Agreement and Plan of Merger, dated as of August 28, 2019, by and among Ecology and Environment Inc., WSP Global Inc. and Everest Acquisition Corp

9.6        Disclosure Schedule.  The Disclosure Schedule shall be arranged in separate parts corresponding to the numbered and lettered sections contained in Section 2 (or any other applicable section or subsection contained in this Agreement), and the information disclosed in any numbered or lettered part shall be deemed to relate to and to qualify only the particular representation or warranty set forth in the corresponding numbered or lettered section in Section 2 (or any other applicable section or subsection contained in this Agreement); provided that the disclosure of any information in any part or subpart of the Disclosure Schedule shall also constitute disclosure for purposes of all other Sections of this Agreement with respect to which such disclosure is applicable or relevant on its face from the substance of the matter disclosed.  For purposes of this Agreement, each statement or other item of information set forth or incorporated in a particular part or subpart of the Disclosure Schedule shall be deemed to be a representation and warranty made by the Company in the corresponding section or subsection of Section 2 (or any other applicable section or subsection contained in this Agreement). Any update of or modification to the Disclosure Schedule made or purported to have been made on or after the date of this Agreement shall not affect or be deemed to modify any representation, warranty, covenant or agreement made by the Company herein or the conditions to the obligation of any party to effect the Merger and otherwise consummate the Contemplated Transactions in accordance with the terms and provisions hereof or otherwise prejudice in any way the rights and remedies of Parent or Merger Sub hereunder.

9.7        Assignability; No Third-Party Beneficiaries.  This Agreement shall be binding upon, and shall be enforceable by and inure solely to the benefit of, the parties hereto and their respective successors and permitted assigns; provided, however, that neither this Agreement nor any of the parties’ rights, interests or obligations hereunder may be assigned or delegated by operation of law or otherwise without the prior written consent of (i) the Company (in the case of an assignment by either Parent or Merger Sub) or (ii) Parent (in the case of an assignment by the Company); provided, however, that, subject to the following sentence, Parent or Merger Sub, upon prior written notice to the Company, may assign any or all of their respective rights or obligations under this Agreement, in whole or in part, to any wholly-owned Subsidiary of Parent without obtaining the consent or approval of any other party hereto.  No assignment shall relieve the assigning party of any of its obligations hereunder. Any purported assignment in violation of this Section 9.7 shall be null and void.  This Agreement is not intended, and shall not be deemed, to confer any rights or remedies upon any Person other than the parties hereto and their respective successors and permitted assigns or to otherwise create any third-party beneficiary hereto, except the Indemnified Persons shall be third-party beneficiaries of Section 5.4.

9.8         Notices.  Each notice, request, demand or other communication under this Agreement shall be in writing and shall be deemed to have been duly given, delivered or made as follows: (a) if delivered by hand, when delivered; (b) if sent by facsimile transmission before 5:00 p.m. on a Business Day in the delivery location, when transmitted and receipt is confirmed; (c) if sent by facsimile transmission after 5:00 p.m. on a Business Day in the delivery location or on a day other than a Business Day and receipt is confirmed, on the following Business Day; (d) if sent via an overnight international courier service, the Business Day after being delivered to such courier; and (e) if sent by email, when sent, provided that (i) the subject line of such email states that it is a notice delivered pursuant to this Agreement and (ii) the sender of such email does not receive a written notification of delivery failure. All notices and other communications hereunder shall be delivered to the address, facsimile number or email address set forth beneath the name of such party below (or to such other address, facsimile number or email address as such party shall have specified in a written notice given to the other parties hereto):

if to Parent or Merger Sub:

with copies (which shall not constitute notice) to:

if to the Company:

with a copy (which shall not constitute notice) to:

9.9         Severability.  Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the validity or enforceability of the remaining terms and provisions of this Agreement or the validity or enforceability of the invalid or unenforceable term or provision in any other situation or in any other jurisdiction.  If a final judgment of a court of competent jurisdiction declares that any term or provision of this Agreement is invalid or unenforceable, the parties hereto agree to negotiate in good faith to replace such invalid or unenforceable term or provision in a mutually acceptable manner with a valid and enforceable term or provision that will achieve, to the extent possible, the economic, business and other purposes of such invalid or unenforceable term or provision.  In the event that the parties are unable to agree to such replacement, the parties agree that the court making the determination referred to above shall have the power to limit such term or provision, to delete specific words or phrases or to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Agreement shall be valid and enforceable as so modified.

9.10       Remedies.  Except as otherwise provided in this Agreement, any and all remedies in this Agreement expressly conferred upon a party shall be deemed cumulative with and not exclusive of any other remedy conferred by this Agreement, or by law or equity, upon such party, and the exercise by a party hereto of any one remedy shall not preclude the exercise of any other remedy, and nothing in this Agreement shall be deemed a waiver by any party of any right to specific performance or injunctive relief. The parties acknowledge and agree that irreparable damage would occur in the event any of the provisions of this Agreement required to be performed by any of the parties were not performed in accordance with their specific terms or were otherwise breached, and that monetary damages, even if available, would not be an adequate remedy therefor.  Accordingly, in the event of any breach or threatened breach by any party of any covenant or obligation contained in this Agreement, any non-breaching party shall be entitled to obtain, without proof of actual damages (and in addition to any other remedy to which such non-breaching party may be entitled at law or in equity): (a) a decree or order of specific performance to enforce the observance and performance of such covenant or obligation; and (b) an injunction restraining such breach or threatened breach.  Each of the parties hereby waives any requirement for the securing or posting of any bond in connection with any such remedy.

9.11       Construction.

(a)         For purposes of this Agreement, whenever the context requires: the singular number shall include the plural, and vice versa; the masculine gender shall include the feminine and neuter genders; the feminine gender shall include the masculine and neuter genders; and the neuter gender shall include masculine and feminine genders.

(b)          The parties hereto agree that any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not be applied in the construction or interpretation of this Agreement.

(c)         As used in this Agreement, the words “include,” “including” and variations thereof, shall not be deemed to be terms of limitation, but rather shall be deemed to be followed by the words “without limitation.” All references in this Agreement to “dollars” or “$” shall mean United States Dollars.

(d)        Unless otherwise indicated or the context otherwise requires: (i) any definition of or reference to any agreement, instrument or other document or any Law in this Agreement shall be construed as referring to such agreement, instrument or other document or Law as from time to time amended, supplemented or otherwise modified; (ii) any reference in this Agreement to any Person shall be construed to include such Person’s successors and assigns; (iii) all references to “Sections,” “Schedules” and “Exhibits” in this Agreement or in any Schedule or Exhibit to this Agreement are intended to refer to Sections of this Agreement and Schedules and Exhibits to this Agreement, respectively; (iv) the words “herein”, “hereof” and “hereunder”, and words of similar import, shall be construed to refer to this Agreement in its entirety and not to any particular provision of this Agreement; and (v) any statute defined or referred to in this Agreement shall include all rules and regulations promulgated thereunder.

(e)          Neither the specification of any dollar amount in any representation or warranty contained in this Agreement nor the inclusion of any specific item in the Disclosure Schedule is intended to imply that such amount, or higher or lower amounts, or the item so included or other items, are or are not material, and no party shall use the fact of the setting forth of any such amount or the inclusion of any such item in any dispute or controversy between the parties as to whether any obligation, item or matter not described herein or included in the Disclosure Schedule is or is not material for purposes of this Agreement.  Unless this Agreement specifically provides otherwise, neither the specification of any item or matter in any representation or warranty contained in this Agreement nor the inclusion of any specific item in the Disclosure Schedules is intended to imply that such item or matter, or other items or matters, are or are not in the ordinary course of business, and no party shall use the fact of the setting forth or the inclusion of any such item or matter in any dispute or controversy between the parties as to whether any obligation, item or matter not described herein or included in the Disclosure Schedule is or is not in the ordinary course of business for purposes of this Agreement.

(f)          The headings contained in this Agreement are for convenience of reference only, shall not be deemed to be a part of this Agreement and shall not be referred to in connection with the construction or interpretation of this Agreement.

In Witness Whereof, the parties have caused this Agreement to be duly executed as of the date first above written.

For purposes of the Agreement (including this Exhibit A):

“Acceptable Confidentiality Agreement” means any confidentiality agreement between the Company and a Person with terms that, taken as a whole, are not materially less restrictive to such Person than those restrictions on Parent contained in the Confidentiality Agreement.

 “Acquired Companies” means, collectively, the Company and the Company’s Subsidiaries, and their respective predecessors (including any Entity that has been merged into the Company or any of its Subsidiaries).

“Acquired Company Returns” has the meaning assigned to such term in Section 2.16 of the Agreement.

“Acquisition Proposal” means any offer or proposal (other than an offer or proposal made or submitted by Parent or any of its Subsidiaries) contemplating or otherwise relating to any Acquisition Transaction.

“Acquisition Transaction” means any transaction or series of transactions (other than the Contemplated Transactions) involving:

(a)       any merger, consolidation, amalgamation, plan or scheme of arrangement, share exchange, business combination, joint venture, issuance of securities, acquisition of securities, reorganization, recapitalization, tender offer, exchange offer or other similar transaction: (i) in which a Person or “group” (as defined in the Exchange Act and the rules thereunder) of Persons directly or indirectly acquires beneficial or record ownership of securities representing 20% or more of the outstanding securities of any class (or instruments convertible into or exercisable or exchangeable for 20% or more of any such class) of equity securities of the Company; or (ii) in which the Company issues securities representing 20% or more of the outstanding securities of any class of the equity securities of the Company (or instruments convertible into or exercisable or exchangeable for 20% or more of any such class); or

(b)         any sale, exchange, transfer or other disposition of any business or businesses or assets that constitute or account for 20% or more of the consolidated net revenues, consolidated net income or consolidated assets of the Acquired Companies.

 “Affiliate” of any Person means another Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such first Person.  For purposes of this definition and the Agreement, the term “control” (and correlative terms) means the power, whether by contract, equity ownership or otherwise, to direct the policies or management of a Person.  The term “Affiliate” shall be deemed to include current and future “Affiliates.”

“Agreement” has the meaning assigned to such term in the preamble to the Agreement.

“Alternative Acquisition Agreement” has the meaning assigned to such term in Section 8.1(i) of the Agreement.

“Balance Sheet Date” means April 27, 2019.

“Burdensome Condition” shall have the meaning set forth in Section 5.5(e) of the Agreement.

“Business Day” means any day other than a Saturday, a Sunday or a day on which banking institutions in Montreal, Quebec, Canada or New York, New York, USA are authorized or obligated by law or executive order to close.

“Certification” shall have the meaning set forth in Section 2.5(a) of the Agreement.

“CFIUS” means the Committee on Foreign Investment in the United States or any U.S. Governmental Body acting in its capacity as a member of CFIUS or directly involved in CFIUS’s assessment, review or investigation of the Contemplated Transactions.

The “CFIUS Condition” shall be deemed to have been satisfied if: (a) the parties receive written notice from CFIUS stating that CFIUS has concluded that the Contemplated Transactions are neither “covered transactions” nor “pilot program covered transactions” as those terms are defined at 31 C.F.R. § 800.207 and 31 C.F.R. § 801.210, respectively, and, therefore, not subject to review by CFIUS; (b) the parties receive written notice from CFIUS stating that CFIUS has concluded all action under Section 721 of the DPA with respect to the Contemplated Transactions and CFIUS has determined that there are no unresolved national security concerns with respect to the Contemplated Transactions; or (c) CFIUS shall have sent a report to the President of the United States requesting the President’s decision and the President has announced a decision not to take any action to suspend or prohibit the Merger pursuant to the DPA.

“CFIUS Notification Event” shall be deemed to have occurred if CFIUS notifies Parent or the Company that CFIUS intends to send a report to the President of the United States recommending that the President of the United States act to suspend or prohibit the Merger pursuant to the DPA.

“Change in Circumstances” has the meaning assigned to such term in Section 5.2(d)(ii) of the Agreement.

“Closing” has the meaning assigned to such term in Section 1.3 of the Agreement.

“Closing Date” has the meaning assigned to such term in Section 1.3 of the Agreement.

“COBRA” means the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended.

“Code” means the United States Internal Revenue Code of 1986, as amended.

“Company” has the meaning assigned to such term in the preamble to the Agreement.

“Company Associate” means any current or former employee, Contract Worker, officer, member of the board of directors or managers (or similar body) of or to any of the Acquired Companies.

“Company Balance Sheet” means the consolidated balance sheet of the Company and its consolidated subsidiaries as of April 27, 2019 included in the Company’s Quarterly Report on Form 10-Q for the quarterly period ended April 27, 2019, as filed with the SEC on June 17, 2019.

“Company Board Recommendation” has the meaning assigned to such term in Section 5.2(b) of the Agreement.

“Company Class A Common Stock” means the Class A Common Stock, $0.01 par value per share, of the Company.

“Company Class B Common Stock” means the Class B Common Stock, $0.01 par value per share, of the Company.

“Company Common Stock” means the Company Class A Common Stock and the Company Class B Common Stock.

“Company Contract” means any Contract to which any of the Acquired Companies is a party, is otherwise bound by or is an express third party beneficiary of.

“Company Contractor Entity” means that certain Person that was designated by the applicable Governmental Body as the awardee and payee with respect to Section 2.11(a)(iii) of the Disclosure Schedules.

“Company Employee Plan” means: (a) each “employee benefit plan” (as defined in Section 3(3) of ERISA), whether or not subject to ERISA; and (b) any other material employment, consulting, salary, bonus, commission, other remuneration, stock option, restricted stock, stock purchase or other equity-based award (whether payable in cash, securities or otherwise), benefit, incentive compensation, profit sharing, savings, pension, retirement (including early retirement and supplemental retirement), disability, insurance (including life and health insurance), vacation, deferred compensation, supplemental retirement (including termination indemnities and seniority payments), severance, termination, redundancy, relocation, repatriation, expatriation, retention, change of control, transaction bonus, death benefits, hospitalization, medical, life or other insurance, flexible benefits, supplemental unemployment benefits, and similar fringe, welfare or other employee benefit plan, program, agreement, Contract, policy or binding arrangement (whether or not in writing) (i) maintained or contributed to or required to be contributed to by any of the Acquired Companies for the benefit of or relating to any Company Associate of any Acquired Company, (ii) maintained or contributed to or required to be contributed to by any Affiliate of the Acquired Companies or (iii) with respect to which any Acquired Company has any current or is reasonably likely to have any future Liability.

“Company Equity Award” means an award of Company Restricted Stock.

“Company IP” means all Intellectual Property Rights in which any of the Acquired Companies has (or purports to have) an ownership interest or an exclusive license.

“Company Related Party” has the meaning assigned to such term in Section 8.3(f) of the Agreement

“Company Restricted Stock” means each share of Company Common Stock that is unvested or is subject to a repurchase option or obligation, risk of forfeiture or other condition under any applicable restricted stock purchase agreement or other Contract with the Company or under the Company Stock Award Plan.

“Company SEC Reports” has the meaning assigned to such term in Section 2.5(a) of the Agreement.

“Company Stock Award Plan” means the Company’s 1998 Stock Award Plan and each supplemental Stock Award Plan adopted by the Company, including the Company’s 2016 Stock Award Plan.

“Company Stock Certificate” has the meaning assigned to such term in Section 1.6 of the Agreement.

“Company Stockholders Meeting” has the meaning assigned to such term in Section 5.2(a) of the Agreement.

“Company 401(a) Plan” has the meaning assigned to such term in Section 5.3(a) of the Agreement.

“Confidentiality Agreement” means that certain Confidentiality Agreement dated as of June 14, 2019, by and between Parent and the Company.

“Consent” means any approval, consent, ratification, permission, waiver or authorization (including any Governmental Authorization).

“Contemplated Transactions” means all actions and transactions contemplated by the Agreement, including the Merger.

“Continuing Employee” means each employee of the Company or any Acquired Company who is employed in the United States immediately prior to the Effective Time and continues employment with Parent, the Surviving Corporation or any Subsidiary or Affiliate of the Surviving Corporation after the Effective Time.

“Contract” means any written agreement, contract, or other legally binding instrument, including any written note, warranty, purchase order, license, sublicense, commitment or undertaking of any nature.

“Contract Worker” means any independent contractor, consultant, subcontractor, subconsultant or service provider, regardless of whether previously an employee or director of any Acquired Company, who is or was hired, retained, employed or used by any of the Acquired Companies and who is not: (a) classified by an Acquired Company as an employee; or (b) compensated by an Acquired Company through wages reported on a form W-2.

“Current Government Contract” has the meaning assigned to such term in Section 2.11(a) of the Agreement.

“Department of State” has the meaning assigned to such term in Section 1.3 of the Agreement.

“DFARS” means the Defense Federal Acquisition Regulation Supplement.

“Disclosure Schedule” means the disclosure schedule that has been prepared by the Company in accordance with the requirements of Section 9.6 of the Agreement and has been delivered by the Company to Parent on the date of the Agreement.

“Dissenting Shares” has the meaning assigned to such term in Section 1.8(b) of the Agreement.

“DOL” means the United States Department of Labor.

“DPA” means Section 721 of the Defense Production Act of 1950, as amended (50 U.S.C. § 4565), and all rules and regulations thereunder, including those codified at 31 C.F.R. Part 800 et seq.

“DCSA” has the meaning assigned to such term in Section 5.5(a) of the Agreement.

“DCSA Commitment Letter” has the meaning assigned to such term in Section 5.5(a) of the Agreement.

“EDGAR” means SEC’s Electronic Data Gathering Analysis and Retrieval System.

“Effect” has the meaning assigned to the term in the definition of Material Adverse Effect.

“Effective Time” has the meaning assigned to such term in Section 1.3 of the Agreement.

“Encumbrance” means any lien, pledge, hypothecation, mortgage, security interest, attachment, easement, encroachment or similar encumbrance.

“Enforceability Exceptions” means: (a) legal limitations on enforceability arising from applicable bankruptcy and other similar Laws affecting the rights of creditors generally; and (b) legal limitations on enforceability arising from rules of law governing specific performance, injunctive relief and other equitable remedies.

“Entity” means any corporation (including any non-profit corporation), general partnership, limited partnership, limited liability partnership, joint venture, estate, trust, company (including any company limited by shares, limited liability company or joint stock company), firm, society or other enterprise, association, organization or entity.

“Environmental Law” means any Law, including any Governmental Authorization required thereunder, relating to: (a) the protection, preservation, or regulation of the environment (including air, groundwater, surface water, drinking water supply, surface land, subsurface land, soil and natural resources); (b) human health or safety; or (c) the use, storage, handling, generation, manufacture, processing, remediation, exposure to, or Release or disposal of Hazardous Materials.

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

“ERISA Affiliate” means any Person under common control with any of the Acquired Companies within the meaning of Sections 414(b), (c), (m) and (o) of the Code, and the regulations thereunder.

“Exchange Act” means the Securities Exchange Act of 1934, as amended.

“Excluded Holder” has the meaning assigned to such term in Section 1.5(a)(i)

“Excluded Person” means any Person or group of Persons (as defined in the Exchange Act and the rules thereunder) from whom the Company or any of its Representatives has received, prior to the No-Shop Period Start Date, a bona fide, written Acquisition Proposal (inclusive of any amendment or modification thereto, regardless of when delivered) that the Company’s board of directors determines in good faith, after taking into account the advice of an independent financial advisor and outside legal counsel, constitutes a Superior Offer or could be expected to result in a Superior Offer; provided, however, that a Person or group of Persons shall immediately cease to be an Excluded Person (and the provisions of this Agreement applicable to Excluded Persons shall cease to apply with respect to such Person(s)) if (A) such Acquisition Proposal made by such Person(s) prior to the start of the No-Shop Period Start Date is withdrawn (it being understood that any amendment, modification or replacement of such Acquisition Proposal shall not, in and of itself, be deemed a withdrawal of such Acquisition Proposal) or negotiations between the Company and such Person are otherwise definitively terminated, (B) such Acquisition Proposal, in the good faith determination of the Company’s board of directors (after taking into account the advice of its independent financial advisor and outside legal counsel), no longer constitutes or could be expected to result in a Superior Offer, or (C) such Person(s) comprising the Excluded Person cease to constitute at least 50% of the equity, voting or financial interests of such Person or group of Persons that made such Acquisition Proposal prior to the start of the No-Shop Period Start Date.

“Excluded Tax Agreement” has the meaning assigned to such term in Section 2.16(f) of the Agreement.

“Existing D&O Policy” has the meaning assigned to such term in Section 5.4(c) of the Agreement.

“FAR” means the Federal Acquisition Regulation.

A “Final CFIUS Turndown” shall be deemed to have occurred if: (a) a decision to suspend or prohibit the Merger is publicly announced by the President of the United States pursuant to the DPA; or (b) at any time after a CFIUS Notification Event, Parent makes a determination in good faith that the CFIUS Condition is unlikely to be satisfied without the imposition of any Burdensome Condition and provides the Company with written notice of such determination.

“Foreign Export and Import Law” means any Law of the United Nations, the European Union, or the United Kingdom regulating exports, imports or re-exports to or from such foreign country, including the export or re-export of any goods, services or technical data.

“Foreign Plan” means any: (a) Company Employee Plan that is subject to any of the Laws of any jurisdiction outside the United States; (b) Company Employee Plan that covers or has covered any Company Associate whose services are or have been performed primarily outside of the United States, or (c) any plan, program, policy, practice, Contract or other arrangement of any Acquired Company mandated by a Governmental Body outside the United States.

“GAAP” means generally accepted accounting principles in the United States.

“GAC” means Gestion Ambiental Consultores S.A.

“GAC Shareholders Agreement” means the Shareholders’ Agreement, dated as of September 23, 1999, by and among Ecology and Environment de Chile S.A., Inversiones La Fuente Limitada, Inversiones Quillay Limitada and Inversiones y Servicios Covala Limitada.

“Government Bid” means any outstanding quotation, bid or proposal which, if accepted or awarded, would result in a Government Contract.

“Government Contract” means any Contract (including any task order, delivery order, teaming agreement, joint venture agreement, strategic alliance agreement, basic ordering agreement, pricing agreement or letter contract) between any of the Acquired Companies, on the one hand, and, on the other hand, (a) any Governmental Body; (b) any prime contractor of a Governmental Body in its capacity as a prime contractor; or (c) any subcontractor with respect to any Contract of a type described in clause “(a)” or clause “(b)” above. A task, purchase or delivery order under a Government Contract shall not constitute a separate Government Contract, for purposes of this definition, but shall be part of the Government Contract to which it relates.

 “Governmental Authorization” means: (a) any permit, license, certificate, franchise, permission, variance, clearance, registration, qualification or authorization issued, granted, given or otherwise made available by or under the authority of any Governmental Body or pursuant to any Law; or (b) any right under any Contract with any Governmental Body, and shall also include any required approval or clearance of any Governmental Body pursuant to any applicable Law relating to antitrust or competition matters.

“Governmental Body” means: any U.S. or non-U.S., federal, state or local government or subdivision thereof, or governmental, judicial, legislative, executive, administrative or regulatory authority, agency, commission, tribunal or body.

“Hazardous Materials” means any substance, material, chemical, or waste which is regulated or which would reasonably be expected to form the basis of Liability under Environmental Law or to which exposure is regulated by any Environmental Law, and includes any toxic waste, pollutant, contaminant, hazardous substance or material (including toxic mold), toxic substance, chemical substance, hazardous waste, special waste, or petroleum or any derivative or byproduct thereof, radon, radioactive material, asbestos or asbestos-containing material, urea formaldehyde, foam insulation, per or polyfluoroalkyl substances or polychlorinated biphenyls.

“IFRS” means International Financial Reporting Standards, as issued by the International Financial Reporting Standards Board and applicable to an Acquired Company.

“Indemnification Agreement” has the meaning assigned to such term in Section 2.10(a)(v) of the Agreement.

“Indemnified Persons” has the meaning assigned to such term in Section 5.4(a) of the Agreement.

“Information Privacy and Security Laws” means all applicable Laws relating to the processing, use, disclosure, collection, privacy, processing, transfer or security of Protected Information.

“Initial Outside Date” has the meaning assigned to such term in Section 8.1(b) of the Agreement.

“Intellectual Property Rights” means all intellectual property rights in, to or under: (a) patents and applications therefor and all reissues, divisions, renewals, extensions, provisionals, reexaminations, continuations and continuations-in-part thereof (“Patents”); (b) inventions (whether patentable or not), invention disclosures, improvements, methods, processes; (c) copyrights, and registrations and applications therefor (“Copyrights”), mask works, and all other rights corresponding thereto throughout the world, however denominated, whether registered or not, including works of authorship (including software, whether in source code, object code, firmware, or other form); (d) rights in industrial designs and any registrations and applications therefor; (e) trade names, trade dress, slogans, all identifiers of source, fictitious business names (D/B/As), domain names, logos, trademarks and service marks, including all goodwill therein, and any and all common law rights, registrations and applications therefor; (f) rights in trade secrets (including, those trade secrets defined in the Uniform Trade Secrets Act and under corresponding foreign statutory and common law), confidential business, technical and know-how information, non-public information, and other confidential information, including all technology, formulae, customer lists, business and marketing plans, and marketing information and rights to limit the use or disclosure thereof by any Person; and (g) any other proprietary intellectual property rights or similar or equivalent rights to any of the foregoing.

“IRS” means the United States Internal Revenue Service.

“IT System” means any software, hardware, network or systems owned or controlled by any of the Acquired Companies and used as information technology infrastructure or network equipment, including any server, workstation, router, hub, switch, data line, desktop application, server-based application, mobile application, cloud service hosted or provided by any of the Acquired Companies, mail server and firewall.

“ITAR” means the International Traffic in Arms Regulations, 22 C.F.R. §§ 120-130, as amended.

“Joint Voluntary Notice” means a joint voluntary notice filed with CFIUS in accordance with the DPA.

“Key Employee” has the meaning assigned to such term in Section 4.2(b)(xiv) of the Agreement.

“Knowledge” means, as to a particular fact or matter, the actual knowledge after reasonable inquiry (including inquiries with the Acquired Companies’ directors and managers, including the general manager of GAC but excluding any directors of GAC not appointed by the Company or any other manager of GAC) as of the date hereof of the individuals listed in the “Definitions” section of the Disclosure Schedule.

“Leased Real Property” has the meaning assigned to such term in Section 2.8(b) of the Agreement.

“Leases” has the meaning assigned to such term in Section 2.8(b) of the Agreement.

“Legal Proceeding” means any litigation, claim, action, suit or proceeding commenced, brought, conducted or heard by or before any Governmental Body or any arbitrator or arbitration panel.

“Law” means any law, statute, constitution, code, edict, Order, rule, regulation, or requirement issued, enacted or otherwise put into effect by or under the authority of any Governmental Body, including common law.

“Liability” means any debt, obligation, duty or liability of any nature (including any unknown, undisclosed, unmatured, unaccrued, unasserted, contingent, indirect, conditional, implied, vicarious, derivative, joint, several or secondary liability), regardless of whether such debt, obligation, duty or liability would be required to be disclosed on a balance sheet prepared in accordance with GAAP and regardless of whether such debt, obligation, duty or liability is immediately due and payable.

Any statement in Section 2 of the Agreement to the effect that any information, document or other material has been “Made Available to Parent” means that such information, document or material was: (a) filed with the SEC and publicly available on EDGAR in unredacted form at least two Business Days before the date of the Agreement (including as an exhibit to any of the Company’s filings with the SEC);  (b) provided for review by Parent and Parent’s Representatives at least 48 hours prior to the execution of the Agreement in the “Project Everest” virtual data room maintained by the Company with Donnelley Financial Solutions, Inc. in connection with the Merger; or (c) otherwise made available (electronically or otherwise) in written form to Parent or its Representatives prior to the execution of the Agreement; provided, that the foregoing clauses “(b)” and “(c)” shall be subject to any redaction reasonably deemed necessary or appropriate by the Company of information contained therein.

“Major Client” has the meaning assigned to such term in Section 2.12(a) of the Agreement.

“Major Supplier” has the meaning assigned to such term in Section 2.12(b) of the Agreement.

“Material Adverse Effect” means any effect, change, development, event or circumstance (each, an “Effect”) that, considered individually or together with all other Effects, (a) has had or resulted in, or would reasonably be expected to have or result in, a material adverse effect on the business, financial condition, assets, Liabilities or results of operations of the Acquired Companies, taken as a whole; or (b) has or would reasonably be expected to prevent, materially delay or materially impair the ability of the Company to timely consummate the Merger or any of the other Contemplated Transactions; provided, however, that, with respect to clause “(a)” above, any Effect, alone or in combination with other Effects, shall be deemed not to constitute a Material Adverse Effect or be taken into account in determining whether there has been a Material Adverse Effect to the extent such Effect arises out of or results from: (i) adverse economic or business conditions, or adverse conditions in the securities, financial or credit markets, in the United States or in other locations in which the Acquired Companies have material operations, except to the extent such adverse conditions have a disproportionately adverse effect on the Acquired Companies, taken as a whole, as compared to the other companies in the engineering and environmental services industry; (ii) adverse economic or business conditions, or adverse conditions in the securities, financial or credit markets, that generally affect the engineering and environmental services industry, except to the extent such adverse conditions have a disproportionately adverse effect on the Acquired Companies, taken as a whole, as compared to the other companies in the engineering and environmental services industry; (iii) changes after the date of the Agreement in Laws or other legal or regulatory conditions or changes after the date of the Agreement in GAAP or other accounting standards (or the enforcement or interpretation thereof), except in each case to the extent such changes have a disproportionately adverse effect on the Acquired Companies, taken as a whole, as compared to the other companies in the engineering and environmental services industry; (iv) changes in political conditions in the U.S. or any other country in the world, or acts of war, sabotage or terrorism in the U.S. or in other locations in which the Acquired Companies have operations, except in each case to the extent such changes or acts have a disproportionately adverse effect on the Acquired Companies, taken as a whole, as compared to any of the other companies in the engineering and environmental services industry; (v) acts of God, natural disasters, weather conditions or other calamities or force majeure events occurring after the date of the Agreement, except in each case to the extent such events or conditions have a disproportionately adverse effect on any of the Acquired Companies, taken as a whole, as compared to the other companies in the engineering and environmental services industry; (vi) changes in the market price or trading volume of the shares of Company Common Stock on the NASDAQ (it being understood, however, that the facts or circumstances giving rise to any such change in the market price or trading volume may be taken into account in determining whether a Material Adverse Effect has occurred except to the extent such facts or circumstances are otherwise excepted by this definition); (vii) the execution and delivery of this Agreement, the public disclosure of this Agreement or the Contemplated Transactions or the consummation of the Contemplated Transactions; (viii) the identity of, or the effects of any facts or circumstances relating to, Parent or its Affiliates, (ix) compliance with the terms of, or any taking of any action required by, this Agreement or the failure to take any action prohibited by this Agreement; (x) any failure by the Acquired Companies to meet internal or published (including by third parties) estimates, projections or expectations of the Acquired Companies’ revenues, earnings or other performance (it being understood, however, that the facts or circumstances giving rise to any such failure may be taken into account in determining whether a Material Adverse Effect has occurred except to the extent such facts or circumstances are otherwise excepted by this definition); or (xi) losses of customers, suppliers, distributors or other business partners or employees arising out of or resulting from the announcement or pendency of the Agreement.

“Material Contract” has the meaning assigned to such term in Section 2.10(a) of the Agreement.

“Maximum Premium” has the meaning assigned to such term in Section 5.4(c) of the Agreement.

“Merger” has the meaning assigned to such term in the recitals of the Agreement.

“Merger Consideration” means the cash consideration that a holder of shares of Company Common Stock is entitled to receive in exchange for such shares of Company Common Stock pursuant to Section 1.5 of the Agreement, to the extent that such shares are not Dissenting Shares with appraisal rights perfected in accordance with the NYBCL.

“Merger Sub” has the meaning assigned to such term in the preamble to the Agreement.

“NASDAQ” means the Nasdaq Stock Market.

“NISPOM” has the meaning assigned to such term in Section 2.23 of the Agreement.

“No-Shop Period Start Date” has the meaning assigned to such term in Section 4.3(a) of the Agreement

“NYBCL” means the New York Business Corporation Law.

“OFAC” means the Office of Foreign Assets Control of the U.S. Department of the Treasury.

“Order” means any order, writ, injunction, judgment or decree of any Governmental Body.

“Outside Date” has the meaning assigned to such term in Section 8.1(b) of the Agreement.

“Owned Real Property” has the meaning assigned to such term in Section 2.8(a) of the Agreement.

“Parent” has the meaning assigned to such term in the preamble to the Agreement.

“Paying Agent” has the meaning assigned to such term in Section 1.7(a) of the Agreement.

“Payment Fund” has the meaning assigned to such term in Section 1.7(a) of the Agreement.

“Permitted Encumbrance” means any of the following: (a) liens for Taxes or governmental assessments, charges or claims of payment not yet due and payable, due but not delinquent or that are being contested in good faith by appropriate proceeding (provided that, in each case, adequate reserves have been maintained to the extent required by GAAP or similar accounting policy); (b) Encumbrances imposed by Laws, such as materialmen’s, mechanics’, carriers’, workmen’s and repairmen’s liens and other similar liens arising in the ordinary course of business; (c) Encumbrances arising under original purchase price conditional sales contracts and equipment leases with third parties entered into in the ordinary course of business; (d) the effect of zoning, entitlement, building and land use ordinances, codes and regulations imposed by any Governmental Body that are not violated by the current use and operation of the Owned Real Property or the Leased Real Property; (e) customary covenants, defects of title, easements, rights of way, restrictions and other similar non-monetary Encumbrances affecting real property that are disclosed in publicly recorded documents and that, individually or in the aggregate, do not interfere in any material respect with or otherwise impair in any material respect the use, occupancy, value or marketability of title of the property subject thereto; (f) pledges or deposits arising in the ordinary course of business to secure obligations under workers’ compensation laws or similar legislation or to secure public or statutory obligations; (g) minor liens (other than liens securing indebtedness for borrowed money) that have arisen in the ordinary course of business and that do not, individually or in the aggregate, materially adversely affect the value of or the use of such property for its current and anticipated purposes; and (h) any other Encumbrances that are not, individually or in the aggregate, material to the business of the Acquired Companies or that will be released on or prior to the Closing.

“Person” means any individual, Entity or Governmental Body.

“Pre-Closing Period” has the meaning assigned to such term in Section 1.5(c) of the Agreement.

“Price Per Share” has the meaning assigned to such term in Section 1.5(a)(ii) of the Agreement.

“Prime Rate” means the rate of interest quoted in the print edition of The Wall Street Journal, “Money Rates” section, as the prime rate, as in effect from time to time.

“Proprietary Software” has the meaning assigned to such term in Section 2.9(f) of the Agreement.

“Protected Information” means any information that: (a) relates to or is capable of being linked to an identified or identifiable individual or device used by an individual or (b) is governed, regulated or protected by any Information Privacy and Security Law.

“Proxy Statement” means the proxy statement to be sent to the Company’s stockholders in connection with the Company Stockholders Meeting.

“Recommendation Change Notice” has the meaning assigned to such term in Section 5.2(d)(ii) of the Agreement.

“Registered Company IP” has the meaning assigned to such term in Section 2.9(a) of the Agreement.

“Registered IP” means all Intellectual Property Rights that are registered, filed or issued with, by or under the authority of any Governmental Body, including all Patents, registered Copyrights and registered trademarks and all applications for any of the foregoing.

“Release” means any emission, spill, seepage, pouring, emptying, dumping, leaking, leaching, discharge, injection, pumping, disposal, migration, or release of Hazardous Materials.

“Representatives” means, when used with respect to any Person, the directors, officers, other employees, agents, attorneys, consultants, accountants, investment bankers and other advisors and representatives of such Person.

“Required Company Stockholder Vote” has the meaning assigned to such term in Section 2.22 of the Agreement.

“Restricted Share Merger Consideration” has the meaning assigned to such term in Section 1.5(b) of the Agreement.

“Restructuring” has the meaning assigned to such term in Section 5.14 of the Agreement.

“Sanctions” has the meaning assigned to such term in Section 1.5(b) of the Agreement.

“Sarbanes-Oxley Act” means the Sarbanes-Oxley Act of 2002, as it may be amended from time to time.

“SEC” means the United States Securities and Exchange Commission.

“Second Outside Date” has the meaning assigned to such term in Section 8.1(b) of the Agreement.

“Securities Act” means the Securities Act of 1933, as amended.

“Sexual Misconduct Allegation” has the meaning assigned to such term in Section 2.17(e) of the Agreement.

“Special Dividend” has the meaning assigned to such term in Section 5.12 of the Agreement.

“Special Dividend Payment Date” has the meaning assigned to such term in Section 5.12 of the Agreement.

“Special Dividend Record Date” has the meaning assigned to such term in Section 5.12 of the Agreement.

A “Specified Circumstance” shall be deemed to exist if any of the conditions set forth in Sections 6.5 or 7.5 is not satisfied and has not been waived.

“Specified Governmental Body” means any Governmental Body that has actual jurisdiction over (a) the Company, Parent or Merger Sub, (b) any business of any Acquired Company that is material to the Acquired Companies, taken as a whole, or (c) any business of Parent or any of its Subsidiaries that is material to Parent and its Subsidiaries, taken as a whole.  For the avoidance of doubt, any Person exercising authority under the DPA, including the President of the United States, shall be deemed a “Specified Governmental Body.”

“Specified Representations” has the meaning assigned to such term in Section 6.1 of the Agreement.

“Stockholders Agreement” means the Stockholders Agreement, dated as of May 12, 1970, by and among Gerhard J. Neumaier, Frank F. Silvestro, Ronald L. Frank and Gerald A. Strobel, as amended on January 24, 2011.

“Stockholder Litigation” has the meaning assigned to such term in Section 5.10.

An Entity shall be deemed to be a “Subsidiary” of another Person if such Person directly or indirectly owns or purports to own, beneficially or of record: (a) an amount of voting securities of other interests in such Entity that is sufficient to enable such Person to elect at least a majority of the members of such Entity’s board of directors or other governing body; or (b) at least 50% of the outstanding equity, voting or financial interests in such Entity; provided that, without limiting the foregoing, the term “Subsidiary” of the Company shall include GAC.

“Superior Offer” means a bona fide, written offer by a third party to purchase, in exchange for consideration consisting exclusively of cash or securities listed on a US national stock exchange or a combination thereof, substantially all of the outstanding shares of Company Common Stock, that: (a) was not obtained or made as a result of a material breach of Sections 4.3 or 5.2 of the Agreement, (b) is not subject to a financing contingency, and (c) constitutes an offer that the Company’s board of directors determines in good faith, after having taken into account the advice of an independent financial and the Company’s outside legal counsel and taking into account the likelihood and timing of consummation of the transaction contemplated by such offer, to be more favorable from a financial point of view to the Company’s stockholders than the Merger, including the Special Dividend.

“Support Agreement” has the meaning assigned to such term in the recitals of the Agreement.

“Surviving Corporation” has the meaning assigned to such term in Section 1.1 of the Agreement.

“Takeover Statute” has the meaning assigned to such term in Section 2.21 of the Agreement.

“Tax” means any federal, state, local or foreign tax (including any income tax, franchise tax, capital gains tax, gross receipts tax, value-added tax, surtax, estimated tax, unemployment tax, national health insurance tax, excise tax, ad valorem tax, transfer tax, stamp tax, sales tax, use tax, property tax, business tax, withholding tax or payroll tax), levy, assessment, tariff, duty (including any customs duty), deficiency or fee, and any related charge or amount (including any fine, penalty or interest), imposed by any Governmental Body.  For purposes of this Agreement, “Tax” also includes any Liability for taxes as a transferee, successor or by contract.

“Taxing Authority” means any Governmental Body having jurisdiction with respect to a Tax.

“Tax Return” means any return (including any information return), report, statement, declaration, estimate, schedule, or other document or information, and any amendment of the foregoing, required to be filed with, any Governmental Body with respect to any Tax.

“Termination Fee” has the meaning assigned to such term in Section 8.3(i) of the Agreement.

“Transaction Expenses” has the meaning assigned to such term in Section 5.12 of the Agreement.

A “Triggering Event” shall be deemed to have occurred if: (a) the Company’s board of directors or any committee thereof shall have: (i) withdrawn the Company Board Recommendation; (ii) modified the Company Board Recommendation in a manner adverse to Parent; or (iii) taken, authorized or publicly proposed any of the actions referred to in Section 5.2(c) of the Agreement; (b) the Company shall have failed to include the Company Board Recommendation in the Proxy Statement; (c) a tender or exchange offer relating to 20% or more of the shares of Company Common Stock shall have been commenced and the Company shall not have sent to its securityholders, within 10 Business Days after the commencement of such tender or exchange offer (or, if earlier, prior to the Company Stockholders Meeting), a statement disclosing that the Company recommends rejection of such tender or exchange offer and reaffirming the Company Board Recommendation; or (d) an Acquisition Proposal shall have been publicly announced, and the Company shall have failed to issue a press release that reaffirms the Company Board Recommendation within 10 Business Days (or, if earlier, prior to the Company Stockholders Meeting) after such Acquisition Proposal is publicly announced.

“U.S. Export and Import Law” means any U.S. Law regulating exports, re-export, deemed (re)export, transfer or imports to or from the United States of goods, services, software or technical data from the United States, including the United States Export Control Reform Act of 2018, the Export Administration Regulations, the Arms Export Control Act, ITAR, the economic sanctions laws, regulations and executive orders administered by OFAC, the Tariff Act of 1930 and the Trade Act of 1974.

“Uncertificated Shares” has the meaning assigned to such term in Section 1.6 of the Agreement.

“WARN Act” has the meaning assigned to such term in Section 2.17(d) of the Agreement.