Agreement and Plan of Merger, dated August 8, 2024

Section 5.1       Company Conduct of Business Prior to the Effective Time. Except as expressly contemplated by this Agreement, during the period from the Execution Date to the Closing or, in the event this Agreement is terminated earlier in accordance with Article VII, then the date of such termination (the “Interim Period”), unless Parent otherwise agrees in writing, the Company shall, and shall cause the Company Subsidiaries to, conduct its business in the ordinary course consistent with past practice and in material compliance with all applicable Laws and use reasonable best efforts to (i) preserve intact its present business organization, operations, goodwill and assets, including its Leased Real Property, Personal Property and Contracts, (ii) maintain in effect all necessary and material licenses, Permits, consents, franchises, approvals, and authorizations, (iii) maintain its relationships with its employees, customers, lenders, suppliers, vendors, licensors, licensees, Governmental Entities and others having material business or regulatory relationships with the Company or any Company Subsidiary, and (iv) keep and maintain the records of the Company and Company Subsidiaries in the ordinary course consistent with past practice. Without limitation of any provisions of this Section 5.1, nothing in this Agreement shall, directly or indirectly, give any Party control over any other Party’s operations, business, or decision-making before the Closing, and control over all such matters shall remain vested in the relevant Party, subject to the terms and conditions of this Agreement. In addition to and without limiting the generality of the foregoing, except (A) as listed on Section 5.1 of the Company Disclosure Letter, (B) as otherwise required by this Agreement, (C) as required by Law, from the date hereof until the earlier of the Closing or the termination of this Agreement in accordance with Article VII, without the prior written consent of Parent, the Company shall not, and shall not permit any Company Subsidiary to:

(b)         make, declare, set aside or pay any stockholder dividend or other distribution, except for any dividend or distribution by a wholly owned Company Subsidiary to the Company or another wholly owned Company Subsidiary;

(c)         merge or consolidate with any other Person, liquidate, dissolve, wind-up or adopt a plan of complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization;

(d)        make any acquisition of (whether by merger, consolidation, acquisition of stock, acquisition of all or substantially all of the assets, formation of a joint venture or otherwise), or make any investment in any interest in, any Person or division thereof or any property or assets of any Person, in each case except inventory, raw materials, equipment, spare parts and other business supplies, in each case, in the ordinary course of business;

(e)         sell, lease, license, encumber, subject to a Lien (other than a Permitted Lien) or otherwise surrender, relinquish, dispose of, transfer, swap, exchange, abandon, allow to lapse or expire any assets or property of the Company or any Company Subsidiary, other than (i) disposals of assets or properties in the ordinary course of business consistent with past practice having a fair market value in an amount not in excess of $100,000 in the aggregate or (ii) disposals of any assets or property between or among (A) the Company and another wholly owned Company Subsidiary and (B) any wholly owned Company Subsidiary and another wholly owned Company Subsidiary;

(f)         (i) issue, sell, grant, pledge or otherwise encumber any shares of its capital stock or other securities (including any options, warrants, Company RSUs, Company PSUs or any similar security exercisable for, or convertible into, such capital stock or other security) other than Permitted Liens or enter into any amendment of any term of any of its outstanding securities, (ii) adjust, split, reverse split, combine or reclassify any shares of capital stock or any other equity interests of the Company or any Company Subsidiary or (iii) purchase or redeem any shares of capital stock or any other equity interests of the Company or any Company Subsidiary or any rights, warrants or options to acquire any such shares or interests, other than (A) any such purchases or redemptions by a wholly owned Company Subsidiary with respect to such Company Subsidiary’s own capital stock or other equity interests or (B) in connection with the vesting of Company RSUs or Company PSUs described in Section 3.2(b) of the Company Disclosure Letter (including in connection with any required withholding Taxes related to such exercise or vesting);

(g)        other than in connection with the payoff of the Lind Note, (i) incur, guarantee, endorse or assume or otherwise become liable for (whether directly, contingently or otherwise) any Indebtedness, (ii) enter into financial swaps, futures or options involving an interest rate, foreign exchange or commodity or (iii) issue or sell any debt securities or any rights to acquire any debt securities, or make any loans, advances or capital contributions to, or investments in, any Person;

(h)        enter into, amend or modify any collective bargaining agreement or other agreement with a labor union, works council or similar organization;

(i)         except as required pursuant to the terms of any Company Benefit Plan in effect as of the date hereof, or as otherwise required by applicable Law, (A) grant or provide, or commit to grant or provide, any bonuses, incentive compensation, severance or termination payments or transaction or change of control bonuses or benefits to any current or former director, officer, employee, consultant or independent contractor of the Company or any Company Subsidiaries, (B) increase the compensation or benefits of any (x) current or former director or officer of the Company or any Company Subsidiaries, or (y) employee, consultant or independent contractor of the Company or any Company Subsidiaries, (C) establish, adopt, terminate, supplement or amend any Company Benefit Plan or any plan, program, arrangement, practice or agreement that would be a Company Benefit Plan if it were in existence on the date hereof, (D) amend the terms of any outstanding Company RSUs or Company PSUs or other Company equity or equity-based awards, (E) 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, (F) change any actuarial or other assumptions used to calculate funding obligations with respect to any Company Benefit Plan or change the manner in which contributions to such plans are made or the basis on which such contributions are determined, except as may be required by U.S. GAAP, (G) forgive or grant any loans to directors, officers, employees, consultants, or independent contractors of the Company or any Company Subsidiaries, or (H) hire or terminate (other than for cause) any (x) director or officer of the Company or any Company Subsidiary or (y) any employee, consultant or independent contractor of the Company or any Company Subsidiaries, other than employees, consultants or independent contractors hired in the ordinary course of business with an annual base salary or fee that is no greater than $150,000;

(j)        materially change any historical working capital practice, including accelerating any collections of cash or accounts receivables or deferring or delaying accounts payable;

(k)         change any method of accounting or accounting principles or practices followed by the Company or any Company Subsidiary, except for any such change required by a change in U.S. GAAP or applicable Law;

(l)          (A) make, change or revoke any Tax election; (B) change any material method of Tax accounting; (C) change any Tax accounting period; (D) file any material amended Tax Return, (E) settle or compromise any Proceeding, audit, examination or investigation relating to Taxes; (F) enter into any closing agreement within the meaning of Section 7121 of the Code (or any similar provision of state, local or foreign Law) with respect to any amount of Tax (G) surrender or allow to expire any claim for a refund of a material amount of Taxes; or (H) consent to any extension or waiver of any limitation period with respect to any material claim or assessment for Taxes;

(m)        settle, release, waive or compromise any existing or pending legal Proceeding, unless such settlement, release, waiver or compromise (i) involves solely monetary payments that do not exceed $100,000, (ii) does not impose any material restriction on the business of the Company or any Company Subsidiary, (iii) does not involve an admission of guilt or liability by the Company or Company Subsidiary, (iv) does not relate to any litigation by the Company’s stockholders in connection with this Agreement or the Transactions, and (v) is not with respect to a Proceeding in which a Governmental Entity is adverse to the Company or any Company Subsidiary;

(n)        disclose or permit to disclose any Trade Secrets or confidential information of the Company and the Company Subsidiaries to any Person, other than in the ordinary course of business consistent with past practice to Persons who are under a contractual obligation to maintain the confidentiality of such information;

(o)         (A) terminate, modify in any material respect, cancel or fail to renew, other than in the ordinary course of business, any insurance Policy set forth on Section 3.20 of the Company Disclosure Letter without replacing such coverage with a comparable amount of insurance coverage to the extent available on commercially reasonable terms;

(p)          (A) terminate, suspend, fail to renew or allow to lapse any of the Company’s or Company Subsidiaries’ material Permits or (B) amend any material Permit if doing so would reasonably be expected to be materially adverse to the Company and the Company Subsidiaries, taken as a whole;

(q)         (i) enter into any new Contract that would have been a Company Material Contract if it had been entered into prior to the date of this Agreement (other than purchase orders or service orders entered into in the ordinary course of business) or (ii) amend, supplement, cancel or terminate any Company Material Contract or waive or fail to enforce any of the terms thereof that are for the benefit of the Company or any Company Subsidiary;

(r)          enter into any new line of business outside its existing lines of business as of the date hereof;

(s)         enter into, amend or modify the terms of any Company Affiliate Contract or any Contract with any Person covered under Item 404 of Regulation S-K under the Securities Act or make any payment to any Person covered under Item 404 of Regulation S-K under the Securities Act (other than payments, transactions or benefits pursuant to Contracts of Company Benefit Plans made available to Parent prior to the date hereof), or otherwise permitted by Section 5.1(i);

(t)         other than in connection with the payoff of the Lind Note, cancel any material Indebtedness or material claim or waive any material claim or rights of the Company or any of the Company Subsidiaries;

(u)         make or authorize any new capital expenditures other than capital expenditures to the extent expressly set forth on Section 5.1(u) of the Company Disclosure Letter; or

(v)          agree or commit to do any of the foregoing.

Section 5.2           No Solicitation.

(a)          As of the Execution Date, the Company shall immediately cease, and shall cause the Company Subsidiaries to cease, and shall use its reasonable best efforts to cause its and their Representatives to immediately cease and cause to be terminated, any activities, solicitations, discussions or negotiations with any Person that may be ongoing with respect to a Takeover Proposal. The Company also agrees that it will promptly (and in any event within two (2) Business Days of the date hereof) (i) request each Person (other than Parent, Merger Sub and their respective Representatives and designees) that has prior to the date hereof executed a confidentiality agreement in connection with its consideration of acquiring the Company to return or destroy all confidential information furnished to such Person or any of its Affiliates or Representatives by or on behalf of it or any of its Subsidiaries prior to the date hereof and (ii) terminate any access to any data room (electronic or otherwise) previously provided to any such Person, its Affiliates or its or their respective Representatives, including but not limited to access to the Data Room. During the Interim Period, the Company shall not, nor shall it permit any Company Subsidiary to, nor shall it authorize or permit, and shall use its reasonable best efforts to cause its and their Representatives not to, directly or indirectly, (i) solicit, initiate, or knowingly encourage or knowingly facilitate (including by way of furnishing information), or take any other action designed to facilitate, any expression of interest, inquiry or the making of any offer or proposal which constitutes, or may reasonably be expected to lead to, any Takeover Proposal, (ii) execute or enter into any letter of intent, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement, or other commitment, agreement, arrangement, or understanding relating to any Takeover Proposal (other than an Acceptable Confidentiality Agreement), (iii) enter into, continue, encourage or otherwise participate or engage in any discussions or negotiations regarding any Takeover Proposal, (iv) (A) provide or afford access to its properties, assets, books and records, or personnel, or (B) furnish to any Person any material non-public information in connection with, or relating to, any Takeover Proposal, or the making thereof, or any inquiry or proposal with respect thereto, (v) approve, endorse or recommend, or propose publicly to approve, endorse or recommend, any proposal that constitutes a Takeover Proposal, (vi) fail to enforce or grant any waiver or release under any “standstill” or similar agreement with respect to any class of securities of the Company or any of the Company Subsidiaries, or confidentiality agreement to the extent that such provision prohibits or purports to prohibit a confidential proposal being made to the Company Board unless the Company Board determines in good faith (after consultation with its outside legal advisors) that the failure to do so would be inconsistent with its fiduciaries duties pursuant to applicable Law, or (vii) authorize, agree or commit to do any of the foregoing.

(b)         Notwithstanding the foregoing Section 5.2(a), if, prior to receipt of the Company Stockholder Approval, the Company receives a written, unsolicited, bona fide Takeover Proposal that did not arise, directly or indirectly, from a material breach of this Section 5.2, and the Company Board (or a committee thereof) determines in good faith, after consultation with outside legal counsel and financial advisors, based on information then available, that (1) such Takeover Proposal either constitutes a Superior Proposal or is reasonably expected to lead to a Superior Proposal, and (2) a failure to take action with respect to such Takeover Proposal would be inconsistent with its fiduciary duties (it being understood that, for all purposes of this Agreement, references to fiduciary duties of the Company Board refers to the duties of directors) to the Company and its stockholders under applicable Law, then the Company may, in response to such Takeover Proposal, and subject to compliance with Section 5.2(e), (A) furnish information with respect to the Company to the party making such Takeover Proposal pursuant to a confidentiality agreement that contains provisions not less favorable to the Company in all material respects than those contained in the Confidentiality Agreement (an “Acceptable Confidentiality Agreement”); provided, that a copy of all such information not previously provided to Parent (or its Representatives) is provided to Parent as promptly as reasonably practicable (but in any event within forty-eight (48) hours) after such information has been furnished to such party (or its Representatives), and (B) engage in discussions or negotiations with such party regarding such Takeover Proposal or Superior Proposal; provided that, notwithstanding anything to the contrary in this Section 5.2, if the Company receives a Takeover Proposal or any inquiry, proposal or offer with respect to, or that could reasonably be expected to lead to, a Takeover Proposal, the Company may seek clarification of the terms and conditions thereof so as to determine whether such Takeover Proposal or any inquiry, proposal or offer with respect to, or that could reasonably be expected to lead, to a Takeover Proposal constitutes a Superior Proposal or is reasonably expected to lead to a Superior Proposal. It is agreed that any material violation of the restrictions set forth in this Section 5.2 by any officers, directors or employees or any Affiliate, investment banker, financial advisor, attorney, accountant, or other Representative of the Company or any of the Company Subsidiaries shall be deemed to be a breach of this Section 5.2 by the Company.

(c)        Except as expressly permitted in this Section 5.2(c), neither the Company Board nor any committee thereof shall (i) (A) withhold, withdraw, or modify or qualify, or propose publicly to withhold, withdraw, or modify or qualify the Company Recommendation, (B) take any other action or make any other statement in connection with the Transactions inconsistent with the Company Recommendation, (C) approve, determine to be advisable, or recommend, or propose publicly to approve, determine to be advisable, or recommend, any Takeover Proposal, (D) take any formal action or make any recommendation in connection with a tender or exchange offer, other than a recommendation against such offer or a “stop, look and listen” communication by the Company Board to the Company’s stockholders pursuant to Rule 14d-9(f) promulgated under the Exchange Act (or any substantially similar communication), or (E) fail to include the Company Recommendation in the Proxy Statement (any action in this Section 5.2(c) being referred to as an “Adverse Recommendation Change”), or (ii) adopt or approve, or publicly propose to adopt or approve, cause, authorize or allow the Company or any Company Subsidiary to execute or enter into, any letter of intent, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement, option agreement, joint venture agreement, partnership agreement, other agreement relating to any Takeover Proposal or other similar agreement, arrangement or understanding other than an Acceptable Confidentiality Agreement in accordance with Section 5.2(b) (each, an “Alternative Transaction Agreement”) (A) constituting or that could reasonably be expected to lead to or otherwise relates to any Takeover Proposal or (B) requiring it to abandon, terminate or fail to consummate the Merger and the other Transactions contemplated by this Agreement.

(d)         Notwithstanding the foregoing, prior to receipt of the Company Stockholder Approval, the Company Board may (in each case, subject to compliance with this Section 5.2(c) and to compliance with Section 5.2(a) and Section 5.2(e)) effect an Adverse Recommendation Change and, subject to compliance with Section 7.1(c)(i), terminate this Agreement in order to enter into a binding agreement for a Superior Proposal if it pays, or causes to be paid, to Parent the Company Termination Fee payable pursuant to Section 7.3(c) and: (A) a written, unsolicited, bona-fide Takeover Proposal is or has been made to the Company by a third party that was not related to or arising from, directly or indirectly, a breach of this Section 5.2 and such Takeover Proposal is not withdrawn; (B) the Company Board determines in good faith, after consultation with the Company’s outside financial advisors and outside legal counsel, that such Takeover Proposal constitutes a Superior Proposal; (C) the Company Board determines in good faith, after consultation with the Company’s outside legal counsel, that the failure to make an Adverse Recommendation Change or terminate this Agreement would be inconsistent with its fiduciary duties to the Company and its stockholders under applicable Law; (D) the Company Board provides Parent at least five (5) Business Days’ prior written notice of its intention to take such action, which notice shall include the information with respect to such Superior Proposal that is specified in Section 5.2(e), as well as a copy of such Takeover Proposal; (E) during the five (5) Business Days following such written notice (or such shorter period as is specified below), the Company Board and its Representatives have negotiated in good faith with Parent (to the extent Parent wishes to negotiate) regarding any revisions to the terms of the transactions contemplated hereby proposed by Parent in response to such Superior Proposal; and (F) at the end of the five (5) Business Day period described in the foregoing clause (E) (or such shorter period as is specified below), the Company Board determines in good faith, after consultation with the Company’s (x) outside legal counsel and financial advisors (and taking into account any adjustment or modification of the terms of this Agreement proposed in writing by Parent), that the Takeover Proposal continues to be a Superior Proposal and (y) outside legal counsel, that the failure to make such Adverse Recommendation Change or terminate this Agreement would be inconsistent with the exercise by the Company Board of its fiduciary duties to the Company and its stockholders under applicable Law. Any material amendment or modification to any Superior Proposal will be deemed to be a new Takeover Proposal for purposes of this Section 5.2; provided, however, that the notice period and the period during which the Company Board and its Representatives are required to negotiate in good faith with Parent (to the extent Parent wishes to negotiate) regarding any revisions to the terms of this Agreement proposed by Parent in response to such new Takeover Proposal pursuant to clauses (D)-(F) above shall expire on the later to occur of (x) two (2) Business Days after the Company Board provides written notice of such new Takeover Proposal to Parent or (y) the end of the original four (4) Business Day period described in clauses (D)-(F) above.

(e)         In addition to the obligations of the Company set forth in Section 5.2(a), Section 5.2(b), and Section 5.2(c), the Company shall promptly, and in any event no later than twenty-four (24) hours after it receives any Takeover Proposal, advise Parent orally and in writing of any request for confidential information in connection with a Takeover Proposal or with respect to any Takeover Proposal, the material terms and conditions of such request or Takeover Proposal, and shall keep Parent promptly advised of all changes to the material terms of any such Takeover Proposal. The Company shall, prior to or concurrently with the time it is provided to any third Persons, provide to Parent any non-public information concerning the Company and the Company Subsidiaries that the Company provides (including through its Representatives) to any third Person in connection with any Takeover Proposal after the date hereof that was not previously provided to Parent. The Company shall promptly (but in no event later than forty-eight (48) hours after receipt) provide to Parent unredacted copies of all material correspondence and written materials (whether or not electronic) sent or provided to the Company or any of its Subsidiaries that describes any terms or conditions of such Takeover Proposal, including any proposed transaction agreements (along with all schedules and exhibits thereto and any financing commitments related thereto).

(f)         Nothing contained in this Section 5.2 shall prohibit the Company from (i) taking and disclosing to the stockholders of the Company a position contemplated by Rule 14e-2(a), Rule 14d-9, or Item 1012(a) of Regulation M-A promulgated under the Exchange Act, (ii) making any disclosure to the stockholders of the Company that is required by applicable Law, or (iii) making any “stop, look and listen” communication pursuant to Rule 14d-9(f) promulgated under the Exchange Act; provided that any such action that would otherwise constitute an Adverse Recommendation Change shall be made only in accordance with Section 5.2(c) (it being understood and agreed that any such communication that expressly reaffirms the Company Recommendation shall be deemed not to be an Adverse Recommendation Change).

(g)       The Company agrees that it will take the necessary steps promptly to inform its Company Subsidiaries and its officers, directors, investment bankers, consultants, attorneys, accountants, and other representatives of the obligations undertaken in this Section 5.2.

Section 5.3           Proxy Statement.

(a)         As promptly as reasonably practicable (and in any event within twenty (20) Business Days) following the date hereof, the Company shall, with the reasonable assistance of Parent, prepare, and the Company shall file with the SEC, a proxy statement relating to the adoption of this Agreement by the stockholders of the Company (as amended or supplemented from time to time, the “Proxy Statement”). The Proxy Statement shall include the written opinion of Ankura Capital Advisors, LLC, dated August 7, 2024 that as of the date of such opinion and based on and subject to the various assumptions made, procedures followed, matters considered and qualifications and limitations on the review undertaken in preparing such opinion as set forth therein, the Merger Consideration is fair, from a financial point of view, to the holders of the Shares (other than Excluded Shares). The Company shall include the Company Recommendation in the Proxy Statement. Parent and the Company shall reasonably cooperate with one another in connection with the preparation of the Proxy Statement and Parent shall furnish all information concerning Parent and Merger Sub as the Company may reasonably request in connection with the preparation of the Proxy Statement that is required by the Exchange Act or other applicable Law to be set forth in the Proxy Statement. The Company shall use reasonable best efforts to resolve all SEC comments with respect to the Proxy Statement and have the Proxy Statement cleared by the SEC as promptly as reasonably practicable after such filing. The Company shall cause the Proxy Statement to be mailed to the stockholders of the Company as of the record date established for the Company Stockholders’ Meeting as promptly as reasonably practicable (but in any event no more than ten (10) Business Days) after the Proxy Statement is cleared by the SEC.

(b)         Parent shall provide to the Company, as necessary, an amendment or supplement to Company of the information relating to Parent or Merger Sub supplied by it in writing specifically for inclusion in the Proxy Statement, at the time of the mailing of the Proxy Statement or any amendments or supplements thereto, and at the time of the Company Stockholders’ Meeting, to the extent necessary so that such information, as so amended or supplemented, does not contain any misstatement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.

(c)          Assuming Parent’s compliance with its obligations pursuant to Section 5.3(b), the Company shall cause the Proxy Statement, at the time of the mailing of the Proxy Statement or any amendments or supplements thereto, and at the time of the Company Stockholders’ Meeting, (i) not to contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading and (ii) to comply as to form and substance in all material respects with the Exchange Act.

(d)         The Company shall promptly notify Parent of the receipt of any comments of the SEC with respect to the Proxy Statement and of any request by the SEC for any amendment or supplement thereto or for additional information and shall promptly provide Parent with copies of all correspondence between the Company and the SEC with respect to the Proxy Statement (including a summary of any oral conversations). The Company, Parent and Merger Sub shall each use their reasonable best efforts to promptly provide responses to the SEC with respect to all comments of the SEC received on the Proxy Statement. All filings by the Company with the SEC and all mailings to the stockholders of the Company in connection with the Merger and the other Transactions contemplated hereby, including the Proxy Statement and any amendment or supplement thereto, and any responses to any comments from the SEC with respect thereto, shall be subject to the reasonable prior review and comment of Parent and its counsel and the Company shall consider any comments from Parent in good faith.

(e)         If at any time prior to the Effective Time any information relating to the Company, Parent or Merger Sub, or any of their respective Affiliates, directors or officers, is discovered by the Company, Parent or Merger Sub, which should be set forth in an amendment or supplement to the Proxy Statement so that the Proxy Statement would not include any misstatement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, the Party which discovers such information shall promptly notify the other Parties and an appropriate amendment or supplement describing such information shall be prepared and promptly filed with the SEC and, to the extent required by applicable Law, disseminated to the stockholders of the Company, in each case, by the Company (with the reasonable assistance of Parent).

Section 5.4          Company Stockholders’ Meeting. The Company shall, in accordance with its Constituent Documents and applicable Law, promptly take all action required under the DGCL, the Company’s Constituent Documents and the applicable requirements of the NASDAQ to duly call, give notice of, convene and hold as promptly as reasonably practicable following the date upon which the Proxy Statement is cleared by the SEC, a meeting of the stockholders of the Company (the “Company Stockholders’ Meeting”) for the purpose of seeking the Company Stockholder Approval, with the record date and meeting date being selected after reasonable consultation with Parent; and, unless there has been an Adverse Recommendation Change in accordance with Section 5.3, shall (a) recommend adoption of this Agreement and include in the Proxy Statement such recommendation, (b) reaffirm the Company Recommendation (which Company Recommendation shall, for avoidance of doubt, be in respect of this Agreement and the Merger, as may be modified pursuant to any changes to the terms of this Agreement offered in writing by Parent pursuant to, and in accordance with Section 5.2) within five (5) Business Days after a request therefor by Parent following the date on which any Takeover Proposal or material modification thereto is received by the Company or is published, sent or communicated to the Company’s stockholders (or, if the Company Stockholders’ Meeting is scheduled to be held within five (5) Business Days, within one (1) Business Day, if possible, before the Company Stockholders’ Meeting), which request may not be made more than two times in respect of any specific Takeover Proposal, and (c) use reasonable best efforts to obtain the Company Stockholder Approval including soliciting such adoption. The Company may postpone, recess or adjourn the Company Stockholders’ Meeting (i) with the written consent of Parent, (ii) if as of the time for which the Company Stockholders’ Meeting is originally scheduled (as set forth in the Proxy Statement) the Company is unable to obtain a quorum of its stockholders at the Company Stockholders’ Meeting necessary to conduct the business of the Company Stockholders’ Meeting or if there are insufficient Shares represented (either in person or by proxy) to obtain the Company Stockholder Approval, or (iii) to allow additional time for the filing and distribution of any amended or supplemental disclosure which the Company Board has determined in good faith, after consultation with outside legal counsel, is necessary under Law and for such amended or supplemental disclosure to be reviewed by the stockholders of the Company prior to the Company Stockholders’ Meeting. Notwithstanding the foregoing, without the prior written consent of Parent, the Company Stockholders’ Meeting will not be postponed or adjourned (A) by more than ten (10) calendar days at a time without the prior written consent (which consent shall not be unreasonably withheld or delayed) of Parent by or (B) more than thirty (30) calendar days after the date on which the Company Stockholders’ Meeting was (or was required to be) originally scheduled. In no event will the record date of the Company Stockholders’ Meeting be changed without Parent’s prior written consent (which consent shall not be unreasonably withheld or delayed), unless required by applicable Law.

Section 5.5         Publicity. The Company and Parent agree that the initial press release to be issued with respect to the execution and delivery of this Agreement shall be in a form agreed to by the Parties and that the Parties shall consult with each other prior to issuing any press release or making any public announcement with respect to this Agreement and the Transactions contemplated hereby and shall not issue any such press release or make any such public announcement without the prior consent of the other Party (which shall not be unreasonably withheld, delayed or conditioned) and shall give each other the opportunity to review and comment upon such press releases or public announcements; provided that a Party may, without the prior consent of the other Party, issue such press release or make such public statement (a) so long as such statements are consistent with previous public statements made jointly by or otherwise agreed between the Company and Parent, (b) after prior consultation, to the extent practicable in the circumstances, to the extent required by applicable Law or the applicable rules of rules of the NASDAQ (or any other securities market) or (c) in any case in which such disclosure is made in connection with a dispute between the Parties hereto regarding this Agreement or the Transactions contemplated hereby.  Notwithstanding the foregoing, Parent, Merger Sub and their respective Affiliates, without consulting with the Company, may provide, in the ordinary course of business, confidential communications regarding this Agreement and the Transactions contemplated hereby to existing or prospective general and limited partners, equity holders, members, managers and investors of such Person or any Affiliates of such Peron, in each case, who are subject to customary confidentiality restrictions.

Section 5.6          Notification of Certain Matters. Parent and the Company shall each give prompt notice to the other Party if any of the following occur after the date of this Agreement: (i) receipt of any written notice to the receiving Party from any third Person alleging that the consent or approval of such third Person is or may be required in connection with the Merger and the other Transactions and such consent could (in the good faith determination of such Party) reasonably be expected to prevent or materially delay the consummation of the Merger or the other Transactions; (ii) receipt of any notice or other communication from any Governmental Entity or the NASDAQ (or any other securities market) in connection with the Transactions; or (iii) the occurrence of an event which would or would be reasonably likely to (A) prevent or materially delay the consummation of the Transactions or (B) result in the failure of any condition to the Merger set forth in Article VI, to be satisfied.

(a)        During the Interim Period, and upon reasonable notice and subject to applicable Laws relating to the exchange of information, the Company shall afford to Parent and its Affiliates and its and their officers, directors, agents, control persons, employees, consultants, professional advisers (including attorneys, accountants, and financial advisors) (collectively, the “Representatives”), during normal business hours, reasonable access (including for the purpose of coordinating transition planning with employees) to all of its and the Company Subsidiaries’ properties, assets, books, Contracts, commitments, and records, and to its and the Company Subsidiaries’ officers, employees, accountants, counsel, and other Representatives and, during the Interim Period, the Company shall promptly make available to the Parent, subject, in the case of competitively sensitive information, to any “clean-room” arrangements agreed between the Parties, (i) a copy of each report, schedule, registration statement, and other document filed or received by it or any Company Subsidiary during such period pursuant to the requirements of federal securities Laws and (ii) all other information concerning its and the Company Subsidiaries’ businesses, assets, properties, and personnel as the Parent may reasonably request.

(b)          No investigation by Parent or its Representatives shall affect the representations, warranties, covenants, or agreements of the Company set forth herein.

(c)         This Section 5.7 shall not require the Company to permit any access, or to disclose any information, that in the reasonable, good faith judgment of the Company’s legal counsel would reasonably be expected to result in a material violation of any material Contract or Law to which the Company or any Company Subsidiaries are a party or are subject or cause any attorney-client privilege which the Company or any of its Company Subsidiaries would be entitled to assert to be undermined with respect to such information if such undermining of such privilege could in good faith judgment of the Company’s legal counsel adversely affect in any material respect the Company’s position in any pending or reasonably probable future litigation; provided, in the event the Company’s legal counsel makes such a determination, the Company shall reasonably promptly notify Parent, and the Parties shall cooperate in seeking to find a way to allow disclosure of such information, including by (i) using reasonable commercial efforts to seek consent from the applicable third party to any such material Contract with respect to the disclosures prohibited thereby, or (ii) use of a “clean-room” arrangement or other appropriate substitute arrangement to permit reasonable access or disclosure not in violation of such requirement.

(d)        Unless and until the Closing occurs, the information provided pursuant to this Section 5.7 shall be kept confidential by the recipient thereof in accordance with, and shall otherwise abide by and be subject to the terms and conditions of, the Confidentiality Agreement, except that notwithstanding the Confidentiality Agreement, the Company and Parent may disclose any of the terms, conditions, or other facts of the Merger and the other Transactions if expressly permitted by the terms of this Agreement.

Section 5.8          Efforts; Cooperation. Subject to the terms and conditions of this Agreement, each of Parent and the Company shall, and shall cause their respective Subsidiaries to use reasonable best efforts (i) to take, or cause to be taken, all actions necessary, proper or advisable to comply promptly with all Laws which may be imposed on such Party or its Subsidiaries with respect to the Transactions and, subject to the conditions set forth in Article VI hereof, to consummate the Transactions as promptly as practicable, (ii) to obtain (and to cooperate with the other Party to obtain) any consent, authorization, Order or approval of, or any exemption by, any Governmental Entity and any other third Person which is required to be obtained by Parent or the Company or any of their respective Subsidiaries in connection with the Transactions, and to comply with the terms and conditions of any such consent, authorization, order, or approval, and (iii) to cooperate with each other in connection with any filing or submission with a Governmental Entity in connection with the Transactions.

(a)          Parent agrees that all rights to exculpation, indemnification, or advancement of expenses existing as of the date of this Agreement and arising from, relating to, or otherwise in respect of, acts or omissions occurring at or prior to the Effective Time existing in favor of any current or former directors or officers of the Company or the Company Subsidiaries as provided in (A) their respective Constituent Documents or (B) any indemnification or similar agreements set forth on Section 5.9(a) of the Company Disclosure Schedule (the “Indemnification Contracts”) shall, in each case, survive the Transactions and shall continue in full force and effect in accordance with their terms, and Parent shall and shall cause the Surviving Corporation to comply therewith. For a period of no less than six (6) years from the Effective Time, Parent shall cause the Surviving Corporation to maintain in effect the exculpation, indemnification, and advancement of expenses provisions of the Company’s Constituent Documents or Indemnification Contracts, in substantially the form that is in effect as of the Closing Date, and shall not amend, repeal, or otherwise modify any such provisions in any manner that would materially adversely affect the rights thereunder of any individuals who immediately before the Effective Time were current or former directors, officers, or employees of the Company; provided, however, that all rights to exculpation, indemnification, and advancement of expenses in respect of any Proceeding pending or asserted or any claim made within such period shall continue until the final disposition of such Proceeding.

(b)          In the event that either Parent or the Surviving Corporation or any of its successors or assigns (i) consolidates with or merges into any other Person and is not the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties, rights, and other assets to any Person, then, and in each such case, Parent shall, and shall cause the Surviving Corporation to, cause proper provision to be made so that such successor or assign shall expressly assume the obligations set forth in this Section 5.9.

(c)         Prior to the Effective Time, the Company shall obtain and fully pay for, at no expense to the beneficiaries, non-cancellable “tail” or “runoff” insurance policies with a claims period of at least six (6) years from and after the Effective Time from insurance carriers with the same or better credit ratings as the Company’s current insurance carriers with respect to directors’ and officers’ liability insurance policies and fiduciary liability insurance policies (collectively, “D&O Insurance”), for the persons who are covered by the Company’s existing D&O Insurance, with terms, conditions, retentions, and levels of coverage at least as favorable to the insured individuals as the Company’s existing D&O Insurance with respect to matters existing or occurring at or prior to the Effective Time (including in connection with this Agreement or the transactions contemplated hereby); provided, however, that in no event shall Parent or the Surviving Corporation pay, or be required to pay, for such “tail” insurance policies a one-time premium in excess of 300% of the Company’s current annual premium for D&O Insurance (the “Premium Cap”); provided, further, that if the cost of such insurance coverage exceeds such amount, the Company shall obtain a policy with the greatest coverage reasonably available for a cost not exceeding such amount; provided, further, that the Company shall give Parent a reasonable opportunity to participate in the selection of such tail policy and the Company shall give reasonable and good faith consideration to any comments made by Parent with respect thereto.

(d)        The provisions of this Section 5.9 shall survive consummation of the Transactions, are intended to be for the benefit of, and will be enforceable by, each Person entitled to indemnification hereunder, together with such Persons heirs, legatees, personal representatives, legal representatives, executors, administrators, successors, and assigns, and are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have by Contract or otherwise.

(a)         At the Closing Date, Parent shall provide, or cause the Surviving Corporation to provide, to each employee of the Company and its Subsidiaries who remains employed by the Surviving Corporation and its Subsidiaries (the “Continuing Employees”) an annual rate of salary or wages that is no less favorable than the annual rate of salary or wages, as applicable, provided to such employee by the Company and the Company Subsidiaries as of immediately prior to the Effective Time.

(b)       From and after the Effective Time, Parent shall cause the Surviving Corporation and its Subsidiaries to honor all “Employment Agreements” as defined and listed in Section 3.12(a) of the Company Disclosure Letter, in accordance with their terms.

(c)          As of the Closing, Parent shall, or shall cause the Surviving Corporation, and any of its respective Company Subsidiaries or any of their respective third party insurance providers or third party administrators to, waive all limitations as to any pre-existing condition or waiting periods in its applicable welfare plans with respect to participation and coverage requirements applicable to each Continuing Employee under any welfare plans that such employees may be eligible to participate in after the Effective Time to the extent such limitation would have been waived or satisfied under the applicable welfare plan in which such Company Employee participated immediately prior to the Effective Time, and shall credit each Continuing Employee for any copayments, deductibles, offsets, or similar payments made under any employee benefit plan of the Company or any Company Subsidiary during the plan year which includes the Closing Date for purposes of satisfying any applicable copayment, deductible, offset, or similar requirements under the comparable plans of Parent, Surviving Corporation, or any of their respective Subsidiaries. In addition, as of the Effective Time, Parent shall, and shall cause the Surviving Corporation and any applicable Company Subsidiary to, give Continuing Employees full credit for purposes of eligibility, vesting, and determination of level of benefits under any employee benefit and compensation plans or arrangements maintained by Parent or an applicable Parent Subsidiary that such employees may be eligible to participate in after the Effective Time for such Continuing Employees’ service with the Company or any Company Subsidiaries to the same extent that such service was credited for purposes of any comparable employee benefit plan immediately prior to the Effective Time; provided that the foregoing shall not result in the duplication of benefits or to benefit accruals under any severance, post-retirement or other post-employment health, life or welfare benefits or pension plan.

(d)          No provision of this Section 5.10 shall be construed as a limitation on the right of Parent, or to cause any Parent Subsidiary, to amend or terminate any specific employee benefit plan that Parent or a Parent Subsidiary would otherwise have under the terms of such employee benefit plan, nor shall any provision of this Section 5.10 be construed to require the continuation of the employment of any particular Continuing Employee. The provisions of this Section 5.10 are solely for the benefit of the Parties to this Agreement, and no current or former director, officer, employee, or independent contractor or any other Person shall be a third-party beneficiary of this Section 5.10 of this Agreement, and nothing herein shall be construed as an amendment to any Company Benefit Plan or employee benefit plan of Parent or any Parent Subsidiary or other compensation or benefit plan or arrangement for any purpose.

Section 5.11        Section 16 Matters. Prior to the Effective Time, the Company Board, or an appropriate committee of non-employee directors thereof, may adopt a resolution consistent with the interpretive guidance of the SEC, taking such steps as may be required to cause any dispositions of Company Common Stock (including derivative securities with respect to Company Common Stock) resulting from the Transactions by each individual who is subject to the reporting requirements of Section 16(a) of the Exchange Act with respect to the Company, to be exempt under Rule 16b-3 promulgated under the Exchange Act, to the extent permitted by applicable Law.

Section 5.12        Security Holder Litigation. In the event that any litigation arising from or related to this Agreement or the Transactions is brought or threatened to be brought against the Company and/or its directors by security holders of the Company prior to the Effective Time (“Transaction Litigation”), the Company shall promptly notify Parent of such Transaction Litigation (but in any event within twenty-four (24) hours) and shall keep Parent reasonably informed on a current basis with respect to the status thereof, including by promptly informing Parent of all Proceedings and providing to Parent copies of all material correspondence and pleadings relating to such Transaction Litigation. The Company shall give Parent the opportunity to participate in the defense of any Transaction Litigation (and shall give due consideration to Parent’s advice with respect to the Transaction Litigation and shall provide Parent the opportunity to review and comment on all material filings or responses to be made by the Company in connection with the Transaction Litigation), and the Company shall not settle or agree to settle any Transaction Litigation without Parent’s prior written consent.

Section 5.13        NASDAQ Delisting; Deregistration. Prior to the Effective Time, the Company shall cooperate with Parent and use its reasonable best efforts to take, or cause to be taken, all actions, and do or cause to be done all things, reasonably necessary, proper or advisable on its part under applicable Laws and the rules and policies of the NASDAQ to enable the delisting by the Surviving Corporation of the Company Common Stock from NASDAQ and the deregistration of the Company Common Stock under the Exchange Act as promptly as practicable after the Effective Time, and in any event no more than ten (10) Business Days after the Effective Time.

Section 5.14       Merger Sub; Consent of Sole Member of Merger Sub. Parent and Merger Sub shall use commercially reasonable efforts to take all actions necessary to (a) cause Merger Sub to perform its obligations under this Agreement and to consummate the Merger on the terms and conditions set forth in this Agreement, and (b) ensure that, prior to the Effective Time, Merger Sub shall not conduct any business or make any investments or incur or guarantee any Indebtedness other than as specifically contemplated by this Agreement. Immediately following the execution of this Agreement (but in any event, no later than three (3) Business Days after the Execution Date), Parent, in its capacity as the sole member and manager of Merger Sub, shall duly adopt this Agreement in accordance with applicable Law and deliver to the Company evidence of its vote or action by written consent so adopting this Agreement.

Section 5.15         Financing. Parent shall use its commercially reasonable efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary, proper or advisable to consummate and obtain the Financing on the terms and subject to the conditions described in the Commitment Letter and shall not permit any amendment or modification to be made to, and replacement of all or a portion of any commitments thereof described in, or any waiver of any provisions under, the Commitment Letter without the prior written consent of the Company (which shall not be unreasonably withheld, conditioned or delayed), if such amendment, modification, replacement, or waiver (a) reduces the aggregate amount of the Financing to an amount below the amount required to consummate the Transactions, (b) imposes additional conditions or any contingencies or otherwise expands upon, amends, or otherwise modifies any of the conditions to the receipt of any portion of the Financing in a manner that would or would reasonably be expected to make any portion of the funding of the Financing (or satisfaction of the conditions to obtaining the Financing) less likely to be obtained, or (c) materially adversely impacts the ability of Parent to consummate the transactions contemplated hereby.

Section 5.16          Treatment of Indebtedness; Lien Releases; Transaction Expenses.

(a)         At least three (3) Business Days prior to the Closing Date, the Company shall deliver to Parent fully-executed payoff letters (the “Payoff Letters”) executed by the holders of Indebtedness set forth in Section 5.16(a)(i) of the Company Disclosure Letter and which such Payoff Letters shall, in each case (i) contain customary documentation providing for, upon receipt of such amounts, the automatic termination and release of all Liens (including any termination statements on Form UCC-3 or other customary releases) and be in form and substance reasonably satisfactory to Parent to evidence the full repayment and satisfaction of such Indebtedness, and (ii) provide instructions for the payment of all amounts necessary to cause the payment in full of such Indebtedness.  The Company shall and shall cause its Company Subsidiaries and direct their respective representatives to, in each case, use their reasonable best efforts to (i) make arrangements reasonably satisfactory to Parent for such holders of Indebtedness to deliver all related Lien and guarantee releases to Parent on or prior to the Closing Date, and (ii) obtain the Lien releases set forth in Section 5.16(a)(ii) of the Company Disclosure Letter, effective on or prior to the Closing Date.

(b)         The Company shall deliver to Parent, at least five (5) Business Days prior to the Closing Date, invoices from the vendors set forth in Section 5.16(b) of the Company Disclosure Letter to evidence the full payment and satisfaction of such Transaction Expenses as of the Closing, which shall in no event exceed the amounts set forth in Section 5.16(b) of the Company Disclosure Letter absent the prior written consent of Parent.

Section 6.1          Conditions to Obligations of Each Party. The respective obligations of Parent, Merger Sub, and the Company to consummate the Merger are subject to the satisfaction, at or prior to the Closing, of the following conditions (which may be waived, in whole or in part, to the extent permitted by Law, by Parent, Merger Sub, or the Company, as applicable):

(a)        Statutes and Injunctions. No Law or Order (whether temporary, preliminary, or permanent) shall have been promulgated, entered, enforced, enacted, or issued or be applicable to the Merger by any Governmental Entity that (i) prohibits, prevents, makes illegal, restrains or enjoins the consummation of the Merger or the other Transactions that is still be in effect or (ii) would prevent, materially impede or materially delay the consummation of the Merger and the other Transactions or the payment of the Merger Consideration, and no Governmental Entity shall have instituted any proceeding seeking such Laws or Orders.

(b)          Company Stockholder Approval. The Company Stockholder Approval shall have been obtained.

Section 6.2        Conditions to Obligations of the Company to Effect the Merger. The obligation of the Company to consummate the Merger is further subject to the satisfaction, at or prior to the Closing, of the following conditions (which may be waived, in whole or in part, to the extent permitted by Law, by the Company):

(a)         The representations and warranties of Parent and Merger Sub contained in this Agreement shall be true and correct (without giving effect to any limitation as to “materiality” or “Parent Material Adverse Effect” set forth in such representations and warranties) as of the date of this Agreement and as of the Closing, as though made on and as of the Closing (except to the extent expressly made as of an earlier date, in which case as of such earlier date), except where the failure of such representations and warranties to be true and correct, individually or in the aggregate, has not had and would not reasonably be expected to have a Parent Material Adverse Effect;

(b)          Each of Parent and Merger Sub shall have performed or complied in all material respects with its obligations, agreements and covenants under this Agreement to be performed or complied with by it at or prior to the Effective Time; and

(c)          Parent shall have delivered to the Company a certificate, dated as of the Closing Date, signed by a duly authorized officer of Parent and certifying as to the satisfaction of the conditions specified in Section 6.2(a) and Section 6.2(b).

Section 6.3           Conditions to Obligations of Parent and Merger Sub to Effect the Merger. The obligations of Parent and Merger Sub to consummate the Merger are further subject to the satisfaction, at or prior to the Closing, of the following conditions (which may be waived, in whole or in part, to the extent permitted by Law, by the Parent):

(a)        (i) The representations and warranties of the Company contained in Section 3.1 (Organization and Corporate Power), Section 3.2 (Capitalization), Section 3.3 (Authority; Execution and Delivery; Enforceability; State Takeover Statutes), Section 3.4(b)(i) (Consents and Approvals; No Conflicts), Section 3.6(b) (No Company Material Adverse Effect), Section 3.23 (Section 203 of the DGCL), Section 3.24 (Broker’s Fees), and Section 3.25 (Opinion of Financial Advisors) shall be true and correct in all respects (except, with respect to Section 3.2, for de minimis inaccuracies) as of the date of this Agreement and as of the Closing, as though made on and as of the Closing (except to the extent expressly made as of an earlier date, in which case as of such earlier date), and (ii) each of the other representations and warranties of the Company contained in this Agreement shall be true and correct (without giving effect to any limitation as to “materiality” or “Company Material Adverse Effect” set forth in such representations and warranties (other than in the representation in Section 3.6(b))) as of the date of this Agreement and as of the Closing, as though made on and as of the Closing (except to the extent expressly made as of an earlier date, in which case as of such earlier date), except where the failure of such representations and warranties to be true and correct, individually or in the aggregate, has not had and would not reasonably be expected to have a Company Material Adverse Effect;

(b)        The Company shall have performed or complied in all material respects with its obligations, agreements and covenants under this Agreement to be performed or complied with by it at or prior to the Effective Time;

(c)          Each of the consents, clearances, Permits, amendments, notices, waivers, approvals, authorizations or other filings to, with or from any applicable Governmental Entity shall have been made, obtained or given; any applicable actions of any Governmental Entity shall have been taken and any applicable waiting periods shall have expired, in each case as set forth on Section 6.3(c) of the Company Disclosure Letter;

(d)       Since the date of this Agreement, no event, occurrence, fact, condition, change, development or effect shall have occurred that, individually or in the aggregate, has had or would reasonably be expected to have a Company Material Adverse Effect;

(e)         The Company shall have delivered to Parent the Payoff Letters and vendor invoices within the applicable time periods, in each case, in accordance with the provisions of Section 5.16(a) and 5.16(b);

(f)          [Intentionally omitted]

(g)       The Company shall have delivered a properly executed certification, in a form reasonably satisfactory to Parent and in form and substance required under the Treasury Regulations, stating that the Company is not and has not been a “United States real property holding corporation” (as defined in Section 897(c)(2) of the Code) during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code, and a copy of the notice of such certification to be sent to the IRS in accordance with the provisions of Treasury Regulations Section 1.897-2(h)(2), together with written authorization for Parent to deliver such notice and copy of the certificate to the IRS on behalf of the Company after Closing;

(h)        A majority of the key officers of the Company set forth on Section 6.3(h) of the Company Disclosure Letter (the “Key Officers”) continue to be serving in the same capacity as such Key Officer was serving as of the date of this Agreement, and shall not have communicated to the Company verbally or in writing any intent to cease serving in such capacity after the Effective Time which has not been previously communicated to the Parent in writing;

(i)           The Company shall have caused each director of the Company, and each officer, director or manager of each Company Subsidiary to, in each case, deliver a letter of resignation in form and substance reasonably satisfactory to Parent, terminating such Person’s position with the Company and/or applicable Company Subsidiaries, effective as of the Effective Time; and

(j)         The Company shall have delivered to Parent a certificate, dated as of the Closing Date, signed by a duly authorized officer of the Company and certifying as to the satisfaction of the conditions specified in Section 6.3(a), Section 6.3(b), Section 6.3(c), and Section 6.3(d).

(k)         Except with respect to GSE Systems Engineering (Beijing) Company, Ltd., the Company shall have taken (or caused to be taken) all actions necessary to terminate and eliminate all intercompany Indebtedness, liabilities and other debts and obligations within its control, including by, with or among any Company Subsidiaries or other Affiliates, and to pay, settle, cancel or release all such Indebtedness, liabilities and other debts and obligations in a manner such that none of the Company or any Company Subsidiary has any liability or obligation related thereto at or following the Closing and shall provide evidence of the same, in form and substance reasonably satisfactory to Parent, to Parent.

Section 6.4          Frustration of Closing Conditions. None of the Company, Parent or Merger Sub may rely, either as a basis for not consummating the Merger or terminating this Agreement and abandoning the Merger, on the failure of any condition set forth in Section 6.1, Section 6.2, or Section 6.3, as the case may be, to be satisfied if such failure was primarily due to the breach by such Party of any representation, warranty, covenant or other agreement of such Party set forth in this Agreement.

Section 7.1          Termination. This Agreement may be terminated and the Merger may be abandoned at any time prior to the Effective Time (except as otherwise stated below):

(i)        if any Governmental Entity of competent jurisdiction shall have issued an Order permanently restraining, enjoining, or otherwise prohibiting or making illegal the Merger and such Order shall have become final and non-appealable; provided, that the right to terminate this Agreement pursuant to this Section 7.1(b)(i) shall not be available to any Party that has breached its obligations in any material respect under this Agreement in any manner that shall have primarily caused or resulted in (x) any Governmental Entity of competent jurisdiction issuing an Order permanently restraining, enjoining, or otherwise prohibiting the consummation of the Merger or the Transactions or (y) such Order becoming final and non-appealable;

(ii)        if the Effective Time shall not have occurred by six (6) months after the Execution Date (the “Outside Date”); provided, that the right to terminate this Agreement pursuant to this Section 7.1(b)(ii) shall not be available to any Party that has breached its obligations in any material respect under this Agreement in any manner that shall have proximately caused or resulted in the failure of the Effective Time to have occurred by the Outside Date;

(iii)     if the Company Stockholder Approval shall not have been obtained at the Company Stockholders’ Meeting or at any adjournment or postponement thereof;

(i)         if, prior to receipt of the Company Stockholder Approval, (i) the Company Board has received a Superior Proposal, (ii) the Company has complied in all material respects with Section 5.2(c), (iii) to the extent permitted by and effected in accordance with Section 5.2(c), the Company Board approves, and the Company concurrently with the termination of this Agreement enters into, an Alternative Transaction Agreement with respect to such Superior Proposal and (iv) the Company pays Parent the applicable termination fee set forth in and pursuant to the terms of Section 7.3 contemporaneously with such termination; or

(ii)        if, prior to the Closing Date, either Parent or Merger Sub shall have breached or failed to perform any of its representations, warranties, covenants, or agreements contemplated by this Agreement, which breach or failure to perform (A) would give rise to either the failure to satisfy any condition set forth in Section 6.1 or Section 6.2 and (B) is incapable of being cured by Parent by the Outside Date or, if capable of being cured, shall not have been cured by Parent within thirty (30) calendar days following receipt of written notice of such breach or failure to perform from the Company.

(i)         if, prior to receipt of the Company Stockholder Approval, (A) an Adverse Recommendation Change shall have occurred, (B) the Company pursues or agrees to pursue a definitive agreement with respect to a Superior Proposal (other than an Acceptable Confidentiality Agreement), or (C) the Company shall have failed to include the Company Recommendation in the Proxy Statement; or

(ii)        if the Company shall have breached or failed to perform any of its representations, warranties, covenants, or agreements set forth in this Agreement, which breach or failure to perform (A) would give rise to the failure of a condition set forth in Section 6.1 or Section 6.3 and (B) is incapable of being cured by the Company by the Outside Date or, if capable of being cured, shall not have been cured by the Company within thirty (30) calendar days following receipt of written notice of such breach or failure to perform from Parent.

Section 7.2         Effect of Termination. In the event this Agreement is terminated by either Parent or the Company in accordance with Section 7.1, as applicable, written notice thereof shall be given by the terminating Party to the other Party specifying the provision hereof pursuant to which such termination is made. In the event this Agreement is terminated in accordance with Section 7.1, this Agreement shall become void and have no effect and there shall not be any liability or obligation on the part of any Party hereto, other than this Section 7.2, Section 7.3, and Article VIII, which provisions shall survive such termination. Notwithstanding anything in this Article VII to the contrary, except as set forth in Section 7.3(e), no termination made in accordance with Section 7.1 shall relieve any Party from liability for any fraud or Willful Breach of any representation, warranty, covenant, or other agreement contained in this Agreement prior to the valid termination of this Agreement. No termination of this Agreement shall affect the obligations of the Parties that expressly survive termination of this Agreement or are contained in the Confidentiality Agreement, all of which obligations shall survive the termination of this Agreement in accordance with its terms.

(a)         Except as otherwise provided in this Section 7.3 or otherwise as expressly provided in this Agreement, together with any fees for similar filings or notices under foreign Laws or regulations, all fees and expenses incurred by the Parties hereto shall be borne solely by the Party that has incurred such fees and expenses.

(b)          In the event that this Agreement is terminated by Parent pursuant to Section 7.1(d)(i), then the Company shall pay to Parent a fee in the amount of $600,000 (the “Company Termination Fee”), on the third (3^rd) Business Day following the termination effective date.

(c)          In the event that this Agreement is terminated by the Company pursuant to Section 7.1(c)(i), then the Company shall pay to Parent the Company Termination Fee contemporaneously with such termination.

(d)         In the event that after the Execution Date but prior to the Effective Time, (i) a Takeover Proposal shall have been publicly disclosed, announced or otherwise made public by any Person (other than Parent or any of its Affiliates) (a “Company Takeover Proposal”), (ii) this Agreement is terminated pursuant to Section 7.1(b)(ii), Section 7.1(b)(iii)  or Section 7.1(d)(ii) or and, at the time of such termination, the Company Takeover Proposal has not been withdrawn and remains outstanding, and (iii) within twelve (12) months after the termination referred to in the preceding sub-clause (ii), the Company enters into a definitive agreement with respect to the transactions contemplated by such Company Takeover Proposal, then the Company shall pay to Parent the Company Termination Fee concurrently with the occurrence of the consummation of any Company Takeover Proposal; provided, however, that for purposes of the definition of “Takeover Proposal” in this Section 7.3(d), references to “15%” shall be replaced by “50%.”

(e)          The Parties acknowledge that this Section 7.3 is an integral part of the Transactions and that, without the terms contemplated herein, the Parties would not enter into this Agreement. Accordingly, if the Company fails to promptly pay the Company Termination Fee pursuant to this Section 7.3, and Parent commences a lawsuit for the purpose of obtaining such payment, and such lawsuit results in a final, non-appealable judgment against the Company for any amount due pursuant to this Section 7.3, then the Company shall pay Parent all of its reasonable costs and expenses (including reasonable attorneys’ fees and expenses, provided that in no event shall attorneys’ fees that are based on a contingency fee, “success” fee or any other type of fee arrangement depending on the outcome of the lawsuit or Proceeding be deemed to constitute reasonable attorneys’ fees) arising from such lawsuit, together with interest accruing on the Company Termination Fee at the prime lending rate as published in The Wall Street Journal (compounded annually) in effect on the date the Company Termination Fee was required to be made with such interest accruing as of the date immediately following the date the Company Termination Fee was due in accordance with this Section 7.3. Notwithstanding anything to the contrary in this Agreement, but subject to Section 8.12, (i) if Parent receives or is entitled to receive the Company Termination Fee pursuant to this Section 7.3, such payment (plus any interest thereon pursuant to this Section 7.3(e)) shall be the sole and exclusive remedy of Parent and Merger Sub hereunder against the Company, except in the case of fraud or a Willful Breach of any covenant, agreement or obligation (in which case only the Company shall be liable for damages for such fraud or Willful Breach) and, upon payment of the Company Termination Fee, the Company shall have no further liability or obligation relating to or arising out of this Agreement or the Transactions (except for the liability of the Company in the case of fraud or a Willful Breach of any covenant, agreement or obligation), (ii) if Parent or Merger Sub receives any payments from the Company in connection with any breach of this Agreement (except for breaches of the Company in the case of fraud or a Willful Breach of any covenant, agreement or obligation) and, thereafter, Parent is also entitled to receive the Company Termination Fee, the Company’s obligation to pay the Company Termination Fee shall be reduced by the aggregate amount of such payments made by the Company to Parent or Merger Sub in respect of any such breaches, (iii) under no circumstances shall Parent or Merger Sub, taken together, be entitled to receive both a grant of specific performance in accordance with Section 8.12 and money damages (which, for the avoidance of doubt, includes all or any portion of the Company Termination Fee), in each case, for any matters arising out of or related to this Agreement or the Transactions, (iv) under no circumstances shall the Company be permitted or entitled to receive both a grant of specific performance in accordance with Section 8.12 and money damages, in each case, for any matters arising out of or related to this Agreement or the Transactions; (v) in no event shall the Company’s liability for monetary damages to Parent or Merger Sub arising under this Agreement exceed the Termination Fee. All payments under this Section 7.3 shall be made by wire transfer of immediately available funds to an account designated in writing by Parent. In no event shall the Company Termination Fee be payable more than once.

Section 8.1        Amendment and Modification. This Agreement may be amended, modified, and supplemented in any and all respects by written agreement of the Parties hereto at any time prior to the Closing with respect to any of the terms contained herein; provided, further, that after receipt of the Company Stockholder Approval, no amendment, modification, or supplement of this Agreement shall be effective that is required by applicable Law, or the rules and regulations of the NASDAQ, to be approved by the stockholders of the Company or the sole member of Parent, as applicable, without such approval(s) having first been obtained.

Section 8.2           Expenses; Transfer Taxes.

(a)       Except as otherwise provided in this Agreement, whether or not the Merger is consummated, all costs and expenses incurred in connection with the Merger, this Agreement and the Transactions contemplated hereby shall be paid by the Party incurring or required to incur such expenses.

(b)         All transfer, documentary, sales, use, stamp, registration and other such Taxes imposed with respect to the transfer of Company Common Stock pursuant to the Merger shall be borne by the Company and expressly shall not be a liability of the holders of Shares.

Section 8.3         Extension; Waiver. At any time prior to the Effective Time, upon written consent, Parent and Merger Sub, on the one hand, and the Company, on the other hand, may (a) extend the time for the performance of any of the obligations or other acts of the other Party or Parties, (b) waive any inaccuracies in the representations and warranties of the other Party or Parties contained in this Agreement or in any document delivered pursuant to this Agreement, or (c) subject to Section 8.1, waive compliance of the other Party or Parties with any of the agreements or conditions contained in this Agreement. Except as required by applicable Law, no waiver of this Agreement shall require the approval of the stockholders of either Parent or the Company. Any agreement on the part of a Party to any such extension or waiver shall be valid only if set forth in an instrument in writing signed on behalf of such Party. The failure of any Party to assert any of its rights under this Agreement or otherwise shall not constitute a waiver of such rights, nor shall any single or partial exercise by any Party of any of its rights under this Agreement preclude any other or further exercise of such rights or any other rights under this Agreement.

Section 8.4          No Survival of Representations and Warranties. None of the representations and warranties set forth in either this Agreement or in any schedule, instrument, or other document delivered pursuant to this Agreement or otherwise in connection with the Transactions shall survive the Effective Time. The covenants and agreements of the Parties contained in this Agreement or in any certificate or other writing delivered pursuant hereto or in connection herewith shall not survive the Closing, except to the extent that any covenants and agreements by their terms are to be performed in whole or in part at or after the Closing, including those covenants and agreements set forth in this Article VIII, which shall, in each case, survive in accordance with their respective terms or until completed, as the case may be. Notwithstanding the foregoing, nothing in this Section 8.4 shall affect the time periods during which Parent may make a claim under, or otherwise limit any claim made by Parent under, the R&W Policy. 

Section 8.5           Notices. All notices and other communications to any Party required hereunder or in connection with this Agreement shall be in writing and shall be deemed given if (i) delivered personally (providing proof of delivery), (ii) sent by a reliable overnight courier service, such as Federal Express (with confirmation of delivery), or (iii) sent by email (without receipt of a delivery failure notice) (if sent during normal business hours of the recipient, and on the next Business Day if sent after normal business hours of the recipient); provided that each Party shall use reasonable efforts to confirm receipt of such email correspondence promptly upon receipt. Such communications must be sent to the Parties at the following addresses (or at such other address for a Party as shall be specified by like notice):

Section 8.6         Counterparts. This Agreement may be executed in two or more counterparts, all of which shall be considered one and the same agreement and shall become effective when two or more counterparts have been signed by each of the Parties and delivered to the other Parties (including by facsimile or via portable document format (.pdf)), it being understood that all Parties need not sign the same counterpart. Signatures to this Agreement transmitted by facsimile transmission, by electronic mail in “portable document format” (“.pdf”) form, or by any other electronic means intended to preserve the original graphic and pictorial appearance of a document, will have the same effect as physical delivery of the paper document bearing the original signature.

Section 8.7       Entire Agreement; Third Party Beneficiaries. This Agreement (including the exhibits, schedules, and annexes attached hereto or referenced herein, together with the other documents, certificates, agreements, and/or instruments referenced herein), the Confidentiality Agreement, and any other agreements entered into contemporaneously herewith (a) constitute the entire agreement and supersede all prior agreements and understandings, both written and oral, among the Parties with respect to the subject matter hereof and thereof and (b) are not intended to confer any rights, benefits, remedies, obligations, or liabilities upon any Person other than the Parties hereto and their respective successors and permitted assigns, except that, notwithstanding the foregoing sub-clause (b), (i) following the Effective Time, the provisions of Section 5.9 shall be enforceable by each Person entitled to indemnification hereunder and such Person’s heirs, legatees, personal representatives, legal representatives, executors, administrators, successors, and assigns, (ii) following the Effective Time, the provisions hereof shall be enforceable by each former stockholder of the Company and each holder of Company equity-based awards to the extent necessary to receive the Merger Consideration to which each such stockholder is entitled to pursuant to Article II.

Section 8.8           Severability. If any term, provision, covenant, or restriction of this Agreement is held by a court of competent jurisdiction to be invalid, illegal, void, or unenforceable, the remainder of the terms, provisions, covenants, and restrictions of this Agreement shall remain in full force and effect. The Parties hereto further agree to replace such invalid, illegal, void or unenforceable provision of this Agreement with a valid and enforceable provision that will achieve, to the extent possible, the economic, business and other purposes of such void or unenforceable provision.

Section 8.9         Assignment. Neither this Agreement nor any of the rights, interests, or obligations hereunder shall be assigned by any of the Parties hereto in whole or in part (whether by operation of Law or otherwise) without the prior written consent of the other Parties, and any such assignment without such consent shall be null and void; provided that each of Parent and Merger Sub shall have the right, without the prior written consent of the Company, (i) to assign all or any portion of its respective rights, interests and obligations hereunder to a wholly owned direct or indirect Subsidiary of Parent or to any of its respective Affiliates, in each case, that is a “United States person” within the meaning of Section 7701(a)(30) of the Code or a domestic limited liability company treated as an entity disregarded as separate from such a “United States person” for U.S. federal income Tax purposes, or (ii) to any debt financing sources for purposes of creating a security interest herein or otherwise assigning as collateral in respect of any debt financing in accordance with the terms of such debt financing, but in each case no such assignment shall relieve Parent or Merger Sub of any of its obligations hereunder. This Agreement shall be binding upon, inure to the benefit of, and be enforceable by the Parties and their respective successors and permitted assigns.

Section 8.10        Headings. The descriptive headings used herein are inserted for convenience of reference only and are not intended to be part of or to affect the meaning or interpretation of this Agreement.

Section 8.11        Governing Law. This Agreement and all claims or causes of action (whether at Law, in contract or in tort or otherwise) that may be based upon, arise out of or relate to this Agreement or the Transactions, or the negotiation, execution or performance of this Agreement or the Transactions shall be governed by, and construed in accordance with, the Laws of the State of Delaware without giving effect to any principles of conflicts of law thereof or of any other jurisdiction that would require the application of the Laws of any other jurisdiction.

Section 8.12         Enforcement; Exclusive Jurisdiction.

(a)          The Parties agree that irreparable damage, for which monetary damage, even if available, may not be an adequate remedy, would occur and that the Parties would not have any adequate remedy at law in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached in any material respect. Accordingly, in the event of such breach or non-performance, the Parties shall be entitled to seek an injunction or injunctions to prevent breaches or threatened breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement. The Parties further agree not to assert that a remedy of specific performance is unenforceable, invalid, contrary to applicable Law or inequitable for any reason, nor to assert that a remedy of monetary damages or other remedy at law would provide an adequate remedy for any such breach. Each Party agrees that no other Party or any other Person shall be required to obtain, furnish or post any bond or similar instrument in connection with or as a condition to obtaining any remedy referred to in this Section 8.12, and each Party irrevocably waives any right it may have to require the obtaining, furnishing or posting of any such bond or similar instrument. If, on the Outside Date, there is a pending Proceeding that has been brought by a Party seeking the remedies provided for in this Section 8.12, then, without further action, the Outside Date shall be automatically extended until the date that is five (5) Business Days after the dismissal, settlement or entry of a final order with respect to such Proceeding.

(b)         Each of the Parties irrevocably agrees that any Proceeding arising out of or relating to this Agreement or the Transactions brought by any other Party or its successors or assigns shall be brought and determined in the Delaware Court of Chancery and any state appellate court therefrom within the State of Delaware (unless the Delaware Court of Chancery shall not have subject matter jurisdiction over a particular matter, in which case, in any state or federal court within the State of Delaware). In furtherance of the foregoing, each Party hereby (a) irrevocably consents to submit itself and its properties, and hereby submits itself and its properties, to the personal jurisdiction of the courts contemplated under this Section 8.12, (b) agrees that it will not attempt to deny or defeat such personal jurisdiction by motion or other request for leave from any such court, and agrees not to plead or claim any objection to the laying of venue in any such court or that any Proceeding in any such court has been brought in an inconvenient forum, (c) agrees that it will not bring any action relating to this Agreement or any of the Transactions in any court other than the courts contemplated in this Section 8.12, and (d) consents to service of process being made through the notice procedures set forth in Section 8.5.

Section 8.13     WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY KNOWINGLY, INTENTIONALLY, AND VOLUNTARILY IRREVOCABLY AND UNCONDITIONALLY WAIVES TO THE FULLEST EXTENT PERMITTED BY LAW ANY AND ALL RIGHTS TO TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (I) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (II) IT UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THE FOREGOING WAIVER, (III) IT MAKES THE FOREGOING WAIVER VOLUNTARILY, AND (IV) IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 8.13.

Section 8.14         Interpretation. When a reference is made in this Agreement to an Article or Section, such reference shall be to an Article or Section of this Agreement unless otherwise indicated. The words “include,” “includes,” and “including” shall be deemed to be followed by “without limitation” whether or not they are in fact followed by such words or words of like import. The words “hereof,” “herein,” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement, unless the context otherwise requires. The word “will” shall be construed to have the same meaning and effect as the word “shall.” The word “or” shall not be deemed to be exclusive. The words “the date hereof” shall mean the Execution Date. The word “extent” and the phrase “to the extent” when used in this Agreement shall mean the degree to which a subject or other thing extends, and such word or phrase shall not mean simply “if.” References to days mean calendar days unless Business Days are expressly specified. The terms “Dollars” and “$” mean United States Dollars. All terms defined in this Agreement shall have the defined meanings when used in any exhibit, schedule, document, agreement, certificate, or other instrument made or delivered pursuant hereto, unless such term is expressly defined therein. The definitions contained in this Agreement are applicable to the singular as well as the plural forms of such terms and to the masculine as well as to the feminine and neuter genders of such term. Any Contract, instrument, or Law defined or referred to herein means such Contract, instrument, or Law as from time to time amended, modified, or supplemented, including (in the case of Contracts or instruments) by waiver or consent and (in the case of Laws) by succession of comparable successor Laws and references to all attachments thereto and instruments incorporated therein. References to a Person are also to its permitted successors and assigns. This Agreement is the product of negotiations by the Parties having the assistance of counsel and other advisers. This Agreement shall be construed as if drafted jointly by the parties hereto, and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any provision of this Agreement. Whenever this Agreement requires any party hereto to take or not take any action, such requirement shall be deemed to include a requirement of such party to cause each of its Subsidiaries to take or not take such action, as applicable. Whenever this Agreement requires a Company Subsidiary to take any action, such requirement shall be deemed to include an undertaking on the part of the Company to cause such Company Subsidiary to take such action. The words “made available to Parent” and words of similar import refer to documents (i) posted to the Data Room maintained by the Company or its Representatives in connection with the Transactions, (ii) delivered in person or electronically to Parent, Merger Sub or any of their respective Representatives or (iii) that are publicly available in the Electronic Data Gathering, Analysis and Retrieval (EDGAR) database of the SEC, in each case, at least two (2) Business Days prior to the Execution Date.

(a)          The following terms and those set forth in Section 8.16(b), when used in this Agreement, and the exhibits, schedules, and annexes and other documents delivered in connection herewith, shall have the meanings specified in this Section 8.16 or on the corresponding page number of the Index of Defined Terms:

“Affiliate” means, with respect to any specified Person, any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such first Person. “Control” (including the terms “controlled by” and “under common control with”), with respect to the relationship between or among two or more Persons, means the possession, directly or indirectly, of the power to direct or cause the direction of the affairs or management of a Person, whether through the ownership of voting securities, as trustee or executor, by Contract or any other means.

“Anti-Slavery Laws” means, collectively, 19 U.S.C. 1307 and Uyghur Forced Labor Prevention Act, the Modern Slavery Act of 2015 and any other similar anti-slavery Law.

“Beneficial Owner” means, with respect to a Security, any Person who, directly or indirectly, through any contract, agreement, arrangement, understanding, relationship or otherwise, has or shares (i) the power to vote, or to direct the voting of, such Security, or (ii) the power to dispose of, or to direct the disposition of, such Security, or (iii) the ability to profit or share in any profit derived from a transaction in such Security, and shall otherwise be interpreted in accordance with the term “beneficial ownership” as defined in Rule 13d-3 adopted by the SEC under the Exchange Act. The terms “Beneficially Own,” “Beneficially Owned,” and “Beneficial Ownership” shall have a correlative meaning.

“Business Day” means any day other than a Saturday or Sunday or any other day on which commercial banks in the City of Houston, Texas are authorized or required by applicable Law to be closed for business.

“Cash” means, as of the time of determination, (a) the aggregate amount of cash and cash equivalents held by the Company and the Company Subsidiaries including but not limited to money market accounts, marketable securities and other liquid assets, determined in accordance with GAAP, plus (b) deposits in transit and deposits not yet cleared, minus (c) the aggregate balance of all outstanding checks written against such accounts, minus (d) the amount of any cash or cash equivalents not freely usable by the Company and described on Section 8.16(a)-RC of the Company Disclosure Letter (“Restricted Cash”).

“Code” means the United States Internal Revenue Code of 1986, as amended, and the rules and regulations promulgated thereunder.

“Company Benefit Plan” means any employee benefit plan including any “employee benefit plan,” as defined in Section 3(3) of ERISA and each stock grant, stock purchase, stock option, restricted stock, other equity or equity-related, severance, employment, change-in-control, retention, fringe benefit, loan, collective bargaining, bonus, incentive, sabbatical, medical, dental, vision, disability, cafeteria benefit, dependent care, welfare benefit, life insurance or accident insurance, retirement, supplemental retirement, deferred compensation or other compensation or benefit plan, agreement, program, policy or other arrangement, whether or not subject to ERISA, maintained, entered into or contributed to by the Company or any of its ERISA Affiliates, or to which the Company or any of its ERISA Affiliates is a party, whether written or oral, for the benefit of any present or former employee, consultant or director of the Company or any of the Company Subsidiaries (including their dependents or beneficiaries) or with respect to which the Company or any of its ERISA Affiliates has any liability (contingent or otherwise) including any plan, program or agreement for the benefit of any service providers who perform services outside the United States.

“Company Information Systems” means all computer hardware, network, software, firmware, equipment which is reliant upon microchip technology, process automation, industrial and environmental control systems and telecommunications systems (including private branch exchanges) owned, leased or licensed by or on behalf of the Company and Company Subsidiaries.

“Company IP” means any Intellectual Property owned or purported to be owned, in whole or in part, by the Company or any Company Subsidiary.

“Company Long-Term Incentive Plan” means the GSE Systems, Inc. 1995 Long-Term Incentive Plan, amended and restated as of May 13, 2024.

“Company Material Adverse Effect” means any event, change, effect, development, state of facts, condition (financial or otherwise), circumstance or occurrence that, individually or in the aggregate with all other events, changes, effects, developments, states of facts, conditions, circumstances and occurrences (i) would, or would reasonably be expected to, prevent, materially delay or materially impede the ability of the Company to consummate the Merger and the other Transactions or (ii) is, or would reasonably be expected to be, materially adverse to the business, results of operations, properties, assets, liabilities, operations or financial condition of the Company and the Company Subsidiaries, taken as a whole; provided that no event, change, effect, development, state of facts, condition, circumstance or occurrence shall be taken into account, either alone or in combination, in determining whether a Company Material Adverse Effect has occurred for purposes of clause (ii) of this definition, resulting or arising from or relating to any of the following: (A) any changes or developments in general United States or global economic conditions, (B) any changes or developments in the general conditions of the industries in which the Company and/or the Company Subsidiaries operate, (C) any decline in the market price or trading volume of the Securities of the Company, in and of itself (it being understood that the underlying events, changes, effects, developments, states of facts, conditions, circumstances and occurrences giving rise to or contributing to such decline may be deemed to constitute, or be taken into account in determining whether there has been, a Company Material Adverse Effect), (D) any failure by the Company to meet any internal or published projections, forecasts, estimates, or predictions in respect of revenues, earnings or other financial or operating metrics for any period (it being understood that the underlying events, changes, effects, developments, states of facts, conditions, circumstances, and occurrences giving rise to or contributing to such failure may be deemed to constitute, or be taken into account in determining whether there has been, a Company Material Adverse Effect), (E) the execution and delivery of this Agreement or the public announcement or pendency of the Transactions or Transaction Litigation, (F) any action taken expressly required by this Agreement, (G) any change in applicable Law or GAAP (or authoritative interpretations thereof) after the date of this Agreement, (H) the outbreak or escalation of hostilities, any acts of war, sabotage or terrorism, or any escalation or worsening of any such acts of war, sabotage or terrorism, or (I) earthquakes, hurricanes, tsunamis, tornadoes, floods, mudslides, wild fires or natural disasters, pandemics, epidemics, or other widespread health crises or weather conditions; except, in the cases of clauses (A), (B), (G), (H), and (I) to the extent that the Company and the Company Subsidiaries, taken as a whole, are disproportionately adversely affected thereby as compared to other participants in the industries in which the Company and the Company Subsidiaries operate (in which case, such adverse effects (if any) shall be taken into account when determining whether a “Company Material Adverse Effect” has or may occur only to the extent they are disproportionate).

“Company PSU” means each restricted share unit subject to performance-based or market-based vesting criteria payable in, or the value of which is determined with reference to the value of, shares of Company Common Stock granted pursuant to the Company Long-Term Incentive Plan.

“Company RSU” means each restricted share unit subject solely to time-based vesting and not performance-based or market-based vesting, payable in, or the value of which is determined with reference to the value of shares of Company Common Stock, granted by the Company pursuant to the Company Long-Term Incentive Plan.

“Company Stock Options” means any options to purchase Shares of Company Common Stock granted pursuant to the Company Long-Term Incentive Plan, and whether or not subject to performance vesting conditions.

“Confidentiality Agreement” means the confidentiality agreement, dated on or about September 13, 2023, between Pelican Energy Partners Base Zero LP and the Company, as the same may be further amended, supplemented, or otherwise modified by the Parties.

“Constituent Documents” means, with respect to any Person, the charter, the certificate of incorporation or formation, bylaws, limited liability company, partnership or operating agreement, or comparable organizational documents of such Person, as the same may be amended, supplemented, or otherwise modified from time to time.

“Company Equity Award” means any equity compensation award granted or awarded under the Company Long-Term Incentive Plan or otherwise by the Company, including but not limited to Company PSUs, Company RSUs, and Company Stock Options.

“Contract” means any contract, subcontract, note, loan, bond, debenture, mortgage, indenture, deed of trust, license, lease, agreement or other contract, agreement, commitment instrument or obligation, written or oral, in each case, including all amendments thereto.

“Data Room” means, the data site maintained by the Company and its Representatives in connection with the transactions completed by this Agreement hosted by “Datasite”.

“Environmental Claim” means any claim, action, cause of action, suit, Proceeding, investigation, order, demand, or notice (written or oral) by any Person alleging actual or potential liability (including, without limitation, actual or potential liability for investigatory costs, cleanup costs, governmental response costs, natural resources damages, property damages, personal injuries, attorneys’ fees, or penalties) arising out of, based on, resulting from or relating to (a) the presence, Release of or exposure to any Materials of Environmental Concern, (b) circumstances forming the basis of any violation, or alleged violation, of any Environmental Law, or (c) any contract, agreement or other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.

“Environmental Laws” means all Laws relating to pollution, the protection, restoration, or remediation of or prevention of harm to the environment or natural resources, or the protection of human health and safety from the presence of Materials of Environmental Concern, including Laws relating to: (a) the exposure to, or Releases or threatened Releases of, Materials of Environmental Concern; (b) the generation, manufacture, processing, distribution, use, treatment, containment, disposal, storage, transport, recycling, reclamation, re-use, or handling of Materials of Environmental Concern; or (c) recordkeeping, notification, disclosure, and reporting requirements respecting Materials of Environmental Concern.

“ERISA” means the Employee Retirement Income Security Act of 1974, as amended, and the rules and regulations promulgated thereunder.

“ERISA Affiliate” means, with respect to any Person, each trade or business, whether or not incorporated, that, together with such Person, would be deemed a “single employer” within the meaning of Section 4001(b) of ERISA or Section 414 of the Code.

“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.

“First Warrant” means that certain Common Stock Purchase Warrant No. 1 issued by the Company to Lind Global and dated February 23, 2022.

“GAAP” means generally accepted accounting principles in the United States, as consistently applied by the Company.

“Indebtedness” means any of the following liabilities or obligations (i) any indebtedness or other obligation for borrowed money, whether current, short-term, or long-term, and whether secured or unsecured (including any principal, premium, accrued and unpaid interest, related expenses, prepayment penalties, commitment and other fees, sale or liquidity participation amounts, reimbursements, indemnities and all other amounts payable in connection therewith), (ii) any indebtedness evidenced by a note, bond, debenture, or other Security or similar instrument, (iii) any liabilities or obligations with respect to interest rate swaps, collars, caps, and similar hedging obligations or other financial agreements or arrangements entered into for the purpose of limiting or managing interest rate risks, (iv) any capitalized lease obligations, (v) amounts owing for any conditional sale, or other title retention Contract, or for the deferred purchase price related to past acquisitions, including but not limited to “earn-outs,” indemnities and “seller notes” payable with respect to the acquisition of any business, assets or securities, but excluding any trade payables or similar obligations to a trade creditor incurred in the ordinary course of business, (vi) liabilities secured by any Liens, (vii) all liabilities, contingent or otherwise, as an account party in respect of letters of credit, credit support arrangements, standby letters of credit, performance bonds, and letters of guarantee to the extent not otherwise secured by Restricted Cash, (viii) any unfunded pensions or deferred compensation obligations to any of the Company’s employees, and (ix) guaranties, endorsements, and assumptions in respect of any of the foregoing clauses (i) through (viii) and (x) any fees, accrued and unpaid interest, premiums or penalties on any of the foregoing, in each case whether or not accrued or required to be accrued on the balance sheet of the Company or any Company Subsidiary.

“Intellectual Property” means all intellectual property rights throughout the world, including all U.S. and foreign (i) patents, patent applications, invention disclosures, and all related continuations, continuations-in-part, divisionals, reissues, re-examinations, substitutions, and extensions thereof, (ii) trademarks, service marks, names, corporate names, trade names, domain names, social media addresses and handles, logos, slogans, trade dress, design rights, and other similar designations of source or origin, together with the goodwill symbolized by any of the foregoing (“Trademarks”), (iii) copyrights, works of authorship and copyrightable subject matter, (iv) rights in computer programs (whether in source code, object code, or other form), algorithms, compilations, technology supporting the foregoing, and all documentation, including user manuals and training materials, related to any of the foregoing (“Software”), (v) Trade Secrets, (vi) rights of publicity and privacy, and rights to personal information, (vii) moral rights and rights of attribution and integrity, (viii) all rights in the foregoing and in other similar intangible assets, and (ix) all applications and registrations for the foregoing.

“International Trade Laws” means all applicable (i) U.S. and non-U.S. export control laws and regulations, including but not limited to the United States Export Administration Act, International Emergency Economic Powers Act, the Export Control Reform Act of 2018, and their implementing Export Administration Regulations and the Arms Export Control Act and its implementing International Traffic in Arms Regulations; (ii) U.S. and non-U.S. laws, regulations or restrictive measures relating to economic or trade sanctions or embargoes, including those administered or enforced by the U.S. Department of Treasury Office of Foreign Assets Control (“OFAC”), the U.S. Department of State, and the U.S. Department of Commerce, the United Nations Security Council, the European Union, an EU Member State, the United Kingdom, China or any other relevant Governmental Entity; (iii) U.S. foreign investment review regulations (31 C.F.R. Parts 800 and 801); and (iv) anti-boycott Laws and regulations, including the U.S. Anti-Boycott Act of 2018, Part II of the Export Control Reform Act of 2018, regulations administered by the U.S. Department of Commerce and the U.S. Department of Treasury and any other similar Laws or regulations administered by the European Union, an EU Member State, the United Kingdom, China or any other relevant Governmental Entity.

“Knowledge” means the actual knowledge of (a) with respect to the Company, the persons set forth in Section 8.16(a)-KP of the Company Disclosure Letter after reasonable due inquiry of their respective direct reports and (b) with respect to Parent, Sam Veselka and Walter Weathers, after reasonable due inquiry of their respective direct reports.

“Laws” means any and all federal, state, local foreign, national or supranational statute, law (in each case, statutory, common or otherwise), constitution, treaty, convention, ordinance, code, Order, rule, statute, injunction, ruling, award, decree, writ or other similar binding directive or guidance enacted, issued, adopted, promulgated, entered into or applied by a Governmental Entity having jurisdiction over a given matter, in each case as amended and in effect from time to time.

“Lien” means any lien (statutory or otherwise), pledge, hypothecation, mortgage, lease, restriction, covenant, title defect, assignment, charge, encumbrance, adverse right, claim, option, right of first refusal, preemptive right or security interest of any kind or nature whatsoever (including any restriction on the voting interest of any security, any restriction on the transfer of any security (other than those imposed by applicable securities Laws) or other asset or any restriction on the possession, exercise or transfer of any other attribute of ownership of any asset).

“Lind Global” means Lind Global Fund II LP, a Delaware limited partnership.

“Lind Note” means that certain Senior Convertible Promissory Note dated June 23, 2023 and issued to Lind Global, as amended by that certain First Amended to Senior Convertible Promissory Note, dated October 6, 2023 and by that certain Second Amendment to Senior Convertible Promissory Note, dated February12, 2024.

“Look-Back Date” means a date that is five (5) years prior to the date of this Agreement.

“Materials of Environmental Concern” means (a) any material, substance, chemical, or waste (or combination thereof) that (i) is listed, defined, designated, regulated, or classified as hazardous, toxic, radioactive, dangerous, a pollutant, a contaminant, petroleum, oil, or words of similar meaning or effect under any Law relating to pollution, waste, the environment, natural resources, or the protection of human health and safety, or (ii) can form the basis of any liability under any Law relating to pollution, waste, the environment, natural resources or the protection of human health and safety, and (b) petroleum or any fraction thereof, petroleum products, natural gas, liquified natural gas, asbestos or asbestos-containing materials, radioactive materials, radon, toxic mold, urea formaldehyde, per- or polyfluoroalkyl substances, and polychlorinated biphenyls.

“NASDAQ” means the NASDAQ Stock Market.

“Open Source Software” means any Software that is subject to (a) the GNU General Public License, GNU Library General Public License, Artistic License, BSD license, Mozilla Public License, or any similar license, including, but not limited to, those licenses listed at www.opensource.org/licenses or (b) any agreement with terms requiring any Company IP to be (1) disclosed or distributed in source code form; (2) licensed for the purpose of making derivative works; or (3) redistributable.

“Order” means any charge, order, writ, injunction, decree, ruling, judgment, award, injunction, settlement, or stipulation issued, promulgated, made, rendered, or entered into by or with any Governmental Entity (in each case, whether civil, criminal or administrative and whether temporary, preliminary, or permanent).

“Parent Material Adverse Effect” means any event, change, effect, development, state of facts, condition, circumstance or occurrence that, individually or in the aggregate with all other events, changes, effects, developments, states of facts, conditions, circumstances and occurrences, would, or would reasonably be expected to, prevent, materially delay, or materially impede the ability of Parent or Merger Sub to consummate the Merger and the other Transactions.

“Permitted Lien” means (i) any Lien for Taxes not yet due and payable or which is being contested in good faith by appropriate proceedings and for which adequate reserves have been established, (ii) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s or other similar Liens, including statutory liens, in each case incurred in the ordinary course of business to secure claims which are not yet due and payable or which are being contested in good faith by appropriate proceedings and for which adequate reserves have been established, (iii) pledges or deposits in connection with workers’ compensation, unemployment insurance, and other social security legislation, (iv) easements, rights-of-way, covenants, restrictions, and other similar nonmonetary encumbrances, and other minor irregularities in title, minor encroachments, or similar items shown on an accurate survey of the applicable Leased Real Property typical for the applicable property type and locality, in each case that (A) do not materially impair the use or value of the property subject thereto and (B) do not otherwise materially impair the business operations of the Company and its Company Subsidiaries, (v) non-exclusive licenses to Intellectual Property in the ordinary course of business, (vi) zoning, building codes, and other land use Laws regulating the use or occupancy of such Leased Real Property or the activities conducted thereon which are imposed by any Governmental Entity having jurisdiction over such Leased Real Property which are not violated by the current use or occupancy of such Leased Real Property and (vii) Liens set forth on Section 8.16(a)-PL of the Company Disclosure Letter.

“Person” means any individual, corporation, partnership, limited liability company, association, trust or other entity or organization, including the media, a Governmental Entity or an agency or instrumentality thereof, and any of their permitted successors and assigns.

“Personal Information” means information that identifies or can be used to directly or indirectly identify, describe, contact, locate, or otherwise be related to or associated with an individual or household, including information considered personal information or personal data under applicable Law.

“Proceeding” means any suit, action, proceeding, arbitration, mediation, audit, hearing, inquiry or, to the Knowledge of the Person in question, investigation (in each case, whether civil, criminal, administrative, investigative, formal or informal) commenced, brought, conducted, or heard by or before, or otherwise involving, any Governmental Entity, arbitrator or other tribunal.

“Release” means disposing, discharging, injecting, spilling, leaking, pumping, pouring, leaching, dumping, emitting, escaping, emptying, migrating, or other release into or upon the indoor or outdoor environment, including without limitation, any soil, sediment, subsurface strata, surface water, groundwater, ambient air, the atmosphere, or any other media.

“R&W Conditional Binder” means the conditional binder received by Parent on or immediately prior to the Execution Date.

“R&W Policy” means the buyer-side representations and warranties insurance policy to be purchased and bound by Parent, in accordance with the R&W Conditional Binder.

“Sanctioned Country” means any country or region that is the subject or target of economic sanctions or a comprehensive embargo under International Trade Laws (including Cuba, Iran, North Korea, Syria, and the Crimea, Donetsk, and Luhansk regions of Ukraine).

“Sanctioned Person” means any Person that is the target of Sanctions Laws, including (i) any Person listed in any list of designated or blocked Persons maintained by the U.S. Department of the Treasury’s Department’s Office of Foreign Assets Control or other U.S. or non-U.S. Governmental Authority under Sanctions Laws; (ii) any Person organized under the Laws of, part of the government of, or resident in a country or territory subject to comprehensive sanctions administered by OFAC or other applicable Governmental Entity or (iii) any Person 50% or more owned or, where relevant under applicable Sanctions Laws, controlled by any such Person or Persons or acting for or on behalf of such Person or Persons, or that is otherwise the target of asset-blocking sanctions maintained by the U.S. Treasury Department’s Office of Foreign Assets Control or other U.S. or non-U.S. Governmental Authority.

“Sanctions Laws” means applicable economic or financial sanctions or trade embargoes imposed, administered, or enforced by relevant Governmental Entities (to the extent consistent with U.S. law), including those administered by the U.S. government through the U.S. Treasury Department’s Office of Foreign Assets Control or the U.S. Department of State, the United Nations Security Council, the European Union or its Member States, or Her Majesty’s Treasury of the United Kingdom.

“Second Warrant” means that certain Common Stock Purchase Warrant issued by the Company to Lind Global and dated June 23, 2023.

“Secretary” means the Secretary of State of the State of Delaware.

“Securities Act” means, the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.

“Security” means, with respect to any Person, any series of common stock, preferred stock, and any other equity securities or capital stock of such Person (including interests convertible into or exchangeable or exercisable for any equity interest in any such series of common stock, preferred stock, and any other equity securities or capital stock of such Person), however described and whether voting or non-voting.

“Subsidiary” means, with respect to any Person, any corporation, limited liability company, partnership or other entity, whether incorporated or unincorporated, (i) of which at least a majority of the Securities or other interests having by their terms voting power to elect a majority of the board of directors (or other governing body or Person(s) performing similar functions) with respect to such corporation, limited liability company, partnership or other entity is directly or indirectly, though one or more intermediaries, Beneficially Owned or controlled by such Person or by any one or more of its Subsidiaries, or by such Person and one or more of its Subsidiaries, or (ii) that would be required to be consolidated in such Person’s financial statements under GAAP.

“Superior Proposal” means a bona fide written Takeover Proposal from any Person (other than Parent and its Subsidiaries or Affiliates) that was not solicited in violation of this Agreement for a direct or indirect acquisition or purchase of 50% or more of the consolidated assets (including equity interests in Subsidiaries) of the Company, or 50% or more of any class of equity securities or voting power of the Company, any tender offer or exchange offer that if consummated would result in any Person beneficially owning 50% or more of any class of equity securities or voting power of the Company, or any merger, consolidation, share exchange, business combination, recapitalization, liquidation, dissolution, or similar transaction involving the Company or any of the Company Subsidiaries pursuant to which such Person (or its stockholders) would own 50% or more of the consolidated assets of the Company or 50% or more of any class of equity securities of the Company or of any resulting parent company of the Company (in each case other than the Transactions), (A) which is reasonably capable of being completed within a reasonable period of time on the terms set forth in such proposal, taking into account all financial, legal, regulatory, and other aspects thereof that the Company Board in good faith deems relevant, (B) for which the third party has demonstrated that the financing for such offer is fully committed or is reasonably likely to be obtained, in each case as determined by the Company Board (or a committee thereof) in its good faith judgment (after consultation with the Company’s financial advisors and outside legal counsel), and (C) which the Company Board has determined in its good faith judgment would, if consummated, result in a transaction more favorable to its stockholders from a financial point of view than the Transactions after taking into account all such factors and matters deemed relevant in good faith by the Company Board, including legal, financial (including the financing terms of any such proposal), regulatory, timing or other aspects of such proposal, the transactions contemplated hereby, and after taking into account any changes to the terms of this Agreement offered in writing by Parent in response to such Superior Proposal pursuant to, and in accordance with, Section 5.2, as applicable.

“Takeover Proposal” means any inquiry, proposal, or offer from any Person or “group” (within the meaning of Section 13(d)(3) of the Exchange Act) (other than Parent and its Subsidiaries or Affiliates) relating to (A) any direct or indirect acquisition or purchase, in a single transaction or series of related transactions, of 15% or more of the consolidated assets (including equity interests in Subsidiaries) of the Company, or 15% or more of any class of equity securities of the Company, (B) any tender offer or exchange offer that if consummated would result in any Person or “group” beneficially owning 15% or more of any class of equity securities of the Company, and (C) any merger, consolidation, share exchange, business combination, recapitalization, liquidation, dissolution, or similar transaction, or series of related transactions, involving the Company or any of its Subsidiaries pursuant to which such Person (or its stockholders) or “group” would own 15% or more of the consolidated assets of the Company or 15% or more of any class of equity securities of the Company or of any resulting parent company of the Company.

“Taxes” means any and all federal, state, local, foreign or other taxes of any kind (together with any and all interest, penalties, additions to tax and additional amounts imposed with respect thereto) imposed by any Governmental Entity, including taxes or other similar charges on or with respect to income, franchises, windfall or other profits, gross receipts, property, capital, sales, use, transfer, inventory, license, capital stock, payroll, employment, unemployment, social security, workers’ compensation, severance, stamp, occupation, premium or net worth, and taxes or other similar charges in the nature of excise, withholding, ad valorem, value added, estimated taxes, or custom duties.

“Tax Return” means any report, return, document, declaration, or other information, schedule, statement, or filing required to be filed with respect to Taxes (whether or not a payment is required to be made with respect to such filing), including information returns, any documents with respect to or accompanying payments of estimated Taxes, or with respect to or accompanying requests for the extension of time in which to file any such report, return, document, declaration or other information.

“Trade Secrets” means all trade secrets and all other confidential information, ideas, know-how, inventions, proprietary processes, product recipes, formulae, models, and methodologies.

“Transaction Expenses” means (a) all amounts payable by the Company for all out-of-pocket costs and expenses incurred in connection with the Transactions, including in connection with the preparation for, negotiation of or consummation of the Transactions contemplated herein, including fees, costs and expenses for legal counsel, accountants, investment banking firms, and other professional and third party advisors; and (b) severance payments, change of control, sales, transaction, or retention bonuses or similar compensatory payments or amounts and benefits payable (and in each case, including the employer-portion of any payroll Taxes arising in connection with any of the foregoing amounts) that become payable pursuant to any arrangement or agreement with the Company or any of their Affiliates as a result of the consummation of the Transactions.

“Warrants” means, collectively, the First Warrant and Second Warrant, and each, a “Warrant”.

“Willful Breach” means a material breach, or failure to perform, that is a consequence of an act or omission undertaken by the breaching Party with knowledge (or that should have been made with knowledge under the circumstances) that the taking of, or failure to take, such act would, or would be reasonably expected to, cause a material breach of this Agreement.

(b)         Index of Defined Terms. In addition to the terms defined in Section 8.16(a), the following terms shall have the meanings ascribed to such terms in the Sections set forth below: