceeds, the “Funds”). There are no conditions precedent or other contingencies related to the funding or investing, as applicable, of the full net proceeds (or any portion) of the Equity Financing at or prior to the Closing, other than as expressly set forth in the Equity Commitment Letters as in effect on the date hereof. Notwithstanding anything contained in this Agreement to the contrary, Parent and Acquisition Sub acknowledge and agree that their respective obligations hereunder are not conditioned in any manner whatsoever upon obtaining the Funds to satisfy the Funding Obligations.

Section 5.7          Guarantees. Concurrently with the execution of this Agreement, Parent and Acquisition Sub have delivered to the Company the duly executed Guarantees of the Guarantors, dated as of the date hereof. Each of the Guarantees has been duly and validly executed and delivered by the applicable Guarantor and is in full force and effect and is a legal, valid and binding obligation of the applicable Guarantor, enforceable against such Guarantor in accordance with its terms (subject to applicable bankruptcy, insolvency, reorganization, moratorium and other similar Laws, now or hereafter in effect, affecting creditors’ rights generally and remedies generally) and no event has occurred or circumstance exists which, with or without notice, lapse of time or both, would or would reasonably be likely to constitute or result in a default under or breach on the part of such Guarantor of such Guarantee.

Section 5.8          Capitalization of Acquisition Sub. The authorized share capital of Acquisition Sub consists of 1,000 shares, $0.01 par value per share, all of which are validly issued and outstanding. All of the issued and outstanding share capital of Acquisition Sub is, and at the Effective Time will be, owned by Parent. Acquisition Sub was formed solely for the purpose of engaging in the transactions contemplated hereby, and it has not conducted any business prior to the date hereof and has no, and prior to the Effective Time will have no, assets, liabilities or obligations of any nature other than those incident to its formation and pursuant to this Agreement and the Merger and other transactions contemplated by this Agreement.

Section 5.9        Investment Intention. Parent is acquiring through the Merger the shares of capital stock of the Surviving Corporation for its own account, for investment purposes only and not with a view to the distribution (as such term is used in Section 2(11) of the Securities Act) thereof. Parent understands that the shares of capital stock of the Surviving Corporation will not be registered under the Securities Act or any Blue Sky Laws and cannot be sold unless subsequently registered under the Securities Act, any applicable Blue Sky Laws or pursuant to an exemption from any such registration.

Section 5.10        Brokers. Other than Guggenheim Partners, no broker, finder, investment banker, consultant or intermediary is entitled to any investment banking, brokerage, finder’s or similar fee or commission in connection with the Merger or any of the other transactions contemplated by this Agreement based upon arrangements made by or on behalf of Parent, Acquisition Sub, the Guarantors or any of their respective Subsidiaries.

Section 5.11        Solvency. Subject to the accuracy of the representations and warranties set forth in Article IV, the Surviving Corporation will, after giving effect to all of the transactions contemplated by this Agreement, including the Equity Financing and the Funding Obligations, be Solvent at and immediately after the Effective Time. As used in this Section 5.11, the term “Solvent” means, with respect to a particular date, that on such date, each of Parent and Acquisition Sub and, after the Merger, Parent and the Surviving Corporation and its Subsidiaries, has sufficient capital and liquidity with which to conduct its business. For purposes of this Section 5.11, the amount of any contingent liabilities at any time shall be computed as the amount that, in light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability.

Section 5.12         Acknowledgment of Disclaimer of Other Representations and Warranties.

(a)          Except for the representations and warranties expressly set forth in this Article V, neither Parent nor Acquisition Sub nor any other Person on behalf of Parent or Acquisition Sub makes (and Parent, on behalf of itself, its Subsidiaries and their respective Affiliates and Representatives, hereby disclaims) and the Company has not relied on, any express or implied representation or warranty with respect to Parent, Acquisition Sub, its Subsidiaries or any of their respective businesses, operations, properties, assets, liabilities or otherwise in connection with this Agreement, the Merger or the other transactions contemplated hereby, including as to the accuracy or completeness of any information.

(b)          Except for the representations and warranties expressly set forth in Article IV, each of Parent and Acquisition Sub acknowledges and agrees that none of the Company, the Company’s Subsidiaries or any other Person on behalf of the Company or any of the Company’s Subsidiaries makes, or has made, any express or implied representation or warranty with respect to the Company or any of the Company’s Subsidiaries or with respect to the accuracy or completeness of any information provided, or made available, to Parent, Acquisition Sub or any of their Affiliates or Representatives, including with respect to the Company and its Subsidiaries respective businesses, operations, assets, liabilities, conditions (financial or otherwise), prospects or otherwise in connection with this Agreement, the Merger or the other transactions contemplated by this Agreement, and Parent and Acquisition Sub and their respective Representatives and Affiliates are not relying on, and waive any claim based on reliance on, any representation, warranty or other information of the Company or any Person except for those expressly set forth in Article IV. Without limiting the generality of the foregoing, Parent and Acquisition Sub acknowledge and agree that none of the Company, any of the Company’s Subsidiaries or any other Person has made a representation or warranty (including as to accuracy or completeness) to Parent or Acquisition Sub with respect to, and none of the Company, any of the Company’s Subsidiaries or any other Person shall be subject to any liability to Parent, Acquisition Sub or any other Person resulting from, the Company or any of the Company’s Subsidiaries or their respective Representatives or Affiliates providing, or making available, to Parent, Acquisition Sub or any of their Affiliates or their respective Representatives, or resulting from the omission of, any estimate, projection, prediction, forecast, data, financial information, memorandum, presentation or any other materials or information, including any materials or information made available to Parent and/or its Representatives or Affiliates in connection with presentations by the Company’s management or in the VDR. Parent and Acquisition Sub acknowledge that there are uncertainties inherent in attempting to make estimates, projections, budgets, pipeline reports and other forecasts and plans, that they are familiar with such uncertainties and that each of Parent and Acquisition Sub are taking full responsibility for making its own evaluation of the adequacy and accuracy of all estimates, projections, budgets, pipeline reports and other forecasts and plans so furnished to it, including the reasonableness of the assumptions underlying such estimates, projections, budgets, pipeline reports and other forecasts and plans. Each of Parent and Acquisition Sub has relied solely on the results of its own independent investigation and the representations and warranties set forth in Article IV and has not relied directly or indirectly on any materials or information made available to Parent and/or its Representatives by or on behalf of the Company other than those referenced in Article IV and the related section of the Company Disclosure Letter.

Section 6.1          Conduct of Business by the Company Pending the Merger. The Company covenants and agrees that, between the date of this Agreement and the earlier of the Effective Time and the date, if any, on which this Agreement is terminated pursuant to Section 8.1, except as (i) may be required by Law, (ii) may be consented to in writing by Parent, electronic mail being sufficient (which consent shall not be unreasonably withheld, conditioned or delayed), (iii) may be required, contemplated or permitted pursuant to this Agreement, or (iv) set forth in Section 6.1 of the Company Disclosure Letter, (x) the Company shall use its commercially reasonable efforts to conduct the business of the Company and its Subsidiaries in the ordinary course of business, and to the extent consistent therewith, the Company shall use commercially reasonable efforts to preserve intact its business in all material respects and (y) the Company shall not, and shall not permit any of its Subsidiaries to:

(a)       amend or otherwise change the Company Charter or the Company Bylaws (or such equivalent organizational or governing documents of any of its Subsidiaries) or the terms of any security of the Company or any Subsidiary of the Company;

(b)        split, combine, reclassify, redeem, repurchase or otherwise acquire or amend the terms of any capital stock or other equity interests or rights (other than repurchases or retention of shares of Company Common Stock in connection with the vesting or settlement of Company Equity Awards);

(c)         issue, sell, pledge, dispose, encumber or grant any shares of its or its Subsidiaries’ capital stock or other equity interests (including any grants of Company Equity Awards under the Company Equity Plan), or any options, warrants, convertible securities or other rights of any kind to acquire any shares of its or its Subsidiaries’ capital stock or equity interests except for transactions among the Company and its direct or indirect wholly owned Subsidiaries or among the Company’s direct or indirect wholly owned Subsidiaries and for Permitted Liens; provided, however, that the Company may issue shares of Company Common Stock upon the vesting or settlement of Company Equity Awards as in effect on the date hereof or upon the conversion of Series A Preferred Stock or Series B Preferred Stock in accordance with the terms of the applicable Company Certificate of Designation;

(d)         authorize, declare, pay or make any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to the Company’s or any of its Subsidiaries’ capital stock or other equity interests, other than (i) dividends payable in respect of the Series A Preferred Stock and the Series B Preferred Stock issued and outstanding as of the date of this Agreement and in accordance with their respective terms, and (ii) dividends paid by any wholly owned Subsidiary of the Company to the Company or any wholly owned Subsidiary of the Company;

(e)          except as required under the terms of a Company Benefit Plan as currently in effect and disclosed on Section 4.12(a) of the Company Disclosure Letter or an existing collective bargaining agreement or by applicable Law, (i) increase the compensation payable or to become payable or benefits provided or to be provided to any director, officer or employee of the Company or any of its Subsidiaries (other than increases in base salary and corresponding target bonus opportunity, in each case in the ordinary course of business), (ii) establish, adopt, enter into, terminate or amend any Company Benefit Plan (or any arrangement which if in existence as of the date hereof would constitute a Company Benefit Plan), (iii) enter into, amend or terminate any collective bargaining agreement with any labor union, (iv) take any action to accelerate the vesting or payment, or fund or in any other way secure the payment, of compensation or benefits under any Company Benefit Plan, except as explicitly required by this Agreement; (v) negotiate, extend, amend or enter into any new employment, engagement, severance or similar agreements with any Continuing Employee who receives or would receive total annual base cash compensation of more than $200,000 per annum; or (vi) hire or terminate (other than for cause) any Continuing Employee who receives or would receive total annual base cash compensation of more than $200,000 per annum;

(f)          acquire (including by merger, consolidation or acquisition of stock or assets), except in respect of any merger, consolidation or business combination among the Company and its wholly owned Subsidiaries or among the Company’s wholly owned Subsidiaries, any material equity interest in or business of any Person;

(g)        sell, lease, sublease, mortgage, pledge or otherwise encumber or dispose of any material assets of the Company, including any Owned Real Property or Leased Real Property, except in the ordinary course of business;

(h)        incur, or amend in any material respect the terms of, any indebtedness for borrowed money, including the Notes and the Indenture governing the Notes, or assume or guarantee any such indebtedness for any Person, except for indebtedness incurred (i) under the Existing Debt Agreement or incurred to replace, renew, extend, refinance or refund any existing indebtedness of the Company or its Subsidiaries other than the Notes on terms and conditions not inconsistent with prevailing market conditions for substantially similar credit facilities at such time, (ii) pursuant to other agreements in effect prior to the execution of this Agreement to the extent such agreements were not entered into with an Affiliate of the Company, (iii) under capital leases, purchase money financing, equipment financing and letters of credit in the ordinary course of business or (iv) between or among the Company or any of its Subsidiaries;

(i)          enter into, modify or amend any Company Material Contract which cannot be terminated without material penalty upon notice of 90 days or less other than in the ordinary course of business;

(j)          make any material change to its methods of accounting in effect at September 30, 2022, except as required by GAAP, or make any material change in internal accounting controls or disclosure controls and procedures that could reasonably be expected to negatively affect the Company;

(k)        (i) make or change any material Tax election, (ii) adopt or change any accounting period or any accounting method with respect to Taxes, (iii) file any Tax Return outside the ordinary course of business, (iv) file any material amended Tax Return or any claim for a material Tax refund, (v) enter into any closing agreement with respect to a material amount of Taxes, (vi) settle any material Tax claim, assessment or Action relating to the Company or any of its Subsidiaries, or (vii) consent to any extension or waiver of the limitation period applicable to any Tax claim, assessment or Action relating to the Company or any of its Subsidiaries (other than pursuant to an automatic extension of time to file a Tax Return obtained in the ordinary course of business);

(l)          except as contemplated by this Agreement, solely with respect to the Company, adopt or enter into a plan of complete or partial liquidation or dissolution;